FOR PUBLICATION
IN THE INTERMEDIATE COURT OF APPEALS
---o0o---
IN
THE INTEREST OF JOHN DOE,
Born on July 8, 1987,
Minor-Appellant
NO. 25580
APPEAL
FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-J NO. 0049085)
JUNE 1, 2005
BURNS, C.J., WATANABE AND LIM, JJ.
OPINION OF THE COURT BY BURNS, C.J.
Minor-Appellant John Doe (Doe), born on July 8, 1987, appeals from (1) the October 2, 2002 Decree Re: Law Violation Petitions and (2) the January 22, 2003 Findings of Fact and Conclusions of Law and Order Denying Motion for Reconsideration entered in the Family Court of the First Circuit. (1)
Doe asserts the following points of error:
A.
The court erred in denying Doe's motion for
reconsideration as to its denial of his motion to
hear the motion to suppress
prior to trial.
We affirm.
As indicated in Doe's point of error "A" above, there was a combination evidentiary hearing on the pre-trial motion to suppress and the trial on the merits. The record on appeal contains two transcripts of that one hearing. The transcript prepared by Florencia L. Fines reflects that it is for the motion to suppress. The transcript prepared by A. Haunani Ho does not limit itself. As did the parties, we will cite to the latter transcript.
BACKGROUND
On March 12, 2001, Sharmain Pedro (Pedro) was spending time with her college friends in Waikk. At around eight o'clock in the evening, Pedro received a call from her husband suggesting that Pedro come home since she had taken Naproxen (2) earlier during the day. Pedro advised her husband that "it would be a while[.]" At "about 11:00" they made plans for Pedro to go to the zoo and to call her husband when she got there. When Pedro and her friends were unable to find their way to the zoo, Pedro was dropped off on Ala Wai Boulevard near Paoakalani Street. Pedro was walking along Ala Wai Boulevard when she heard footsteps behind her. She turned to look behind her because she was walking a little slow with a cane and she wanted to "see which way they're coming so [she] can then move over to the left or to the right[.]" Pedro stated that she saw two males "walking fast" towards her and that they were yelling at her and asking if she "had a couple dollars . . . to spare." Pedro testified that by the time she "shook [her] head no" they were about "5 feet [away] from [her]." The taller male was "wearing a white shirt, and the blue jeans and some tennis shoes." The shorter male was "wearing a beige shirt and, . . . some windbreaker pants and slippers." Both males were "kind of gasping for air and breathing really heavy" and "sweating". The taller male "kind of reeked of alcohol and just body odor." Pedro asked the males to leave her alone. The taller male asked her if she "had a boyfriend" and "for [her] number[.]" When the taller male "got in [her] face" she "was then turned sideways." As she was getting ready to turn back to walk, the shorter male "was already in front of [her,]" "very close to [her]." Pedro then noticed that the taller male was holding "like a little black stick" that stuck out of his hand about three inches. The taller male struck Pedro's face. Pedro put her face down because she felt it "burning". "The extreme pain started when [she] was cut on the face with that instrument that the tall boy had[.]" Pedro heard the shorter male tell the taller male "to grab [Pedro's] chains." Pedro grabbed the taller male's shirt in an attempt to stop him from striking her again. Pedro wrestled with the taller male and resisted the shorter male's attempts to take from her grasp her small, box Calvin Klein purse. Eventually, three necklaces, the purse, and a watch were taken from her. She curled up in a ball, saw the taller male's white tennis shoes "at her head and [she] felt two, three kicks in [her] back." In her words, "By then, they -- they were, um, tellin' each other, you know, let's go and laughing." Pedro dragged herself to a pole chain, pulled herself up, and called for help. She walked to a bus stop and laid down. After she told some people walking by that she needed help, the police came and an ambulance arrived to assist her.
While taking Pedro to the hospital, the ambulance detoured to Jefferson Elementary School where Pedro was asked to sit up and look at some people there to see if she could identify the person or persons who attacked her. Pedro looked through the ambulance window. She testified, in relevant part, as follows:
A Um, there was officers to the left, and there was people standing around on the street, and there was some officers, um, behind them. So there was a -- a lot of people there.
