State v. Lauvao

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-SEP-2022
07:56 AM
Dkt. 148 MO
NO. CAAP-XX-XXXXXXX
(Consolidated with Nos. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
CAAP-XX-XXXXXXX
STATE OF HAWAIʻI, Plaintiff-Appellee, v.
LAMA LAUVAO, Defendant-Appellant, and
WESLEY SAMOA; NATISHA TAUTALATASI,
Defendants-Appellees
CAAP-XX-XXXXXXX
STATE OF HAWAIʻI, Plaintiff-Appellee, v.
NATISHA TAUTALATASI, Defendant-Appellant, and
WESLEY SAMOA; LAMA LAUVAO, Defendants-Appellees
CAAP-XX-XXXXXXX
STATE OF HAWAIʻI, Plaintiff-Appellee, v.
WESLEY SAMOA, Defendant-Appellant, and
LAMA LAUVAO; NATISHA TAUTALATASI,
Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
In this consolidated appeal,1 Defendants-Appellants
Lama Lauvao (Lauvao), Natisha Tautalatasi (Tautalatasi), and
Wesley Samoa (Samoa) (collectively, Defendants-Appellants) appeal
from the September 13, 2019 Judgment of Conviction and Sentence
1
All three cases were consolidated under CAAP-XX-XXXXXXX.
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entered by the Circuit Court of the Third Circuit2 (Circuit
Court) against each Defendant-Appellant.
This case arises out of a September 17, 2018 incident,
captured on a surveillance video, in which the complainant, John
Kanui (Kanui), a security guard at the Kona Seaside Hotel (Kona
Seaside) in Kailua-Kona, Hawaiʻi, sustained severe life-
threatening injuries during an altercation involving Defendants-
Appellants and became quadriplegic as a result of those injuries.
Plaintiff-Appellee State of Hawaiʻi (State) charged Defendants-
Appellants by a September 19, 2018 Complaint with Attempted
Murder in the Second Degree (Attempted Murder Second) in
violation of Hawaii Revised Statutes (HRS) §§ 705-500 and 707-
701.5.3 Following a joint trial, the jury found Tautalatasi and
Samoa guilty as charged and Lauvao guilty of the included offense
of Assault in the First Degree (Assault First) in violation of
HRS § 707-710(1). Tautalatasi and Samoa were sentenced to life
terms of imprisonment with the possibility of parole. Lauvao was
sentenced to a ten-year term of imprisonment.
On appeal, Lauvao raises six points of error,4
contending that: (1) the State failed to prove beyond a
reasonable doubt that Lauvao did not act in defense of
Tautalatasi; (2) the Circuit Court plainly erred in allowing
Officer Len Hamakado (Officer Hamakado) to offer his subjective
and prejudicial narration of the events depicted in State's
2
The Honorable Melvin H. Fujino presided.
3
The Complaint charged Lauvao, Samoa, and Tautalatasi as principals
and/or accomplices with Attempted Murder Second, as follows:
On or about the 17th day of September, 2018 in the
County and State of Hawaii, WESLEY SAMOA, LAMA LAUVAO, AND
NATISHA TAUTALATASI, as principals and/or accomplices,
intentionally engaged in conduct, which, under the
circumstances as he, she or they believed them to be,
constituted a substantial step in the course of conduct
intended to culminate in their commission of the crime of
Murder in the Second Degree, said crime being intentionally
or knowingly caused the death of another person, JOHN KANUI,
thereby committing the offense of Attempted Murder in the
Second Degree, in violation of Section 705-500 and
707-701.5, Hawaiʻi Revised Statutes, as amended.
4
Lauvao's points of error have been edited for clarity. Portions
of Lauvao's Opening Brief, in its Points of Error and Argument sections, do
not comply with Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28.
2
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Exhibit 13A, a surveillance video of the incident (Incident
Video); (3) the prosecutor committed misconduct by demeaning the
defendants' defenses during voir dire; (4) the prosecutor engaged
in misconduct by adducing Officer Hamakado's lay opinion that
fists and legs were "deadly" or "dangerous" weapons; (5) the
Circuit Court's instructions to the jury were prejudicially
erroneous and misleading for using the term "lesser included
offenses" instead of "included offenses;" and (6) the Circuit
Court abused its discretion in allowing the admission of State's
Exhibit 45A, a video of Kanui undergoing rehabilitation
(Rehabilitation Video) three months after the incident, where any
minimal probative value was outweighed by its substantial
prejudice.
Tautalatasi raises four points of error,5 contending
that: (1) the Circuit Court erred in not conducting the required
on-the-record review of the Rehabilitation Video as to its
probative value versus prejudicial effect; (2) the Circuit Court
erred in allowing the prosecutor to admit non-expert opinion
evidence of bare hands and feet as dangerous or deadly weapons,
and in allowing the prosecutor to review the Incident Video with
Tautalatasi, because it was cumulative, prejudicial and violated
Tautalatasi's constitutional right against self-incrimination;
(3) Tautalatasi was denied her right to effective counsel when
she was cross-examined on her opinion that bare hands and feet
constituted dangerous weapons, when she was asked to identify and
agree with the Incident Video in great detail, when Tautalatasi's
trial counsel (Trial Counsel) failed to object during cross-
examination, failed to present expert evidence on issues of
intent and the nature of dangerous or deadly weapons, failed to
object to the admission of the Rehabilitation Video, failed to
pursue severance of the trial, and for making damaging statements
during closing argument; and (4) while Tautalatasi has not found
5
Tautalatasi's points of error have been edited for clarity.
Portions of Tautalatasi's Third Amended Opening Brief do not comply with HRAP
Rule 28. Tautalatasi's Third Amended Opening Brief was filed December 7,
2021, following a substitution of Tautalatasi's counsel while the appeal was
pending. The State was allowed to file, and did file, a supplemental
answering brief on January 6, 2022.
3
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a Hawaiʻi case discussing whether bare hands and feet constitute
dangerous or deadly weapons, other jurisdictions have concluded
that they cannot be so considered.
Samoa raises eight points of error,6 contending that:
(1) there was insufficient evidence to support Samoa's conviction
where he did not attempt to cause Kanui's death and where he was
not an accomplice to Tautalatasi or Lauvao; (2) there was
insufficient evidence to support Samoa's conviction where he used
force to defend Tautalatasi; (3) the Circuit Court abused its
discretion in denying Samoa's motions to sever; (4) the Circuit
Court erred or plainly erred in allowing Officer Hamakado to
narrate during the playing of the Incident Video; (5) the Circuit
Court erred in granting the State's Motion to Determine
Voluntariness; (6) the prosecutor committed misconduct; (7) the
Circuit Court's instructions to the jury were prejudicially
erroneous and misleading for using the term "lesser included
offenses"; and (8) the Circuit Court abused its discretion in
allowing the State to adduce evidence of Kanui's condition three
months after the incident in the Rehabilitation Video.
After careful review, we conclude that the Circuit
Court abused its discretion in admitting the Rehabilitation
Video, and that this error was not harmless beyond a reasonable
doubt. We also conclude that the Circuit Court did not err in
denying the motions to sever, and that there was sufficient
evidence to support the challenged convictions of Lauvao and
Samoa.7 In light of our disposition vacating and remanding for a
new trial, we do not reach the remaining points of error.
