NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER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).
Vaughan S. Winborne Jr. for Defendant-Appellant.
Darien W.L.C. Nagata Deputy Prosecuting Attorney County of Hawai'i for Plaintiff-Appellee.
Nakamura, C.J., Foley and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant John K. Iopa (Iopa) 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 First Degree in violation of Hawaii Revised Statutes (HRS) § 708-840 (1) (b) (Supp. 2012),  and/or § 702-221(2)(c) (1993 Repl.) and/or § 702-222(1) (1993 Repl.).
On appeal, Iopa challenges his conviction by raising the following points of error: (1) he was denied his due process rights because the pre-trial identifications of him were tainted by suggestiveness; (2) he was denied his due process rights because the State failed to present clearly exculpatory evidence to the grand jury; (3) he was denied his right to due process and equal protection of the laws because the circuit court failed to enumerate each element of the substantive jury instruction as to conduct, result of conduct, and attendant circumstances; and (4) the circuit court erred in denying his motion for judgment of acquittal.
We initially note that the opening brief fails to comply with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28. First, HRAP Rule 28(b)(3) requires "a copy of the judgment, decree, findings of fact and conclusions of law, order, opinion or decision relevant to any point on appeal" to be appended to the appellant's opening brief, unless otherwise ordered by the court. Iopa fails to attach to his opening brief the judgment or any orders relevant to this appeal. Second, in violation of HRAP Rule 28(b)(4), Iopa's asserted points of error fail to state where in the record alleged errors occurred and where in the record alleged errors were objected to or the manner in which the alleged errors were brought to the attention of the circuit court. Third, one of Iopa's points of error challenges jury instructions but, in violation of HRAP Rule 28(b) (4) (B), Iopa fails to quote or identify the challenged jury instruction (s) or to indicate if any objection was made by Iopa at trial. Because of this court's preference to address cases on the merits if possible, we will consider Iopa's points of error to the extent they can be discerned. However, Iopa's counsel, Vaughan S. Winborne Jr., is put on notice and cautioned that future noncompliance with HRAP Rule 28 may result in sanctions.
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 Iopa's points of error as follows:
(1) Iopa sought to preclude admission of evidence about the pre-trial identification of him by joining in co-defendant Kawa Salas's "Motion to Suppress the Pre-Identification of Defendants; Motion to Dismiss Indictment." The circuit court did not err in denying the motion to suppress the pre-trial identification of Iopa.
Following multiple hearings on the motion to suppress, the trial court denied the motion and issued findings of fact (FOF), conclusions of law (COL) and an order. The circuit court's detailed FOFs set forth specifics regarding the incident at the complaining witnesses' (CWs) campsite, the CWs' interaction with police after the incident and away from the campsite, and the circumstances when three of the CWs -- Scott Desa (Desa), Lucas Mead (L. Mead), and Benjamin Mead (B. Mead) --returned to the campsite, at which time Desa, L. Mead, and B. Mead identified Iopa and Salas as having been involved in earlier confronting and accosting the CWs. 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 CWs 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 .
The circuit court thereafter made the following relevant COLs:
1. The on-scene identification of Defendant Iopa and Defendant Salas on September 1, 2008 was made spontaneously by Desa, B. Mead, and L. Mead, and not as a result of any officiated identification. There was no "show up".
2. Even if the on scene identification was a "show up", it was not impermissibly suggestive. State v. Okumura, 78 Haw. 383, 391, 894 P.2d 80, 88 (1995).
3. Even if the on-scene identification was a "show up" and if it was impermissibly suggestive, it was nonetheless reliable under the totality of the circumstances. State v. Masaniai, 63 Haw. 354, 365 and ...