A Yes, pretty much.
A Um, yes.
Okay. Can you describe for us, please, the -- the clothing of -- of the minor on that night?
. . . .
A Uh, he was wearing a white t-shirt and blue jeans and tennis shoes.
A Um, I couldn't see his chain and he was wearing a different shirt.
A Um, he was wearing a red shirt then.
A No.
Q . . . Was he wearing a necklace, . . . could you see that necklace on Paoakalani?
Q Did you see it on him at Jefferson Elementary School?
Q Part of it?
Q Now, . . . are you actually sure that the boy who kicked you and who was with the tall boy and who grabbed your purse and who laughed as he ran away is the same boy sitting in this courtroom?
. . . .
How long were you there, if you can remember?
Q What things did they do at that time at Straub to you?
Officer Chris Bugarin (Officer Bugarin) of the Honolulu Police Department testified, in relevant part, as follows:
Q All right. How did you advise the ambulance where to go and what was gonna [sic] happen?
Q Okay. Did you say we'll line him up or them up?
Q Okay. Do you remember--
Q Okay. And is that what happened?
Q And how was he lit up?
Q Was he the only person lit up like that, at this time the identification was taking place?
Q And was he in custody at that time?
Q Was he accompanied or within a foot or two or [sic] another uniformed police officer?
Q Was there anyone else standing that close to him?
Q Were there any other civilians that were being highlighted or demonstrated as potential suspects?
Q Okay. And were there a number of police cars there and Cushmans?
Later that day, Pedro went to the police station to view a photographic line-up. Pedro selected picture no. 5, but with the following qualification:
Q In fact, weren't your words that you were not sure, but it looks like he could be the one?
Q And your other words were he may have been the one who robbed me? Correct?
Picture no. 5 was a picture of Doe.
On March 14, 2002, the State of Hawaii filed a petition, pursuant to Hawaii Revised Statutes (HRS) Chapter 571, alleging as follows:
On or about the 13th day of March, 2002, in the City and County of Honolulu, State of Hawaii, [Doe] and an unknown person, while in the course of committing a theft, and while the unknown person was armed with a dangerous instrument, did use force against SHARMAIN PEDRO, a person who was present, with the intent to overcome the person's physical resistance or physical power of resistance, thereby committing the offense of Robbery in the First Degree, in violation of Section 708-840(1)(b)(i) of the [HRS].
On July 19, 2002, Doe filed a Motion to Suppress Identification of Minor. The motion asked the court to suppress the following for the reasons stated:
(Emphasis omitted.)
On October 2, 2002, immediately prior to trial, Doe requested that the court hear and decide the motion to suppress prior to commencing trial. Following arguments, the court orally ruled as follows:
At this time the ruling of the Court, since this is Family Court, under Chapter 571 . . . specifically . . . the Rules of Penal Procedure are not applicable, as counsel know. Therefore, the Court will join all issues for trial and will at the appropriate time entertain any motion by the public defender. But for the record, both the motion to suppress will be heard together with the underlying issues at trial.
Soon thereafter, the trial began. Pedro and Officer Bugarin testified as stated above.The defense presented two witnesses. The first witness was Dominic Perreira (Perreira). Perreira testified that he was with Doe on the night of the incident. They took a bus from Mililani and had to get off at Nimitz Highway because their transfers expired. After waiting about fifteen minutes, they caught a taxicab to Waikk and proceeded to Makee Road. Perreira and Doe left the taxicab, hopped over a fence, and hid in a recycling bin at the Thomas Jefferson Elementary School. Perreira and Doe eventually left the recycling bin and split up in different directions. Perreira testified that he thought that he saw Doe head towards Pualani Way on the school grounds. This happened sometime between 11:00 p.m. and midnight.