I. BACKGROUND
A. Motions to Sever
On April 12, 2019, the Circuit Court heard Defendant
Wesley Samoa's Motion to Sever Defendants, filed January 22, 2019
6
Samoa's points of error have also been edited for clarity.
7
Tautalatasi does not challenge the sufficiency of the evidence
supporting her conviction.
4
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and March 12, 2019,8 to which Lauvao filed a joinder. The
Circuit Court also heard Samoa's Second Motion to Sever
Defendants filed during trial on June 18, 2019, with Lauvao's
Joinder to the motion. The Circuit Court denied the motions to
sever in a June 18, 2019 "Order Denying 1) Defendant Wesley
Samoa's Second Motion to Sever Defendants, filed June 18, 2019
and 2) Defendant Lama Lauvao's Joinder in Defendant Samoa's
Second Motion to Sever Defendants, filed June 18, 2019" (Order
Denying Second Motion to Sever), which stated in pertinent part:
The Court finds that the Defendants have not met their
burden with respect to their request for severance under
State v. Timas, 82 Hawaiʻi 499, 923 P.2d 916 (1996).
Defendants have failed to articulate and show any
irreconcilable defenses, any preclusions to and/or admission
of any damaging evidentiary items in a joint trial, and any
prejudice in this case, as such, severance is not warranted.
B. Motion in Limine, Rehabilitation Video
Following jury selection on June 12-13, 2019, trial was
held from June 18-21, 2019, and June 25, 2019, when the jury
reached its verdict. Prior to commencing trial, the Circuit
Court held a hearing on Motions in Limine. Lauvao's Sixth Motion
in Limine - Re: Videos of CW Post Incident, argued that the
Rehabilitation Video was inadmissible under Hawaiʻi Rules of
Evidence (HRE) Rule 403.9 The video consisted of footage of
Kanui receiving treatment at a rehabilitation hospital in
Colorado. The Circuit Court did not rule on Lauvao's Motion in
Limine regarding the admission of the Rehabilitation Video, nor
did the Circuit Court indicate on the record that it had reviewed
the video before issuing its ruling on the defense objections
during trial.
8
While the March 12, 2019 Motion to Sever was heard and disposed of
by the Circuit Court, there is no record of the January 22, 2019 Motion to
Sever being heard or disposed of by the Circuit Court.
9
HRE Rule 403 states in pertinent part: "Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."
5
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C. Trial Testimony
Testimony of Officer Len Hamakado
Hawaiʻi County Police Department (HCPD) Officer
Hamakado testified that he responded to the Kona Seaside shortly
after midnight on September 17, 2018. When he arrived on scene,
Kanui was on the ground and other people were in handcuffs.
Other officers who had arrived previously asked Officer Hamakado
to look for "video surveillance or a witness." Officer Hamakado
accessed the hotel surveillance system to download a digital
video recording from the camera that was facing the front of the
hotel, which was the Incident Video, State's Exhibit 13a. The
hotel's surveillance video did not record audio. The Incident
Video contained footage of the incident and was published to the
jury.
The following relevant events are depicted in the 25-
minute-long Incident Video with necessary additional details
clarified by trial testimony regarding the video: After Samoa's
sport utility vehicle (SUV) pulls up to the driveway fronting the
hotel lobby, Kanui drives up in his security cart. Kanui gets
out of his cart and has a verbal exchange with Samoa, as Lauvao
approaches. Samoa is wearing a tank top, and Lauvao is wearing a
backpack. Mahealani Kanehailua (Kanehailua), Samoa's girlfriend,
uses her phone to take a video of Kanui.10 Kanui returns to his
cart, makes a U-turn, and parks his cart facing the SUV.
Tautalatasi approaches, starts arguing with Kanui and becomes
increasingly agitated and animated. Lauvao tries to hold
Tautalatasi back from Kanui, but she pushes him away. Kanehailua
walks away to report Kanui to the hotel front desk staff. Lauvao
pulls Tautalatasi, but she pushes his arm away and continues
arguing with Kanui, pointing her finger in Kanui's face. Kanui
stands up and starts arguing with Samoa. Tautalatasi throws her
plate of food in Kanui's face. Kanui pulls Tautalatasi into the
cart toward him, grabs Tautalatasi by the hair, and yanks her
10
HCPD recovered the cell phone during its investigation, but an
analysis of the phone determined that no video was recorded during the
incident.
6
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head back and forth. Samoa pushes Lauvao out of the way and
steps in between Kanui and Tautalatasi. Tautalatasi falls
backwards out of the cart onto the ground and appears to hit the
back of her head. As Kanui exits the cart, Samoa attempts to
punch Kanui, who falls on his side on the ground in the front of
the cart. Samoa hits Kanui. Tautalatasi comes up from behind
Lauvao, kicks Kanui in the back of his head, and pushes Lauvao
forward. Samoa and Tautalatasi punch Kanui in the head as Lauvao
and Samoa stomp on Kanui with their feet. Kanehailua returns to
the scene and pushes Samoa away. Lauvao punches Kanui in the
head. Kanui, still on the ground, sweeps Tautalatasi's legs out
with his legs. Tautalatasi kicks Kanui, who trips her with his
legs. Lauvao punches Kanui in the head again. Samoa walks over,
pulls Kanui away from Tautalatasi, and strikes Kanui in the head.
Tautalatasi holds down Kanui's legs on the ground with her hands.
Lauvao kicks Kanui's face and Kanui stops moving. Lauvao leans
over Kanui, takes his hand and talks to him. Kanehailua moves
the SUV to Kanui's cart as Tautalatasi and Lauvao begin picking
up items from the ground. Kanui starts moving and Tautalatasi
kicks his face as Lauvao watches. Kanehailua pulls Tautalatasi
off of an unresponsive Kanui. Tautalatasi points to her head,
apparently indicating an injury to her forehead.11
Officer Hamakado also testified to the events shown on
the video after the confrontation, such as the arrival of police
officers, the police officers' initial investigation, and the
identity of the officers and the medic who initially examined
Kanui.
Physicians' testimony
The Kona Community Hospital emergency room physician
who treated Kanui on the day of the incident assessed that Kanui
was in critical condition. Kanui had a breathing tube in his
11
HCPD Officer Matthew Taira testified that when he questioned
Tautalatasi at the scene, he observed that Tautalatasi had "two small
contusions or bruises that were on her forehead." HCPD Officer Leonard Warren
testified that he observed a medium-sized lump above Tautalatasi's eyes and
that Tautalatasi "knew what she was saying and doing" and "appeared to be too
upset to be in pain."
7
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mouth, wore a neck collar, and was unresponsive. Kanui had
swelling around the eye area of the left side of his face and a
bloody nose. A CAT scan revealed that Kanui had blood pooling on
the right side of his brain, a bone fracture near his left eye, a
broken displaced neck bone, and a spinal cord injury. Kanui's
neck injuries were consistent with "a significant impact" such as
"blunt force trauma" from "a fist" or "a kick." Kanui was then
transferred to Queen's Medical Center (QMC) to be treated by a
trauma surgeon.
