APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 08-1-1341)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., and Reifurth and Ginoza, JJ.)
Defendant-Appellant Blue Lealao, also known as Boy Blue Lealao (Lealao), appeals from the April 20, 2010, Amended Judgment of Conviction and Sentence (Amended Judgment) that was entered by the Circuit Court of the First Circuit (Circuit Court).*fn1 Lealao was charged by indictment with first degree assault. A jury found Lealao guilty of the lesser included offense of second degree assault, in violation of Hawaii Revised Statutes (HRS) § 707-711 (Supp. 2008).*fn2 The Circuit Court sentenced Lealao to five years of incarceration to be served concurrently with any other sentence Lealao may be serving.
On appeal, Lealao argues that: (1) the Circuit Court erred in admitting Lealao's statement that Lealao "had made a big mistake," which he made to the niece of the complaining witness (CW); (2) the Circuit Court erred in denying Lealao's request for a jury instruction on mutual affray; (3) there was insufficient evidence to support the jury's verdict; and (4) Lealao's conviction should be vacated because his trial counsel provided ineffective assistance. We affirm the Circuit Court's Amended Judgment.
Chelcey Lealao (Chelcey) and her husband Bob Lealao, Jr. (Bob) held a birthday party for their infant son at the ' huimanu Clubhouse in Kahalu'u. The CW and Lealao were both guests at the party, but did not know each other. The CW is Chelcey's uncle and Lealao is Bob's uncle. At the time of trial, which was about 18 months after the charged incident, the CW was 45 years old, five feet five inches tall, and weighed 165 pounds, and Lealao was 47 years old, about 6 feet tall, and weighed about 310 pounds. Both the CW and Lealao had been drinking beer at the party.
The CW and Virgilo Tamayo (Tamayo) were friends. The CW went to the parking lot when he heard that his son and Tamayo's son were involved in a confrontation. At the parking lot, the CW got into a verbal argument with Tamayo, which attracted a crowd. The CW was "agitated" and was "bouncing up and down[.]"
Bob heard the CW and Tamayo arguing and went to break up the argument. Bob got in between the CW and Tamayo to split them apart. Bob testified that the CW pushed him, which caused Bob to take a few steps back, and the CW told Bob to "get off me." Bob stated that he did "not really" feel threatened when the CW pushed him, but that he was "pretty sure" it would have looked like he was being threatened to someone watching. The CW and Tamayo continued arguing for about another minute, and then Lealao hit the CW. Witnesses did not see Lealao say anything to the CW, or see the CW turn towards Lealao, before Lealao struck the CW in the face. The CW did not see who hit him. The CW fell to the ground, lost consciousness for about twenty to thirty minutes, and was bleeding from the back of the head. Tamayo called 9-1-1, and when the police arrived, the CW was still unconscious.
The CW suffered a fractured jaw, a laceration to the back of his head of just under two inches that required stitches, and a serious concussion. As a result of the jaw fracture, CW's jaw was wired shut for nineteen days, and his jaw remained restricted by elastic bands for another six weeks. The CW was not able to chew solid foods for about eight weeks. Christopher Johnson, M.D., an emergency room doctor who treated the CW, opined that the CW's injuries created a serious risk of death and that the CW's jaw fracture caused a protracted loss or impairment of a bodily member or organ, in that it impaired his ability to eat.
Lealao testified that he heard yelling in the parking lot and saw his nephew Bob in between the CW and Tamayo, two people Lealao did not know. According to Lealao, he went to the parking lot because he was concerned for Bob's safety. When Lealao was walking to the parking lot, he was hit on the right side, which caused his nose to bleed. Lealao did not see who hit him. Lealao then saw the CW push Bob. Bob stepped back, and the CW was jumping up and down. Lealao swung one time at the CW. Lealao swung because he was concerned that the CW would "go after" Bob. After Lealao struck the CW, Bob pushed and held Lealao back, and the police came and arrested Lealao. Dr. Johnson, who treated both the CW and Lealao, testified that Lealao suffered a nose injury, consisting of "swelling and tenderness to the region of the nasal ridge, the top of the nose, that would ...