Doe's second witness, Chau Nguyen (Nguyen) testified, through an interpreter, that he was the taxi driver who picked up the two young males near the airport that night. He identified Doe as one of the two young males. Nguyen testified that he stopped on Makee Street. When one of the young males asked him to "change a one hundred dollar bill[,]" Nguyen feared that he might be robbed so he "pick[ed] up [his] cellular phone with [his] car key, and [he] get off and [he] go around and open [other] side door and [he] open the door for them." Nguyen stated that after he opened the door, Doe asked him for money, so Nguyen "[ran] to Kuhio and [was] yelling." After Nguyen started yelling, the two males ran away.
Thereafter, Doe voluntarily, knowingly, and intelligently waived his right to testify.
At the conclusion of the October 2, 2002 trial, the court first considered the motion to suppress and decided as follows:
Based on the evidence reviewed, the Court is gonna [sic] deny the motion to suppress the identification based on the arguments of the prosecution and the Court's notes that do evidence the fact that this complaining witness did have opportunities on at least those four occasions to observe this minor.
For those reasons, the Court is gonna [sic] [deny] the motion to suppress.
The court then considered the merits of the case and decided as follows:Based on the review of the evidence and
following hearing and after full consideration of the
evidence, this case does in fact hinge on the accuracy or reliability
of the complaining witness.
On that basis, the Court is gonna [sic] adjudicate him a law violator under [HRS § 571-11(1)] based on my review of the substantial and credible evidence before the Court.
On October 2, 2002, the court entered its Decree Re: Law Violation Petitions, that states, in relevant part, as follows:After full consideration of the admitted evidence the Court finds that the material allegations of the petition(s) have been proved beyond a reasonable doubt and that the minor is a law violator within the purview of HRS Section 571-11(1).
1. The minor is continued on probation until the further order of the court.
b. The minor shall write a
letter of apology to the victim with the assistance of his counsel and
submit it to the court
officer within 14 days of
this hearing.
c. The minor shall remain away from and have no contact with Dominic Perreira.
2. The minor/parent(s)
shall make restitution in the sum of $665.00, payable in monthly
installments of no less than $100.00
beginning November 25,
2002. The minor's parent(s) are made a
party for the purposes of restitution.
4. The minor and his
parents shall cooperate with [the Department of Education], all
services, and
any recommended
treatment with [sic] until
clinically discharged.
4. Errors occurred during the trial some of which are listed below:
b. Second, insufficient evidence was presented at trial to meet the requirement of proof beyond a reasonable doubt[.]
At a hearing on December 12, 2002, Doe argued that, consistent with Hawai`i Rules of Penal Procedure (HRPP) Rule 12(e) (2004), "the motion to suppress must be decided prior to the commencement of trial unless stipulated by all the parties." The State responded that "[t]he Rules of Penal Procedure clearly don't apply to 571-11 hearings, which is what this was. . . . Juvenile proceedings are specifically exempted." At the conclusion of the hearing, the court orally ruled as follows:Based on the arguments before the Court and based further on the Court's careful reading of both the submittals of the defense and the verbal arguments of the State, based further on the Court's review of [HRPP] sections 54(a) and 54(b), as well as the further case citations, specifically by the defense, I believe it was State v. Thomas, which was 72 Haw. 48, and further the citation by the State of Hawai`i to In re Doe, an [Intermediate Court of Appeals] opinion at 79 Haw. 265, the Court will hereby deny the motion for reconsideration based on the current state of the law as this Court understands it to be. Specifically, that the Rules of Penal Procedure clearly exclude juvenile proceedings held pursuant to Chapter 571-11, and in this case it's quite clear that those procedures do not govern the procedures within the family court.