The QMC surgeon who examined and treated Kanui
testified that her observation upon first examining Kanui was
that he was at risk of death due to his severe spinal cord
injury. Kanui was paralyzed and could only move his biceps; he
could not move his fingers or legs.12
The QMC neurologist who treated Kanui testified that
Kanui had a fracture and dislocation of the cervical spine, an
injury which would result in paralysis and a loss of function
below the biceps. Kanui's injuries resulted in permanent
12
The QMC surgeon testified as to Kanui's paralysis:
[PROSECUTOR]. Was he paralyzed?
[QMC SURGEON]. Yes.
[PROSECUTOR]. On the 23rd?
[QMC SURGEON]. Yes. He was able to only move his
biceps.
[PROSECUTOR]. And so anything below the bicep he was
not able to move?
[QMC SURGEON]. Correct.
[PROSECUTOR]. Fingers?
[QMC SURGEON]. No.
[PROSECUTOR]. Legs?
[QMC SURGEON]. No. He could not move his fingers and
could not move his legs.
[PROSECUTOR]. Did you -- when you were observing him
from the 17th to the 23rd did he make any improvements in
his ability to move?
[QMC SURGEON]. Not that I could see. No.
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quadriplegia and loss of Kanui's ability to breathe on his own.13
13
The QMC neurologist testified as to Kanui's injuries:
[PROSECUTOR]. And when you were treating Mr. Kanui
were you able to make any determination about his -- whether
or not he had a spinal cord injury?
[QMC NEUROLOGIST]. Yes.
[PROSECUTOR]. And did he have a spinal cord injury?
[QMC NEUROLOGIST]. He did have a spinal cord injury.
[PROSECUTOR]. And did that result in him being a
quadriplegic?
[QMC NEUROLOGIST]. Yes, it did.
[PROSECUTOR]. And did it result in him having trouble
breathing?
[QMC NEUROLOGIST]. Yes, it did.
[PROSECUTOR]. How so?
[QMC NEUROLOGIST]. The upper cervical spine controls
movement of the diaphragm as well as movement of the chest
wall muscles. And so it's required for someone to take deep
breaths and to cough and clear secretions out of the lungs.
And so an injury at that level causes loss of breathing
control. And requires life support or a ventilator machine
to breathe for the person.
[PROSECUTOR]. And a person like Mr. Kanui who is
suffering this kind of injury and is quadriplegic, does that
get better?
[QMC NEUROLOGIST]. It can get better. There are
patients -- there are people who get better. Depends on how
severe the injury is.
[PROSECUTOR]. In your experience as a neurologist
does the typical patient you've met who's a quadriplegic get
better?
[QMC NEUROLOGIST]. Not if it's a complete injury.
[PROSECUTOR]. And did Mr. Kanui have a complete
injury?
[QMC NEUROLOGIST]. Yes, he did.
[PROSECUTOR]. So that quadriplegic state would be
permanent in those cases?
[QMC NEUROLOGIST]. Yes. Yes.
. . . .
[PROSECUTOR]. Was there any injury internally to Mr.
Kanui that you observed other than the spinal injury? The
neck injury?
(continued...)
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Kanui's spinal fracture caused injuries to the vertebral arteries
that supplied blood to the brain stem, leading to permanent brain
injury and loss of motor and sensory function. Kanui was at risk
13
(...continued)
[QMC NEUROLOGIST]. Because of the spine -- because of
the dislocation around the spinal fracture, he had injury to
the vertebral arteries which are the blood vessels that
supply blood to the brain stem and flow through the neck.
And so he had an injury and blockage of both of those blood
vessels. Both vertebral arteries.
[PROSECUTOR]. And in your analysis that was caused by
the spinal neck injury?
[QMC NEUROLOGIST]. Correct.
[PROSECUTOR]. And what does that mean for -- what did
that mean for Mr. Kanui having that blockage on the -- you
called it the vertebral arteries?
[QMC NEUROLOGIST]. That's right.
[PROSECUTOR]. What did that mean for Mr. Kanui?
[QMC NEUROLOGIST]. It caused -- it caused some
strokes which is a permanent injury to the brain in the
right side of the cerebellum.
[PROSECUTOR]. So in your treatment of Mr. Kanui you
determined he had permanent brain injury caused by this
blockage in the vertebral artery?
[QMC NEUROLOGIST]. Correct.
[PROSECUTOR]. And what -- where was that brain injury
at in Mr. Kanui?
[QMC NEUROLOGIST]. It was in the right hemisphere of
the cerebellum, which is the balancing coordination center
of the brain. It's in the back part of the brain around the
brain stem.
[PROSECUTOR]. And would that ever get better in your
opinion?
[QMC NEUROLOGIST]. No. No.
. . . .
[PROSECUTOR]. And in your treatment of Mr. Kanui over
the time period you treated him, did his condition improve
or deteriorate? What happened with him?
[QMC NEUROLOGIST]. Ah, his neurological condition did
not improve. It remained stable.
[PROSECUTOR]. And stable meaning?
[QMC NEUROLOGIST]. There was no recovery of motor or
sensory function and no recovery of his ability to breathe
on his own.
10
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of death when the neurologist initially examined him on the day
of the incident, September 17, 2018, and was still at risk of
death from his injuries when the neurologist last examined Kanui
on September 23, 2018.
Rehabilitation Video and testimony of Jennifer
Farrell
The State called Kanui's daughter, Jennifer Farrell
(Farrell), as a witness. Farrell testified to Kanui's transfer
for treatment from Queen's Hospital in Honolulu to Craig Hospital
in Colorado in October 2018, and the different rehabilitative
treatments that Kanui was undergoing.14
14
Farrell testified as follows:
[PROSECUTOR]. Now, Miss Farrell, are you familiar
with a place called Craig Hospital?
[FARRELL]. Yes.
[PROSECUTOR]. And how are you familiar with it?
[FARRELL]. Um, that's the hospital my dad was
transferred to after Queen's and I visited.
[PROSECUTOR]. You visited Craig Hospital?
[FARRELL]. Yes.
[PROSECUTOR]. And when did you visit Craig Hospital?
[FARRELL]. In October and November of last year.
[PROSECUTOR]. And why did you do that?
[FARRELL]. Because my dad was transferred there
because it's a specialty hospital that specializes in TBI's
and spinal cord injury.
[PROSECUTOR]. Alright. And TBI, your understanding
what's a TBI?
[FARRELL]. Traumatic Brain Injury.
[PROSECUTOR]. Alright. Now when you visited Craig
Hospital did you actually see your dad?
[FARRELL]. Yes.
[PROSECUTOR]. And in October can you describe what
you saw when you saw -- when you went to see your dad?
[FARRELL]. In October my dad was unable to move. He
was paralyzed. And he was placed on bed rest. And during
my time there we realized -- or the doctors realized that he
would need to go in for another spinal cord surgery. And he
(continued...)
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14
(...continued)
still had the halo on.
[PROSECUTOR]. Okay. In November when you went to go
visit your dad, can you describe what you observed from his
condition?
