NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 09-1-0498)
Richard S. Kawana for Defendant-Appellant.
Presiding Judge Stephen K. Tsushima Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.
Foley, Presiding J., Reifurth and Ginoza, JJ.
Defendant-Appellant John Walton (Walton) appeals from an August 10, 2011 Judgment entered in the Circuit Court of the First Circuit (circuit court), convicting Walton of Attempted Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS) §§ 705-500 and 707-701.5 (1993).
On appeal, Walton contends the circuit court erroneously (1) denied Walton's motion for severance; (2) denied Walton's motion to suppress evidence and identification testimony; (3) admitted a recorded conversation into evidence; (4) admitted prejudicial photographs; (5) gave erroneous jury instructions. Walton also contends the evidence was insufficient to support his conviction.
On April 8, 2009, Plaintiff-Appellee State of Hawai'i (State) indicted Walton for Attempted Murder in the Second Degree and Robbery in the First Degree. On June 7, 2010, the State moved to consolidate Walton's trial with the trial of Courage Lee Elkshoulder (Elkshoulder), stating the cases were "based on the same conduct or series of acts connected together or constituting parts of a single scheme or plan." The circuit court granted the State's motion over the defendants' objections. The circuit court also denied Walton's pretrial motions to sever the defendants, and his motion for severance during trial.
At trial, the victim testified that on November 15, 2008, he was driving his taxi cab when two males approached and stated they needed a cab. The victim agreed to take the two males, who then entered the cab and directed the victim to a home in Manoa.
The victim stated that when he stopped his cab and waited for payment, he saw one of the passenger's arms grabbing him from behind and cutting him on the neck. Both passengers then pinned the victim down, and the victim stated he saw another hand stab him a few more times, although he did not know which passenger held the knife. The victim lost all of the money in his pocket during the altercation. The State also entered into evidence photos from a video surveillance camera near the cab, depicting two males. The victim identified the two males in the photos as the males who had attacked him.
The co-defendant, Elkshoulder, testified at trial. He admitted to riding in the cab with Walton but claimed that Walton alone attacked the victim, while Elkshoulder immediately fled. Elkshoulder also testified that on November 17, 2009, he received a call from Walton. He asked Walton to call back and then called his attorney. After speaking with his attorney, Elkshoulder obtained a cassette recorder. When Walton called back later that evening, Elkshoulder stated he placed his phone on speaker mode and used the recorder to record their conversation. During the conversation, Walton allegedly made self-incriminating remarks, indicating he stabbed the victim two to three times. Elkshoulder then submitted the cassette tape to his attorney. Over objections from Walton and the State, the circuit court received into evidence an edited copy of the cassette tape placed onto a CD. Elkshoulder played the CD in open court, and the circuit court allowed the jury access to the CD during its deliberations.
Elkshoulder's defense rested after he testified, and Walton's defense rested without presenting any further evidence or testimony. The jury found both Walton and Elkshoulder guilty as charged on all counts. The circuit court entered its judgment on August 10, 2011, and Walton filed a timely notice of appeal on September 9, 2011.
II. STANDARDS OF REVIEW
A. Motion For Severance
Appellate courts review the issue of whether the trial court erred in not severing a trial under the abuse of discretion standard. State v. Timas, 82 Hawai'i 499, 512, 923 P.2d 916, 929 (App. 1996) . Furthermore, upon review of a motion to sever, the 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." Id. (ellipsis and brackets omitted) (quoting State v. Gaspar, 8 Haw.App. 317, 327, 801 P.2d 30, 35 (1990)).
B. Motion To Suppress Evidence
A trial court's ruling on a motion to suppress evidence is reviewed de novo to determine whether the ruling was "right" or "wrong." State v. Edwards, 96 Hawai'i 224, 231, 30 P.3d 238, 245 (2001) (citing State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000)) . The proponent of the motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and ...