On January 22, 2003, the court entered the following written Findings of Fact and Conclusions of Law and Order Denying Motion for Reconsideration:
1. A Petition was filed in
the family court March 13, 2002 charging the minor with committing the
offense of Robbery in the Second
Degree under police report
number 02-092338;
3. The minor filed a
Motion to Suppress Identification of Minor on July 19, 2002, seeking to
suppress all pre-trial identification,
including the photographic
line-up, and was based upon Rules
12 and 47, [HRPP];
5. Trial was held on October 2, 2002 and the minor was adjudicated to be a law violator;
7. The court did not hold
a separate hearing on the motion to suppress but, upon request by the
State, consolidated the motion
with the trial over the
objection of defense;
9. The Court denied, after
argument, defense's motion to suppress the identification of the minor
by the complaining witness,
Sharmain Pedro;
10. Rule 54(a), [HRPP]
states that the Rules of Penal Procedure apply to all penal proceedings
except as provided in Rule 54(b),
which specifically exempts
[HRS] section 571-11 juvenile
proceedings;
12. State v. Thomas, 72 Haw. 48 (1991) is neither applicable nor controlling;
A notice of appeal was filed on January 9, 2003. This appeal was assigned to this court on September 2, 2003.
STANDARDS OF REVIEW
A.
"A finding of fact
is clearly erroneous when (1) the record lacks substantial
evidence to support the finding, or (2) despite substantial evidence in
support of
the finding, the appellate court is nonetheless left with a definite
and firm
conviction that a mistake has been made." State v. Locquiao, 100
Hawai`i 195, 203,
58 P.3d 1242, 1250 (2002) (citation omitted).
B.
Questions or conclusions of law are answered or reviewed upon appeal under the right/wrong standard of review. Maile Sky Court Co., Ltd. v. City & County of Honolulu, 85 Hawai`i 36, 39, 936 P.2d 672, 675 (1997).
C.
When reviewing family court decisions for an abuse of discretion, it is well established that
the family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Under the abuse of discretion standard of review, the family court's decision will not be disturbed unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.
In re Doe, 77 Hawai`i 109, 115, 883 P.2d 30, 36 (1994) (internal quotation marks, citations, brackets, and ellipsis omitted).D.
"We answer questions of constitutional law by exercising our own independent judgment based on the facts of the case. Thus, we review questions of constitutional law under the 'right/wrong' standard." In re Doe, 104 Hawai`i 403, 405, 91 P.3d 485, 487 (2004) (ellipsis omitted) (quoting State v. Jenkins, 93 Hawai`i 87, 100, 997 P.2d 13, 26 (2000)).
E.
We review the sufficiency of evidence on appeal as follows:
Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Richie, 88 Hawai`i 19, 33, 960 P.2d 1227, 1241 (1998) (brackets omitted) (quoting State v. Quitog, 85 Hawai`i 128, 145, 938 P.2d 559, 576 (1997)). "'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Richie, 88 Hawai`i at 33, 960 P.2d at 1241 (citation omitted).III.
DISCUSSION
A.
Doe contends that the court "erred in denying Doe's motion to hear his motion to suppress prior to trial and in consolidating the taking of evidence on the motion to suppress with the trial testimony." Doe argues that (1) the family court erroneously consolidated the hearing on the motion to suppress identification with the trial, in violation of HRPP Rule 12(e); and (2) even assuming HRPP Rule 12(e) was not applicable to this case, consolidating the hearing on the motion with the trial violated "the essentials of due process and fair treatment."
Ruling on motion. A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue or until after verdict; provided that a motion to suppress made before trial shall be determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
HRPP Rule 54(b) (2004) states, "These rules shall not apply to . . . family court proceedings under section 571-11 of [HRS][.]" Doe argues that "even if the HRPP did not specifically apply in this case, the principles behind the rule still could mandate use of the same procedure."