[FARRELL]. So he was still recovering from the
surgery. He had to be on bed rest for I believe six weeks
with post op. And he had a neck brace on. And he was
laying in the -- in the bed and he did get to get up in his
mobile wheelchair.
[PROSECUTOR]. When you said your dad got up, did he
get up -- did he get up on his own?
[FARRELL]. No. There is a hoist, a special motorized
hoist that the nurses and techs use to get him up, sitting
up, and then transfer him from the bed to his chair.
[PROSECUTOR]. And when you were visiting your father
did you observe the movement of your dad from his hospital
bed to the wheelchair?
[FARRELL]. Yes.
[PROSECUTOR]. And how it was done?
[FARRELL]. Yeah.
[PROSECUTOR]. And with respect to your visit with
your father did the nurses -- or did you learn how to move
your father from the bed to the wheelchair?
[FARRELL]. Yes. It's a long process.
[PROSECUTOR]. I'm sorry?
[FARRELL]. Yes.
[PROSECUTOR]. And how did you learn that that was
done?
[FARRELL]. The nurses and techs started showing us
how to do that.
[PROSECUTOR]. Okay. And what did you see?
[FARRELL]. Well there's a remote and you have to pull
the hoist out from the -- their's was in a cabinet. And
there needs to be -- I mean, you can't do it on your own.
There has to be three or four different people. And they
hooked him up and it basically lifts him off of the bed in a
seated position and transfers him to the chair.
[PROSECUTOR]. Alright. Now with respect to other
activities that you observed when you were visiting your
father at Craig Hospital did you become familiar with
something called bicep relaxation?
[FARRELL]. Yes.
[PROSECUTOR]. Okay. And how did you become familiar
(continued...)
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Farrell explained that the Rehabilitation Video recorded in
December 2018 at Craig Hospital showed Kanui undergoing
rehabilitative bicep relaxation technique exercises and being
lifted to and from his bed. Farrell testified to viewing the
Rehabilitation Video; that she did not record it and was not
present when it was recorded; and that the video depicted
procedures that she herself had observed at a different time.
The Rehabilitation Video was admitted over defense objection on
multiple grounds, including HRE Rule 403.15
14
(...continued)
with this bicep relaxation?
[FARRELL]. Um, his physical therapist or occupation
therapist had printouts for us and she also walked us
through -- whoever was visiting, walked us through the
motions how to relax different muscle groups because he
tends to tighten up.
[PROSECUTOR]. And did you observe the process of this
bicep relaxation?
[FARRELL]. Yes.
[PROSECUTOR]. Yeah. Okay. And with respect to when
your dad was in the wheelchair, did you see or observe how
your dad moved in the wheelchair?
[FARRELL]. Yeah.
[PROSECUTOR]. Okay. And what did you see when you
were there?
[FARRELL]. He had no control over his extremities.
[PROSECUTOR]. Okay. The wheelchair that your dad was
in did you see it being moved back and forth?
[FARRELL]. Yes.
[PROSECUTOR]. Okay. What did you see when you were
there at Craig Hospital with respect to movement of the
chair?
[FARRELL]. Oh, um, well basically actually there's an
area in the back where I was taught how to move him back and
forth and also tilt him.
15
Samoa objected to the Rehabilitation Video on grounds of hearsay,
Confrontation Clause violation, and because it was prepared for purposes of
litigation; these objections were joined by Lauvao and Tautalatasi. The
Circuit Court ruled that the Rehabilitation Video was nontestimonial, did not
violate the Confrontation Clause, and overruled the HRE Rule 403 objection
made by all Defendants-Appellants:
[PROSECUTOR]: Your Honor, I'm publishing State's
(continued...)
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The Rehabilitation Video published and played for the
jury is one minute, 9 seconds long, and appears to show Kanui in
an occupational therapy session with a female employee (Employee)
of Craig Hospital in Colorado. Kanui is shown sitting in an
electric-powered wheelchair with lifting capability, with two
straps across Kanui's chest and mid-section. Kanui is wearing a
black t-shirt and black exercise shorts, glasses, a neck brace,
and compression stockings with athletic shoes. Only Employee's
voice is audible in the video, as she instructs Kanui on how to
use the chair, and what may or may not work for him as he uses
the chair. The video also shows Employee working with Kanui's
left arm, and his left hand at the controls of the chair, lifting
him up and backwards. At approximately 15 seconds, Employee is
shown massaging Kanui's left bicep, and Employee is heard
affirming Kanui's efforts, saying, "Good." At 30 seconds, it
appears Kanui smiles for a moment and makes an inaudible comment
to Employee. Employee instructs Kanui on how to lower the chair.
Employee has Kanui lift the chair once more using the hand
control. At approximately one minute, after Kanui has lifted the
chair to its full height, Employee tells him, "Good," once again.
Defendants-Appellants' testimony
Lauvao and Tautalatasi testified, and Samoa did not.
Lauvao testified that he and Tautalatasi, his then-
fiancee, were vacationing in Kona and staying at the Kona
15
(...continued)
Exhibit 45a.
[SAMOA'S COUNSEL]: Objection under 403.
[LAUVAO'S COUNSEL]: Join the objection, Your Honor.
[TAUTALATASI'S TRIAL COUNSEL]: Miss Tautalatasi joins
the objection.
THE COURT: [Lauvao's Counsel]?
[LAUVAO'S COUNSEL]: Prejudicial to the jury.
THE COURT: No, you join in the objection?
[LAUVAO'S COUNSEL]: Yes. Oh, yes.
THE COURT: Overruled.
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Seaside. On September 16, 2018, Lauvao and Tautalatasi went to
the beach with Samoa, who is Lauvao's cousin, and Samoa's family.
Following the beach, Lauvao and Tautalatasi had dinner at Samoa's
parents' house. Lauvao and his family members were drinking
alcohol. Lauvao, Tautalatasi, Samoa, and Kanehailua stopped at a
karaoke bar before heading to the Kona Seaside at 11:30 to 11:45
p.m. While viewing the video, Lauvao testified to the events
depicted. Lauvao testified that during Tautalatasi's and Kanui's
dispute, Lauvao tried to get in between them and tried to grab
her arm and pull her away to protect her. After Tautalatasi
threw her plate of food at Kanui, Kanui fell backwards and pulled
Tautalatasi into the cart with him. Lauvao tried to pull
Tautalatasi out of the cart but she fell backward onto the
ground. Soon after, Lauvao stood in front of Kanui, but
Tautalatasi tried to push Lauvao out of the way, causing Lauvao
to almost fall onto Kanui. As Tautalatasi was on top of Kanui,
who was on the ground, and was hitting him, Lauvao stood and
watched. Lauvao then kicked Kanui. Lauvao testified that he was
not trying to kill Kanui when he kicked him. When Kanui grabbed
Tautalatasi by the hair, Lauvao slapped Kanui's arm to free
Tautalatasi from Kanui's grip. Lauvao testified that he removed
his backpack and reached out to Kanui, who was still lying on the
ground, to try and help Kanui to his feet. Tautalatasi began
hitting Kanui and Kanui grabbed her leg and tripped her; Lauvao
hit Kanui on the head after he tripped Tautalatasi. Samoa
punched Kanui, and Lauvao kicked Kanui at the same time. Lauvao
stated that it was not right for him to kick Kanui a second time,
but that he was not trying to kill Kanui. Lauvao subsequently
grabbed Kanui's arm and checked to see if Kanui was responsive
and still breathing. Lauvao testified that he was concerned that
Kanui might have been "really, really hurt . . . [b]ecause of
what happened." When Tautalatasi began to kick and punch Kanui
again, as Kanui was on the ground and not moving, Lauvao grabbed
her arm and tried to pull her off of Kanui, but ended up standing
there and watching Tautalatasi. Lauvao maintained that neither
he nor Samoa or Tautalatasi were trying to kill Kanui. He
testified that he recognized that Kanui was a very tall, large
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man. On cross-examination, Lauvao testified that as Tautalatasi
was arguing with Kanui, Lauvao was concerned for Tautalatasi's
safety. Lauvao testified that when Samoa was hitting Kanui while
Kanui was on the ground, Kanui was, at that moment, not a threat
to Lauvao or Tautalatasi. When he hit Kanui on the head, Lauvao
stated that he "stomped" Kanui, and that his "leg raised and came
down on [Kanui's] forehead." Lauvao testified that he was angry
and intoxicated at the time of the incident. On redirect
examination, Lauvao testified that everything happened quickly
and that none of the events were calculated and planned out.
