NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CR. NO. 08-1-443)
Joy A. San Buenaventura, for Defendant-Appellant
Darien W.L.C. Nagata, Deputy Prosecuting Attorney for Plaintiff-Appellee
Nakamura, C.J., Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Kawa Salas (Salas) appeals from the Judgment of Conviction and Sentence entered on October 28, 2010 by the Circuit Court of the Third Circuit (circuit court)convicting him of one count of Robbery in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 708-841 (1) (b) (Supp. 2012) .
On appeal, Salas challenges his conviction by raising the following points of error: (1) the circuit court erred in denying his Motion to Suppress the Pre-Identification of Defendants (Motion to Suppress); (2) the circuit court's findings of facts (FOFs) 13, 16, 17, 18, 19, 31, 33 and conclusion of law (COL) 1 in denying the Motion to Suppress were erroneous because they identified Salas as one of the criminals before he was convicted; (3) the circuit court abused its discretion in denying Salas's Motion to Dismiss Indictment (Motion to Dismiss Indictment); (4) the circuit court plainly erred in failing to instruct the jury on the defense of abandonment and renunciation; and (5) Salas was rendered ineffective assistance of counsel.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Salas's points of error as follows:
(1) In his first point of error, Salas contends that the circuit court erred in denying his Motion to Suppressbecause the court's findings of fact (FOFs) were "insufficient to satisfy the [t]otality of the [c]ircumstances factors required by Neil v. Biggers, 409 U.[S]. 188, 197, [ ] (1972) because [the FOFs] did not address the initial on-scene identification by the [complaining witnesses], instead it ambiguously supported its denial by referring to the [complaining witnesses'] subsequent on-scene identification and more subsequent photo line-up identifications as being reliable and non-suggestive."
Salas appears to argue that, because there was testimony as to two possible points at which he was identified at the scene, one when he was handcuffed and sitting next to co-defendant John Iopa (Iopa) and another when Salas was walked out of the area, the circuit court erred by not specifically addressing each on-scene identification separately. Salas does not contest, however, the circuit court's findings that Salas was identified by the complaining witnesses independent of any procedure orchestrated by the police. This point of error thus lacks merit.
Questions regarding the suggestiveness and reliability of a pre-trial identification are questions of law reviewed de novo on appeal. State v. Okumura, 78 Hawai'i 383, 391, 894 P.2d 80, 88 (1995), abrogated on other grounds by State v. Cabagbag, 127 Hawai'i 302, 277 P.3d 1027 (2012) .
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. Araki, 82 Hawai'i 474, 484, 923 P.2d 891, 901 (1996) (quoting Okumura, 78 Hawai'i at 391, 894 P.2d at 88). However,
answering these questions involves determinations of fact by the court. Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the "clearly erroneous" standard. 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.
Okumura, 78 Hawai'i at 392, 894 P.2d at 89 (citations and internal quotation marks omitted).
After multiple hearings on the Motion to Suppress, the circuit court made detailed FOFs regarding the incident at the campsite, the complaining witnesses' interaction with police after the incident, and the circumstances when three of the complaining witnesses -- Scott Desa (Desa), Lucas Mead (L. Mead), and Benjamin Mead (B. Mead) -- returned to the campsite and identified Iopa and Salas as having been involved in earlier confronting and accosting the complaining witnesses. The circuit court's findings expressly state that Desa, L. Mead, and B. Mead went back to the campsite to pack up and collect their belongings, and that their focus was on making sure that they had all of their camping gear. The circuit court further found that, upon hearing Iopa speaking and recognizing Iopa and Salas, Desa, L. Mead, and B. Mead approached police "of their own initiative" and identified Iopa and Salas as being the individuals who had confronted the complaining witnesses earlier. Moreover, in FOF 38, the circuit court found:
38. The on scene identification of Defendant Salas and Defendant Iopa was made independent of any officiated identification procedure. Desa, L. Mead and B. Mead returned to the scene to collect and catalogue their possessions and not for the purposes of taking part in a police orchestrated identification procedure. There was no coercion on the part of the police, or any effort to influence or to direct the identification of the Defendants by the victims. Desa, L. Mead and B. Mead each made individual identifications based on their respective perceptions and independent recollection of events. There is no evidence of collusions among the victims to identify Defendant Iopa and Defendant Salas as participants in the confrontation. There was no discussion between victims to confirm and/or corroborate the identification.
Salas does not challenge FOF 38 or any of the circuit court's FOFs indicating that the complaining witnesses initiated the identification of Salas. Unchallenged findings of fact are binding on this court. State v. ...