In Doe, the minor objected to the use of HRPP rules in HRS § 571-11 proceedings, including a consolidation of the petitions charging the minor and his brother for the same incident, as well as the use of HRPP Rules 8, 12, 13, and 14. In re Doe, 79 Hawai`i 265, 269-270, 900 P.2d 1332, 1336-1337 (App.1995). This court decided,
The HRPP do not apply to HRS § 571-11(1) proceedings. HRPP Rule 54(b). However, in the absence of comparable rules in the Hawai`i Family Court Rules (HFCR), this court has approved of the use of HRPP rules in HRS chapter 571 proceedings. In re Doe, 3 Haw.App. 325, 650 P.2d 603 (1982). Although this court acknowledged that the HFCR "do not contain a rule similar to Rule 29, HRPP (1977)," it nevertheless stated that "an accused in family court proceedings under HRS § 571-11(1) has the same right to move for a judgment of acquittal as does an accused in a proceeding to which Rule 29, HRPP, is applicable." Id. at 326 n. 1, 650 P.2d at 605 n. 1. It was also held, in connection with another HRPP rule, that "the thought behind . . . Rule 7(c) of the Hawaii [Hawai`i] Rules of Penal Procedure (1977) which states that '[f]ormal defects [in the charge] . . ., shall not be ground for dismissal of the charge or for reversal of a conviction if the defect did not mislead the defendant to his prejudice' applies in family court situations." Id. at 329, 650 P.2d at 607. While HRS § 571-11(1) proceedings are not criminal cases, they are treated, in many respects, like criminal cases where necessary and appropriate. "[A] hearing to determine delinquency need not 'conform with all of the requirements of a criminal trial[;]' but . . . the procedures employed 'must measure up to the essentials of due process and fair treatment.'" In re Doe, 70 Haw. 32, 761 P.2d 299 (1988) (quoting In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967) (internal quotation marks and citation omitted)). For example, on appeal, HRS § 571-11(1) proceedings are subjected to the substantial evidence standard applied to appeals from criminal convictions. See Doe, 3 Haw.App. at 332, 650 P.2d at 608. The rules of evidence in criminal cases apply to HRS § 571-11(1) proceedings, and evidence which violates "the child's rights secured under the constitution of the United States or the State of Hawaii [Hawai`i]" may not be admitted. HRS § 571-41(c) (1985). The court and the parties here treated these proceedings similarly, not questioning the relevance of HRPP Rules 8, 12, 13, and 14.
(Brackets in original.) Doe, 79 Hawai`i at 272, 900 P.2d at 1339. Clearly, although Doe permits, it does not mandate, the use of HRPP rules in HRS § 571-11 proceedings.
Citing Doe's requirement that "the procedures employed 'must measure up to the essentials of due process and fair treatment[,]'" in the instant case, Doe contends that his right to due process was violated when his motion to suppress was heard at trial, rather than pre-trial. In support of his contention, Doe argues the following:
First, if the court had held the motion to suppress [hearing] prior to trial, Doe would have been able to testify at the motion to suppress [hearing] without compromising his Fifth Amendment right not to testify at trial. By consolidating the evidence on both, Doe was forced to choose between testifying to challenge the impermissibly suggestive show-up and giving up his Fifth Amendment right not to testify at trial.
Third, by consolidating the motion and the trial, the court utilized the totality of the evidence in ruling on the motion to suppress, not just the evidence that would have been adduced at a motion to suppress [hearing].
(Citation omitted.) Doe's arguments are not persuasive.
It has been said that the purpose behind the HRPP Rule 12(e) requirement that a hearing on a motion to suppress be held prior to trial is to allow the State to appeal an adverse ruling on a motion to suppress. (3) In State v. Doyle, 64 Haw. 229, 638 P.2d 332 (1981), the Hawai`i Supreme Court explained:
Rule 12(e) of the Hawaii Rules of Penal Procedure expressly provides that "a motion to suppress made before trial shall be determined before trial." The reason given . . . is to provide the prosecution with the opportunity, prior to trial . . . to appeal a ruling on the defendant's motion to suppress which is adverse to the State.