Tautalatasi testified to feeling sick that day, with
chills, sore throat, and a cough. She drank a few shots of hard
alcohol to soothe her sore throat during the dinner at Samoa's
house. On the way back to the hotel, she and Lauvao were arguing
about seating arrangements in Samoa's car. At the time,
Tautalatasi was emotional towards Lauvao because she was hurt and
was angry towards him. When they pulled up to the lobby of the
Kona Seaside, Samoa was playing loud music from inside his SUV.
Tautalatasi, who was "in tears" and "an emotional wreck at the
time," exited Samoa's car and saw Lauvao and Samoa talking to
Kanui. Tautalatasi testified that she saw Kanui's cart but did
not know that Kanui was hotel security. She had her plate of
food and a jacket in her hands. Tautalatasi apologized to Kanui
for the loud music, to which Kanui replied that Tautalatasi was
making noise earlier that day, that he was going to "trespass"
them, and that the police were on their way to the hotel.
Tautalatasi testified that she said: "'We apologize for the
music. We turned it down. We're just trying to get to our room.
We're guests here.'" According to Tautalatasi, Kanui then said:
"'You fucking Samoans always making trouble' or 'You always
making trouble or always making noise.'" Tautalatasi was angry,
insulted, and appalled because Kanui "was a security guard and
authority figure." Tautalatasi claimed Kanui was "almost
taunting" when he said, "'[t]he cops are coming and you guys are
going to jail.'" Tautalatasi then threw her plate of food at
Kanui. Tautalatasi testified that Kanui grabbed Tautalatasi and
pulled her into the cart. Tautalatasi felt an object, such as a
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walkie-talkie or a flashlight, hit her on the side of her head,
right above her temple. She did not see what she was hit with
and did not remember hitting her head on the golf cart, but heard
a "crack," saw "black spots," and may have "blacked out little
bit." She testified that she did not know that, while she was in
the golf cart with Kanui, Lauvao and Samoa were standing near
her. Her next memory was lying on the ground and Lauvao trying
to pick her up, but that she did not want his help. Tautalatasi
testified that she did not remember the rest of what happened,
and probably remembered only "25 to 30 percent of the night."
Her memory was very hazy and she remembered bits and pieces after
watching the video.
Regarding the video, Tautalatasi testified that she had
seen the Incident Video "one time back in September [of 2018]
briefly" and that she had seen the video "earlier [that] week."
During cross-examination, Tautalatasi testified that while she
saw herself in the video kick Kanui twice in the head, including
once in the face, she did not remember kicking Kanui.
Tautalatasi acknowledged that, in the video, when Samoa was
punching Kanui in the head, Tautalatasi's hands were holding down
Kanui's legs. After Kanui was lying on the ground, motionless,
Tautalatasi kicked Kanui in the face, causing Kanui's body to
move backward forcefully. When Lauvao and Kanehailua tried to
pull her away from Kanui, she continued hitting Kanui's head and
upper body approximately fifteen to sixteen times. Tautalatasi
stated that while Lauvao moved one of her arms from Kanui, it was
was Kanehailua who pulled Tautalatasi off of Kanui. As Kanui
laid on the ground, Lauvao leaned over him and said, "'We were
guests here. We told you we were guests here.'" Tautalatasi
testified that she did not intend to kill, or even assault,
Kanui. She testified that she should have walked away.
D. Verdict
As to each Defendant-Appellant, the Circuit Court
instructed on Attempted Murder Second and the following included
offenses: Attempted Manslaughter Based on Extreme Mental or
Emotional Disturbance; Assault First; Assault in the Second
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Degree (intentionally or knowingly); Assault in the Second Degree
(reckless); Reckless Endangering in the Second Degree; Assault in
the Third Degree; and Assault in the Third Degree - Mutual
Affray. The jury found Lauvao guilty of the included offense of
Assault First, and found Tautalatasi and Samoa guilty as charged
of Attempted Murder Second.
Following sentencing on September 13, 2019, Defendants-
Appellants timely appealed.
II. STANDARDS OF REVIEW
Motion to Sever
An appellate court "reviews the denial of a
motion for severance for an abuse of discretion." State v.
Walton, 133 Hawaiʻi 66, 82, 324 P.3d 876, 892 (2014) (citations
omitted).
Admissibility of Evidence
A trial court's balancing of the probative value of
prior bad act evidence against the prejudicial effect of
such evidence under HRE Rule 403 (1993) is reviewed for
abuse of discretion. When such an abuse of discretion is
identified, it is grounds to vacate a conviction unless it
is harmless beyond a reasonable doubt.
State v. Feliciano, 149 Hawaiʻi 365, 372, 489 P.3d 1277, 1284
(2021) (citations and brackets omitted).
Sufficiency of the Evidence
The standard of review for sufficiency of the evidence
is well established; namely, 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, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. 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. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.
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State v. Bowman, 137 Hawaiʻi 398, 405, 375 P.3d 177, 184 (2016)
(quoting State v. Grace, 107 Hawaiʻi 133, 139, 111 P.3d 28, 34
(App. 2005)(internal citations omitted)).
III. DISCUSSION16
A. The Circuit Court did not abuse its
discretion in denying Samoa's motions
to sever
Samoa contends that the Circuit Court abused its
discretion in denying his motions to sever. Samoa asserts that
he was significantly prejudiced by having a joint trial with
Tautalatasi because Tautalatasi, who was "significantly more
culpable," engaged in more serious and violent behavior that
"evidenced her intent to inflict death or serious bodily injury,"
whereas Samoa only used measured force to protect Tautalatasi.
Samoa claims that the consolidation of proceedings allowed the
State to attribute Tautalatasi's more serious actions to Samoa
via accomplice liability. Per Samoa, his defense-of-others
defense "was significantly compromised because of Tautalatasi's
excessive use of force outside of the instances where Samoa was
justified in using force for her protection."
