NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 08-1-0738(3)).
On the briefs:
Benjamin E. Lowenthal for Defendant-Appellant.
Peter A. Hanano Deputy Prosecuting Attorney County of Maui for Plaintiff-Appellee
Leonard, Presiding Judge, Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Graden J. Miguel (Miguel) appeals from the Amended Judgment Conviction and Sentence entered by the Circuit Court of the Second Circuit (Circuit Court) on October 20, 2 009. After a jury trial, Miguel was convicted of one count each of the following offenses: (1) unlawful imprisonment in the second degree in violation of Hawaii Revised Statutes (HRS) § 707-722 (1993); (2) felony abuse of a household or family member in violation of HRS § 709-906(8) (Supp. 2012); (3) abuse of a household or family member in violation of HRS § 709-906 (Supp. 2012); (4) unauthorized entry into motor vehicle (UEMV) in the first degree in violation of HRS § 708-836.5 (Supp. 2012); and (5) assault in the third degree in violation of HRS § 707-712 (1993) .
Miguel raises four points of error on appeal: (1) the Circuit Court erred by admitting Miguel's statement regarding injuries to his hand, made to Officer John Akana (Officer Akana) at the Hana police station, without requiring the State of Hawai'i (State) to show that Miguel's statement was voluntary; (2) the testimony of Adult Correction Officer Michael Kekaha (Kekaha) was improperly presented because it was cumulative evidence and prejudicial to Miguel; (3) the Circuit Court erroneously instructed jurors that the. term "enter" had specific intent, thereby making it impossible for them to find Miguel guilty of the lesser-included offense of UEMV in the second degree; and (4) the prosecution's appeal to the jury to send Miguel a message for his actions was an improper statement constituting blatant prosecutorial misconduct.
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 Miguel's points of error as follows:
(1) Hawaii Revised Statutes § 621-26 (1993) states that "[n]o confession shall be received in evidence unless it is first made to appear to the judge before whom the case is being tried that the confession was in fact voluntary." See also State v. Green, 51 Haw. 260, 264, 457 P.2d 505, 508 (1969) ("The trial judge has a duty to determine the admissibility of an inculpatory statement out of the presence of the jury and prior to the jury's exposure to such evidence."). This statute applies to "the extra-judicial statements of the defendant who is on trial." State v. Wakinekona, 53 Haw. 574, 576, 499 P.2d 678, 680 (1972).
Here, the Circuit Court did not conduct a voluntariness hearing regarding Miguels complaint that his right hand was sore. The State argues that the Circuit Court implicitly concluded that Miguel's statements regarding his medical condition were voluntary. However, the record does not support this argument. During a bench conference following Miguel's objection to the use of his medical statements, the main points of contention were whether Miguel was properly notified of the use of the testimony, and whether his statements were a "complaint of injury" versus a "statement." It cannot be implied from this discussion that a voluntariness determination was made, but rather it appears that the Circuit Court allowed the testimony on the basis that it was a "complaint of injury."This failure to hold a voluntariness hearing constitutes error. See, e.g., State v. White, 1 Haw.App. 221, 224, 617 P.2d 98, 101 (1980) .
While the Circuit Court erred when it allowed the contested testimony without a voluntariness hearing, such error does not, in every instance, warrant reversal. Under HRPP Rule 52(a), "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Therefore, this court "must determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002) (internal quotation marks and citation omitted).
Miguel argues that the court's failure to hold a voluntariness hearing constitutes reversible error because evidence of his hand injury corroborates Corey Law's (Law) testimony that Miguel punched him, contributing to the evidence supporting the assault and UEMV charges. However, by his own theory of the case, Miguel admits to punching Law. During closing arguments, Miguel asks the jury to find him not guilty of assaulting Law and UEMV because it was justified as self-defense after Law allegedly hit him with his truck. Miguel also requested that self-defense instructions be read to the jury. Hence, it cannot be said that Akana's testimony regarding Miguel's hand injury contributed to his conviction when Miguel himself admitted to punching Law, albeit in self-defense.
Finally, evidence regarding Miguel's hand injury was otherwise in evidence. Akana testified that he had observed Miguel's swollen hand after he had taken Miguel to the police station. The jury was also ...