NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 10-1-0745).
Kevin A. Souza (Law Offices of Kevin A. Souza LLLC) for Defendant-Appellant.
Brandon H. Ito Deputy Prosecuting Attorney City & County of Honolulu for Plaintiff-Appellee.
Nakamura, Chief Judge, and Foley and Ginoza, JJ.
Defendant-Appellant Jermaine Madela (Defendant) was charged by indictment with two counts of first-degree terroristic threatening, in violation of Hawaii Revised Statutes (HRS) § 707-716(1)(e) (Supp. 2012). The alleged victim in Count I was the Defendant's brother, Jasfer Madela (Jasfer), and the alleged victim in Count II was Defendant's father, Felix Madela (Felix). After a jury trial, Defendant was found guilty of Count I and acquitted of Count II. He was sentenced by the Circuit Court of the First Circuit (Circuit Court) to imprisonment for five years. Defendant appeals from the "Judgment of Conviction and Sentence" (Judgment) entered by the Circuit Court on January 24, 2012.
On appeal, Defendant argues: (1) there was insufficient evidence to disprove his claim of self-defense; and (2) the prosecutor's comments during closing argument, to which he did not object, constituted prosecutorial misconduct that warrants a new trial. We affirm the Circuit Court's Judgment.
Plaintiff-Appellee State of Hawai'i (State) presented the following evidence at trial. Defendant resided together with his father, Felix, who was seventy-six years old, and Defendant's brother, Jasfer. Jasfer testified that on the day in question, he heard Defendant swearing and yelling at Felix, saying "I like money. Fuck you." Apparently, Felix had purchased plane tickets for he and Defendant to travel to the Philippines that day, but at the last minute, Defendant refused to go, resulting in the trip being cancelled and "wasting the family's money." Defendant was yelling at Felix because Defendant wanted Felix to give him the money from the cancelled trip so that Defendant could travel to the mainland.
Jasfer intervened and asked Defendant, "Why you yelling at dad like that for?" Jasfer further told Defendant to stop being disrespectful to their father. Defendant responded by telling Jasfer, "fuck you" and to "shut up." Defendant "went rush [Jasfer], " grabbed Jasfer with both hands by the throat, and pushed Jasfer backwards, causing him to fall and cut his leg on a table. In response, Jasfer punched Defendant twice in his left arm and shoulder.
Defendant ran into the house and grabbed two knives and a machete. Defendant swung the machete at Jasfer from a few feet away, and Defendant threatened to kill both Jasfer and Felix. Meanwhile, Felix grabbed Defendant around the stomach from behind in an attempt to restrain Felix. While this was occurring, Defendant threatened to "chop" off the heads of his brother and father. Felix told Jasfer to go into the house and yelled for the landlord, Edison Amodo (Amodo), to call the police.
Amodo testified that he responded to Felix's calls for help. Amodo saw Defendant holding a machete and pointing it at Felix. Amodo heard Defendant say to Felix, "I will kill you if you don't give me the money." Amodo left to get his cell phone and call the police. When he returned, Amodo saw Felix on the ground between his two sons. Jasfer was holding a hammer, with one hand on each end, in order to block the machete that Defendant was holding. Defendant threatened to chop off the heads of both his father and brother, and it appeared to Amodo that Jasfer was attempting to defend his father.
Defendant testified in his own defense at trial. According to Defendant, he was in the outside kitchen using a small knife to cut vegetables and spam for saimin. Defendant and his father were having a loud discussion about not getting a refund for airline tickets for a trip to the Philippines. The trip was cancelled when two hours before the scheduled departure, Defendant told Felix that Defendant refused to go. Defendant testified that Jasfer came out of the house and confronted Defendant in the mistaken belief that Defendant was asking their father for money. Defendant swore at Jasfer and told him to stay out of it. Jasfer wanted to fight and "came to throw a punch" at Defendant. Defendant pushed Jasfer. Jasfer then picked up a hammer and Defendant grabbed a knife to protect himself. Jasfer hit Defendant "once on the left shoulder" with the hammer. Felix stepped between the two brothers and told Jasfer to go into the house and Defendant to put the knife down. At some point, Felix took the knife away from Defendant and Jasfer put the hammer down. However, the brothers went at it again, with Jasfer punching Defendant in the body and Defendant attempting to hit Jasfer before Felix was able to break them up.
Defendant asserted that Amodo was never present at the scene to observe the altercation. Defendant also denied threatening either his father or brother with a knife, and Defendant testified that he only picked up the knife to defend himself after Jasfer picked up the hammer.
Defendant argues that his conviction must be reversed because there was insufficient evidence to disprove his ...