Hawaiʻi Rules of Penal Procedure (HRPP) Rule 8(b)(3)17
permits joinder of multiple defendants for a joint trial where
the charged offenses are "closely connected" such that "it would
be difficult to separate proof of one charge from proof of the
others." If, however, a defendant or the State is "prejudiced by
a joinder[,] . . . the court may order an election or separate
16
We have reordered, restated, and consolidated Defendants-
Appellants' points of error for clarity.
17
HRPP Rule 8(b)(3) provides for joinder of defendants:
(3) when, even if conspiracy is not charged and all of the
defendants are not charged in each count, the several
offenses charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time,
place and occasion that it would be difficult to separate
proof of one charge from proof of the others.
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trials of counts, grant a severance of defendants or provide
whatever other relief justice requires." HRPP Rule 14.
In deciding a motion for severance, the trial court must
balance possible prejudice to the defendant from joinder
with the public interest in efficient use of judicial time
through joint trial of defendants and offenses which are
connected. An appellate court may not conclude that the
defendant suffered prejudice from a joint trial unless it
first concludes that a defendant was denied a fair trial.
What might have happened had the motion for severance been
granted is irrelevant speculation.
Walton, 133 Hawaiʻi at 82-83, 324 P.3d at 892-93 (quotation marks
and internal citations omitted). The burden is on the defendant
to prove that the defendant was denied a fair trial. Id. at 84,
324 P.3d at 894 (citing State v. Timas, 82 Hawaiʻi 499, 512, 923
P.2d 916, 928 (App. 1996)). While there is no "test or exclusive
list of prejudices," a joint trial may be unfair to one defendant
when:
(1) the core of each defense is in irreconcilable conflict
with the other, (2) the defendant in question is prevented
from introducing evidence that would have been admissible in
that defendant's separate trial not involving other
defendants, or (3) evidence damaging to the defendant in
question is admitted and it would not have been admissible
in that defendant's separate trial not involving other
defendants."
Id. (citing State v. Gaspar, 8 Haw. App. 317, 327, 801 P.2d 30,
35 (1990) (other citations omitted)). Defendants are not
entitled to severance based on inconsistent defenses or because
"they may have a better chance of acquittal in separate trials."
Zafiro v. United States, 506 U.S. 534, 540 (1993). To establish
an abuse of discretion, the defendant "must demonstrate that
clear and manifest prejudice did occur." Walton, 133 Hawaiʻi at
85, 324 P.3d at 895 (quoting United States v. Tootick, 952 F.2d
1078, 1083 (9th Cir. 1991)).
Here, Samoa has not pointed to any specific basis for
severance, such as irreconcilable defenses, prejudicial admission
of evidence, or other examples of prejudice from a joint trial
with Tautalatasi. See Walton, 133 Hawaiʻi at 84, 324 P.3d at
894. Samoa's own argument -- that his "primary defense" was that
he was defending Tautalatasi from Kanui and that Tautalatasi used
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"excessive" force -- underscores the interconnectedness of the
offenses and the defenses, which militates in favor of a joint
trial. Samoa's assertions that Tautalatasi was more culpable and
that the joint trial with Tautalatasi prejudiced him, are akin to
claiming that he "ha[d] a better chance of acquittal" in a
separate trial, and is not a proper basis for severance. Zafiro,
506 U.S. at 540. Samoa's arguments do not demonstrate "clear and
manifest prejudice" establishing an abuse of discretion in the
denial of the motions to sever. See Walton, 133 Hawaiʻi at 85,
324 P.3d at 895.
B. The Circuit Court erred in admitting
Exhibit 45A, the Rehabilitation Video
Defendants-Appellants contend that the Circuit Court
erred in admitting the Rehabilitation Video, Exhibit 45a.
Tautalatasi specifically contends that the Circuit Court erred by
not performing an on-the-record review18 of the Rehabilitation
Video and by admitting the video in violation of HRE Rule 403.
Lauvao and Samoa contend that the Rehabilitation Video and
Farrell's testimony19 should have been excluded as irrelevant
under HRE Rule 402 and unduly prejudicial under HRE Rule 403.20
Tautalatasi's brief also includes argument based on HRE Rule 403.
18
Tautalatasi's point of error does not indicate where in the record
the alleged error of the lack of on-the-record review was objected to or
brought to the Circuit Court's attention pursuant to HRAP Rule 28(b)(4)(iii)
and (4)(A); this error is waived. See HRAP Rule 28(b)(4) ("Points not
presented in accordance with this section will be disregarded . . . .").
19
Both Lauvao and Samoa do not identify where in the record they
objected to Farrell's testimony. See HRAP Rule 28(b)(4)(iii) and (4)(A). No
specific objection to Farrell's testimony appears in the record. The
contentions regarding the admission of Farrell's testimony are waived. See
HRE Rule 103(a)(1); State v. Moses, 102 Hawaiʻi 449, 456, 77 P.3d 940, 947
(2003) ("As a general rule, if a party does not raise an argument at trial,
that argument will be deemed to have been waived on appeal . . . . ").
20
Lauvao does not identify in this point of error where in the
record the alleged error based on HRE Rule 403 occurred and where the error
was objected to or preserved, pursuant to HRAP Rule 28(b)(4)(ii) and (iii).
However, as this required information missing from the point of error section
appears in Lauvao's argument, we consider his point of error. See Marvin v.
Pflueger, 127 Hawaiʻi 490, 496, 280 P.3d 88, 94 (2012) (internal citations,
quotation marks, brackets, ellipses omitted) ("[N]oncompliance with Rule 28
does not always result in dismissal of the claims, and this court has
consistently adhered to the policy of affording litigants the opportunity to
have their cases heard on the merits, where possible. This is particularly so
where the remaining sections of the brief provide the necessary information to
identify the party's argument.").
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Samoa argues that the evidence of Kanui's physical condition
three months after the incident should have been excluded as
irrelevant because "the fact that Kanui was still paralyzed three
months after the incident had no bearing on whether the
defendants, at the time of the incident, intended to cause his
death." Citing State v. Pinero, 70 Haw. 509, 518, 778 P.2d 704,
711 (1989), Samoa asserts that the Rehabilitation Video was
"highly prejudicial and likely to 'rouse the jury to
overmastering hostility,'" especially with testimony of Farrell.
Lauvao asserts that there was sufficient testimony by doctors
regarding Kanui's injuries and the video was thus unnecessary.
In response to Defendants-Appellants' HRE Rule 403
arguments, the State argues that the Rehabilitation Video
addressed "a fact of consequence to the case, namely the degree
and extent of Mr. Kanui's injuries, which also spoke indirectly
to the intent of the Defendants." The State claims the video
also corroborated the medical experts' initial diagnosis and
prognosis of Kanui's injuries. The State claims that the video
"was not gruesome or revolting and did not overly prejudice"
Defendants-Appellants "any more than the medical testimony or
Exhibit 13A [(the Incident Video)]." The State also noted that
Lauvao was convicted of the lesser offense of Assault First, for
which an element of proof was "serious bodily injury[.]"21 The
State argues that the "serious bodily injury" element "meant the
State had to show 'serious, permanent disfigurement, or
protracted loss or impairment' of a bodily member or organ" --
and thus, the video was "crucial, relevant, probative evidence to
that effect."