64 Haw. at 231, 638 P.2d at 334 (footnote omitted).The following quote describes an additional purpose:
The
rule adopted by the courts below does not merely impose upon a
defendant a condition which may
deter him from asserting a Fourth Amendment objection--it imposes a
condition of a kind to which
this Court has always been peculiarly sensitive. For a defendant who
wishes to establish standing
must do so at the risk that the words which he utters may later be used
to incriminate him. Those
courts which have allowed the admission of testimony given to establish
standing have reasoned that
there is no violation of the Fifth Amendment's Self-Incrimination
Clause because the testimony was
voluntary. As an abstract matter, this may well be true. A defendant is
'compelled' to testify in
support of a motion to suppress only in the sense that if he refrains
from testifying he will have
to forego a benefit, and testimony is not always involuntary as a
matter of law simply because it
is given to obtain a benefit. However, the assumption which underlies
this reasoning is that the
defendant has a choice: he may refuse to testify and give up the
benefit. When this assumption is
applied to a situation in which the 'benefit' to be gained is that
afforded by another provision of
the Bill of Rights, an undeniable tension is created. Thus, in this
case Garrett was obliged
either to give up what he believed, with advice of counsel, to be a
valid Fourth Amendment claim
or, in legal effect, to waive his Fifth Amendment privilege against
self-incrimination. In these
circumstances, we find it intolerable that one constitutional right
should have to be surrendered
in order to assert another. We therefore hold that when a defendant
testifies in support of a
motion to suppress evidence on Fourth Amendment grounds, his testimony
may not thereafter be
admitted against him at trial on the issue of guilt unless he makes no
objection.
Simmons v. United States, 390 U.S. 377, 393-94, 88 S.Ct. 967, 976 (1968) (footnotes omitted).
Doe contends that the family court's consolidation of the hearing on the motion and the trial impaired his abilities (a) to use evidence adduced at the pre-trial hearing to impeach witnesses at trial, (b) to determine whether or not it would be necessary for him to testify at trial, and (c) to determine whether it would be necessary to conduct further discovery or investigation or to call other witnesses. As noted above, the requirements are that "the procedures employed 'must measure up to the essentials of due process and fair treatment[,]" must not "conflict with the judicial administration of HRS Chapter 571[,]" and must not be "unfairly prejudicial to the minor(s) involved." Doe does not offer, and we do not have, any basis for concluding that the impairments alleged by him violate one or more of these requirements.Doe contends (a)
that "if the court had held the motion to suppress [hearing]
prior to trial, Doe would have been able to testify at the motion to
suppress
[hearing] without compromising his Fifth Amendment right not to testify
at
trial[,]" and (b) that in consolidating the hearing on the motion with
the trial,
the family court considered the totality of the evidence presented when
it ruled
on his motion to suppress, rather than just the evidence that would
have been
adduced at a pre-trial hearing. We conclude that Doe could have, but
did not,
solve the Simmons
dilemma and his problem by taking advantage of the precedent
that "where a case is tried without a jury, it is presumed that the
presiding
judge will have disregarded the incompetent evidence and relied upon
that which
was competent." State v.
Antone, 62 Haw. 346, 355, 615 P.2d 101, 108 (1980). In
other words, Doe could have advised the court that he would testify
only with
respect to issues presented by his motion to suppress, that he was not
giving up
his Fifth Amendment right not to testify at trial, and that absent his
consent,
the court must not consider his testimony when deciding the merits of
the case. On appeal, Doe cannot complain of the harm, if any, he
suffered as a result of his
failure to do this.
B.
Reliability of Identification Procedures
Doe contends that "[t]he court erred in denying Doe's motion to suppress where the show-up procedure used by the police was impermissibly suggestive and Pedro's identification, considering the totality of the circumstances, was not sufficiently reliable."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. Okumura, 78 Hawai`i 383, 391, 894 P.2d 80, 88 (1995) (brackets omitted) (quoting State v. DeCenso, 5 Haw.App. 127, 131, 681 P.2d 573, 577-78 (1984)). "[Q]uestions of suggestiveness and reliability are questions of law that are freely reviewable on appeal." Id. On the other hand, answering these questions involves determinations of fact by the court. Id. at 392, 894 P.2d at 89. "Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the 'clearly erroneous' standard." Id. (quoting State v. Blake, 5 Haw.App. 411, 414, 695 P.2d 336, 338 (1985)).Pedro identified Doe in two instances. The first identification occurred while Pedro was in the ambulance after the attack. Doe argues that the field show-up procedure which occurred at this time was impermissibly suggestive because the show-up procedure "consisted of handcuffing Doe, flanking him with a uniformed police officer, putting him essentially on center-stage and spotlighting him with the headlights from the police vehicles and then having Pedro drive up in the ambulance to identify him." The State agrees that this procedure was impermissibly suggestive.