Under HRE Rule 403, relevant evidence "may be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice, . . . or by considerations of . . . waste
of time, or needless presentation of cumulative evidence." The
21
HRS § 707-710(1)(2014), "Assault in the first degree," provides
that: "A person commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily injury to another
person." "'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 function of any bodily member or organ." HRS
§ 707-700 (2014).
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commentary to HRE Rule 403 recognizes that "[u]nfair prejudice
means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one." State v.
Gallagher, 146 Hawaiʻi 462, 481, 463 P.3d 1119, 1138 (2020)
(internal quotation marks and citations omitted). The commentary
to HRE Rule 403 recognizes the "potential for engendering juror
prejudice, hostility, or sympathy" as a factor in HRE Rule 403
determinations. State v. Riveira, 149 Hawaiʻi 427, 432, 494 P.3d
1160, 1165 (2021).22 In "weighing probative value versus
prejudicial effect, a variety of matters must be considered,
including the need for the evidence, the efficacy of alternative
proof, and the degree to which the evidence probably will rouse
the jury to overmastering hostility." State v. Edwards, 81
Hawaiʻi 293, 297-98, 916 P.2d 703, 707-78 (1996) (brackets,
ellipses and citations omitted)).23
Here, the Rehabilitation Video's probative value was
minimal in light of the evidence the State had already presented.
The medical experts had testified regarding the degree, nature,
prognosis, and permanence of Kanui's injuries. While the video
22
In Riveira, the supreme court held that a burglary victim's impact
testimony on the crime's impact on the victim and her family had "great
potential to unfairly prejudice Riveira" and was inadmissible under HRE Rule
403 because the "evidence generated sympathy for the family and impelled
hostility" to Riveira. Id. at 432; 494 P.3d at 1165. In reviewing the claim
for prosecutorial misconduct raised in that case, the court concluded that
although the misconduct was serious, it was nevertheless harmless beyond a
reasonable doubt where the misconduct "had no reasonable possibility of
contributing to [Riverira's] conviction" where the record contained
"overwhelming evidence" establishing Riveira's guilt. Id. The Riveira court
explained: "[v]ictim impact evidence concerns a crime's effect on the person
harmed by the crime or others," and "includes evidence regarding the physical,
psychological, or economical effect of a crime." Id. at 434, 494 P.3d at 1167
(citation omitted). The court cautioned that "after-effects" of a crime are
"rarely allowed" during a trial because it is "generally irrelevant to a
defendant's guilt[.]" Id. at 431, 494 P.3d at 1164 (citing HRE Rules 401,
403).
23
In Edwards, the evidence at issue were twenty-five photographs
"depicting the dead and mutilated body of the decedent" during a trial in
which the defendant was convicted of murder in the second degree, sexual
assault in the first degree, and other charges. 81 Hawai ʻi at 296, 916 P.2d
at 706 (brackets omitted). The Edwards court determined that the photographs,
which were admitted to corroborate testimony related to the defendant's
charges, were not unfairly prejudicial to the defendant under HRE Rule 403
because each photograph, while gruesome, depicted different injuries inflicted
on the decedent that were not visible in the other photographs, and
demonstrated the severity of the injuries. Id. at 299-300, 916 P.2d at 709-
10.
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reflected Kanui's condition three months after the incident and
was probative of "protracted loss or impairment" of Kanui's
bodily function for the purpose of establishing "serious bodily
injury," there was no need for this evidence where the permanence
of Kanui's injuries had been established through the medical
experts. Before the video was published to the jury, Farrell had
already testified to her observations of her father's continued
state of paralysis in October and November, when she visited him
at Craig Hospital in Colorado, a specialty hospital that
specialized in traumatic brain injuries and spinal cord injuries.
Farrell described learning how to use the "special motorized
hoist" that was depicted in the video, to lift Kanui off of a bed
to transfer him to a chair, and how to move and tilt Kanui's
wheelchair because Kanui "had no control over his extremities."
Thus, the record shows that in light of the "alternative proof"
available to the State though the testimony of the medical
experts and Farrell, the need for the Rehabilitation Video was
slight. Id. at 297, 916 P.2d at 707.
Balanced against the marginal probative value of the
Rehabilitation Video, the potential of unfair prejudice caused by
the unnecessary, cumulative admission of the video was
substantial. See HRE Rule 403. In our view, the graphic nature
of Kanui's disability depicted in the video would create an
"undue tendency to suggest decision on an improper basis" due to
the emotional and sympathetic response the video would evoke in
an average viewer. Gallagher, 146 Hawaiʻi at 481, 463 P.3d at
1138. Thus, we conclude that the Circuit Court abused its
discretion by allowing the State to admit the Rehabilitation
Video; and given the impactful nature of the video, we cannot
conclude that this error was harmless beyond a reasonable doubt.
See Feliciano, 149 Hawaiʻi at 372, 489 P.3d at 1284.
C. Sufficient evidence supports the convictions
1. Lauvao's sufficiency of evidence claim
Lauvao contends that there was not substantial evidence
to support his conviction where the State failed to prove that he
did not act in defense of Tautalatasi. Lauvao argues that the
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evidence of the Incident Video, testimony of HCPD Officer Shawn
Mirafuentes (Officer Mirafuentes),24 and Lauvao's own testimony
showed that Lauvao's actions were in response to the defense of
Tautalatasi.
Under the defense of others justification, HRS § 703-
25
305, "the trier of fact must determine whether, from the
objective point of view of a reasonable person, the defendant's
use of force was necessary for the protection of a person who
would be justified in using such force, under the circumstances
as the defendant subjectively believes them to be." State v.
Pavao, 81 Hawaiʻi 142, 145, 913 P.2d 553, 556 (App. 1996). "Once
evidence of justification has been adduced, the prosecution has
the burden of disproving it beyond a reasonable doubt." State v.
Matuu, 144 Hawaiʻi 510, 520, 445 P.3d 91, 101 (2019) (citing
State v. Culkin, 97 Hawaiʻi 206, 215, 35 P.3d 233, 242 (2001)).
A defendant's state of mind can be read from "acts, conduct and
inferences fairly drawn from all the circumstances." State v.
Birdsall, 88 Hawaiʻi 1, 8, 960 P.2d 729, 736 (1998) (citation
omitted).
Here, the record reflects substantial evidence to
support a jury's rejection of Lauvao's defense of others
justification. See HRS § 703-305; Matuu, 144 Hawaiʻi at 521-22,
445 P.3d at 102-103; Pavao, 81 Hawaiʻi at 145, 913 P.2d at 556.
Lauvao testified that during Tautalatasi's verbal argument with
Kanui, Lauvao tried to get in between them and pull Tautalatasi
24
Officer Mirafuentes, one of the responding officers, was asked on
cross-examination whether Lauvao expressed any concern for his wife; and the
officer testified that when Lauvao was detained, he said, "'Don't touch -- he
touch -- he touch my wife. He touch my wife.'"
25
HRS § 703-305(1) (2014), entitled "Use of force for the protection
of other persons," provides in pertinent part:
(1) Subject to the provisions of this section and of
section 703-310, the use of force upon or toward the person
of another is justifiable to protect a third person when:
(a) Under the circumstances as the actor believes them
to be, the person whom the actor seeks to protect would be
justified in using such protective force; and
(b) The actor believes that the actor's intervention
is necessary for the protection of the other person.
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away, but she ignored him. Lauvao testified that as he stood
over Kanui, who was lying on the ground, Tautalatasi tried to
push Lauvao out of the way to get to Kanui. As Tautalatasi hit
Kanui repeatedly, Lauvao tried to pull her off, but when she
resisted, he stood to the side and watched. Lauvao testified
that he did not believe Kanui to be a threat to Tautalatasi or to
himself. Based on Lauvao's own testimony and Lauvao's actions
depicted in the video, the jury was within its province to
conclude that Lauvao did not believe that Tautalatasi was
justified in using force to protect herself, or that Lauvao's
intervention was necessary for Tautalatasi's protection. See
Matuu, 144 Hawaiʻi at 521-22, 445 P.3d at 102-103; Pavao, 81
Hawaiʻi at 145, 913 P.2d at 556. Thus, viewing the properly
admitted evidence in the light most favorable to the State, there
was substantial evidence to support the jury's rejection of
Lauvao's defense of others justification and to convict Lauvao of
Assault First. See Bowman, 137 Hawaiʻi at 405, 375 P.3d at 184;
State v. Wallace, 80 Hawaiʻi 382, 413-15, 910 P.2d 695, 726-28
(1996).
2. Samoa's sufficiency of evidence claims
Samoa contends that there was not substantial evidence
of attempt or accomplice liability, because the "undisputed,
objective video evidence confirms that Samoa, [sic] (1) did not
attempt to cause Kanui's death, and/or (2) that he was not [sic]
accomplice to Tautalatasi and Lauvao." Samoa argues that the
Incident Video does not support a finding that Samoa attempted to
cause Kanui's death because Samoa only used force against Kanui
on two occasions when he intervened between Tautalatasi and
Kanui. According to Samoa, the first occasion was when Samoa hit
Kanui once in the face and "brought his foot up and then down
possibly hitting Kanui's face" when Kanui grabbed Tautalatasi's
hair after Tautalatasi threw her plate of food at Kanui, and the
second occasion was when Samoa hit Kanui four times in the face
after Kanui swept Tautalatasi's legs and caused her to fall.
Samoa claims that he only used measured force to stop Kanui from
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assaulting Tautalatasi and that he stopped using force after
those two incidents.
To prove that Samoa attempted to cause Kanui's death
under HRS § 705-500,26 the State was required to establish beyond
a reasonable doubt that Samoa intentionally engaged in conduct
which, under the circumstances that Samoa believed them to be,
constituted a substantial step in a course of conduct intended or
known by Samoa to cause the death of Kanui. See HRS §§ 705-500
and 707-701.5; Walton, 133 Hawaiʻi at 82, 324 P.3d at 892. For
accomplice liability under HRS § 702–22227 "a person must act
with the intent of promoting or facilitating the commission of
the crime," State v. Soares, 72 Haw. 278, 282, 815 P.2d 428, 430
(1991) (italics omitted), and "[m]ere presence at the scene of an
26
HRS § 705-500 (2014) defines "Criminal attempt" as follows,
(1) A person is guilty of an attempt to commit a crime if
the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant circumstances
were as the person believes them to be; or
(b) Intentionally 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.
(2) When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the crime
if, acting with the state of mind required to establish
liability with respect to the attendant circumstances
specified in the definition of the crime, the person
intentionally engages in conduct which is a substantial step
in a course of conduct intended or known to cause such a
result.
(3) Conduct shall not be considered a substantial step under
this section unless it is strongly corroborative of the
defendant's criminal intent.
27
HRS § 702-222 (2014), entitled "Liability for conduct of another;
complicity," provides in pertinent part that,
[a] person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating the
commission of the offense, the person:
(a) Solicits the other person to commit it;
(b) Aids or agrees or attempts to aid the other person
in planning or committing it . . . .
27
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
offense, or knowledge that an offense is being committed, without
more, does not make a person an accomplice to that offense."
State v. Acker, 133 Hawaiʻi 253, 286, 327 P.3d 931, 964 (2014)
(quoting HAWJIC 6.01). To disprove the defense of others
justification, the factfinder must apply HRS § 703-305 and assess
the subjective and objective prongs as set forth supra, in Pavao,
81 Hawaiʻi at 145, 913 P.2d at 556.
Here, viewed in the light most favorable to the State,
the record of the Incident Video reflects substantial evidence to
support the requisite intent for Attempted Murder Second,
accomplice liability, and the jury's rejection of the defense of
others justification. See Bowman, 137 Hawaiʻi at 405, 375 P.3d
at 184. The Incident Video shows that Samoa stood beside the
cart and then inserted himself into the fight once Tautalatasi
and Kanui started physically fighting in the cart. Samoa tried
to hit Kanui, but missed as Kanui tried to leave his security
cart, and then Samoa punched and kicked Kanui, who was on the
ground and was not in contact with Tautalatasi. While Kanui was
on the ground, there were multiple instances in which Samoa
punched and kicked Kanui in the head while Tautalatasi
simultaneously hit Kanui. After Kanehailua pulled Samoa away and
Tautalatasi fell, Samoa re-entered the fight to hit Kanui again.
Samoa also pulled Kanui away and struck Kanui on the head as
Tautalatasi held down Kanui's legs. The treating physicians
established that Kanui's injuries included a bone fracture near
his eye, a broken neck bone, a spinal cord injury, and paralysis;
this evidence juxtaposed with the number of punches and kicks by
Samoa on the video was substantial evidence for the jury to
reasonably infer Samoa's intent to commit Attempted Murder
Second, that Samoa acted as an accomplice, and to support the
jury's rejection of the defense of others justification. Viewing
the properly admitted evidence in the light most favorable to the
State, there was substantial evidence to support Samoa's
conviction for Attempted Murder in the Second Degree. See id.;
Wallace, 80 Hawaiʻi at 413-15, 910 P.2d at 726-28.
28
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
D. Remaining points of error
Because we vacate and remand for a new trial for the
reason set forth above, we do not reach Defendants-Appellants'
remaining contentions.
IV. CONCLUSION
For the foregoing reasons, we vacate the September 13,
2019 Judgment of Conviction and Sentence entered by the Circuit
Court of the Third Circuit, as to all Defendants-Appellants, and
remand for a new trial consistent with this Memorandum Opinion.
DATED: Honolulu, Hawaiʻi, September 9, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Andrew M. Kennedy, Presiding Judge
(Schlueter, Kwiat & Kennedy
LLLP), /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge
Lama Lauvao.
/s/ Karen T. Nakasone
Victor M. Cox, Associate Judge
(Victor M. Cox Attorney at
Law),
for Defendant-Appellant
Natisha Tautalatasi.
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant-Appellant
Wesley Samoa.
Charles E. Murray III,
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.
29