Doe must also prove that based on the totality of the circumstances, Pedro's identification was not sufficiently reliable. Doe argues that based on the totality of the circumstances, Pedro's identification of Doe at the show-up was not sufficiently reliable because: (1) Pedro only had brief glances of Doe; (2) Pedro's attention was primarily focused on the taller male; (3) the accuracy of Pedro's description of the criminal is in doubt because she insisted the shorter male was wearing a beige or tan shirt, and Doe was arrested wearing a red shirt; (4) Officer Bugarin described Pedro as appearing "dazed and confused" at the time of the show-up; and (5) there was a long length of time between the crime and the time that Pedro identified Doe as the assailant.
Doe's arguments
(1) and (2) above are without merit. Pedro testified that she
first noticed Doe and the larger male when she turned behind her after
hearing
footsteps. Pedro turned around again when they were about fifteen feet
away from
her. The third time she turned around was when they were five feet away
from her. Pedro testified that there were street lights and that she
could see their faces. In addition, while the older male was talking to
her, Doe stood directly in her
face and blocked her way.
Doe's argument (3)
above is without merit. When Pedro originally saw the two
males, the taller male was "wearing a white shirt, and the blue jeans
and some
tennis shoes" and the other male "was wearing a beige shirt and, um,
some
windbreaker pants and slippers." Pedro also stated that Doe was wearing
a
necklace outside of his shirt. At the time of the identification
procedure, Doe
was "wearing a red shirt[.]" However, when the officer lifted Doe's
shirt, there
was a white t-shirt and "the same necklace" underneath.
In argument (4) above, Doe argues the following:
We conclude that Doe's argument suggesting that Pedro was unable to affirmatively identify Doe as the assailant is without merit. Officer Bugarin testified on cross-examination at trial, in relevant part, as follows:
Q Okay. And it was your observation, correct, that she appeared dazed and confused?
Q You say, "oh, yes." Was that pretty clear to you?
. . . .
A Um, she just had that gash on her face.
No evidence was introduced suggesting that the medication taken by Pedro earlier in the day impacted Pedro's ability to identify Doe.
Doe argues that he could not be convicted as an accomplice to Robbery in the First Degree because "there was no evidence that Doe (or the shorter male) used any objects during the robbery[.]" HRS § 708-840 (1993 and Supp. 2003) states, in relevant part, as follows:
Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft:
(b) The person is armed with a dangerous instrument and:
(ii)
The person threatens the imminent use of force
against the person of anyone who is present
with intent to
compel acquiescence
to the taking of or escaping with the property.
HRS § 707-700 (1993) states, "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Pedro described the weapon as a "little black stick" which stuck out "about three inches out of [the assailant's] hand." Pedro stated that she could not see what was on the other end of the stick, but "felt something strike [her] face [and she] kinda went down and it started burning . . . ." Pedro testified that after the assailants ran away, there was "blood that was running into [her] mouth." She also felt dizzy and so she laid down at a bus stop. Once the ambulance came, Pedro's wounds were attended to and eventually stitched up.
The question is whether there is substantial evidence that the manner in which the "little black stick" was used was capable of producing serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The answer is yes.
CONCLUSION
Accordingly, we affirm the family court's (1) October 2, 2002 Decree Re: Law Violation Petitions and (2) the January 22, 2003 Findings of Fact and Conclusions of Law and Order Denying Motion for Reconsideration.
Jon N. Ikenaga,
Deputy Public Defender
for Appellant.