This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CRIMINAL NO. 11-1-0926).
On the briefs: Jeffrey A. Hawk, (Hawk Sing & Ignacio), for Defendant-Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
By: Foley, Presiding Judge, Fujise and Leonard, JJ.
Defendant-Appellant Richard P. Silva, III (Silva) appeals from a March 5, 2013 Judgment of Conviction and Sentence, entered by the Circuit Court of the First Circuit (Circuit Court), for the following offenses: Reckless Endangering in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707-714(1)(a) (Supp. 2013); Assault in the Second Degree in violation of HRS § 707-711(1) (d) (Supp. 2013); and Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 (2011).
A. Events Leading to the Charges Against Silva
In 1991 or 1992, Silva was involved in a fight with David Kawika Kahanu (Kahanu), whom Silva knew from high school. Kahanu punched Silva in the mouth, and Silva was hospitalized and received three or four stitches. The two men did not speak for over ten years.
One night in 2006 or 2008, the two men saw each other at The Shack in Mililani Shopping Center (The Shack). Kahanu testified that Silva tried to start a fight, but Kahanu declined. Silva testified that Kahanu approached him and said that The Shack was Kahanu's hangout, and Silva was not allowed to go there. Silva left, and the two men did not fight.
On the night of July 3, 2011, Kahanu helped sponsor a fundraiser event at The Shack. Chadwick " Chad" Ceno (Ceno), Travis William Joaquin (Joaquin), and William " Bill" Peters (Peters) were among the attendees. The event ended at around 11 p.m., but many of the attendees remained at The Shack into the early hours of July 4, 2011. Silva was also at The Shack with two friends, but was not attending the event.
1. Silva's testimony
Silva's version of the events differs significantly from that of the State's witnesses. Silva testified that while he was urinating in the bathroom in The Shack, Ceno and Joaquin approached and harassed him, threatening to put him in the hospital and to burn down his family's house in Waipio. When Silva left The Shack, Kahanu and a group of approximately twenty men (including Ceno, Joaquin, and Peters) confronted him. When Silva tried to move away from Kahanu, Joaquin blocked his way, and the group of men " threatened and harassed" him. Peters, who was " yelling," " shouting," and " sticking out his chest," told Kahanu to " break it up" and let Silva go because they were going to meet Silva " at his house in Waipio."
Silva was concerned for his family's safety, because he thought some of the men knew the location of his childhood home in Waipio Valley. He returned to his car and looked for his phone, but could not find it. A thirteen-inch silver hatchet with a black handle, which he used for work, was on the floor of his car. He set it on the passenger seat with the handle on the center console because he thought he might need to use it for protection.
Silva drove to the Jack-in-the-Box across the street from The Shack to look for Kahanu. He testified that he did so because Kahanu and his friends had made threats to go to Silva's family's house, and that he wanted to speak to Kahanu to end the incident. He pulled into the parking lot, rolled down his window, and told Kahanu they needed to talk. Kahanu said, " we go down . . . to the park. I'll meet you there." Silva drove to Kipapa Park (Park) and waited for Kahanu.
Silva waited near the Park for a few minutes, and then saw several cars driving near the Park on Kipapa Drive toward Waipio Valley. Concerned, Silva began to drive toward Waipio Valley and noticed a white truck and two other cars driving close behind him. Silva drove past his family's house in Waipio to see if everything was alright, and the truck apparently stopped following him. He then drove back to the Jack-in-the-Box parking lot. Silva told Kahanu to meet him at the Park, and then drove back toward Kipapa Park.
As Silva turned into the street next to the Park, he again noticed a white truck following him. Ceno was driving the truck, and Peters was riding in the passenger seat. Near Kipapa Park, Ceno pulled his truck in front of Silva's car from the left side and parked diagonally, causing Silva to stop. Joaquin, driving a red Dodge Charger, pulled up and parked on the left side of Silva's car.
Peters, who was not wearing a shirt, jumped out of Ceno's truck before it completely stopped and approached the passenger window of Silva's car. Peters yelled at Silva and attempted to open the locked passenger door, inserting his right hand into the partially rolled-down window. Silva picked up the hatchet with his right hand and waved it at Peters, telling Peters to get away from the car.
Ceno and Joaquin approached the driver's window of Silva's car. Ceno was holding a small silver handgun, which he pointed inside the open window at Silva. Silva grabbed Ceno's hand and twisted the gun away from his face, and then heard the gun fire. Ceno stepped back a few feet, dropped the gun, held his stomach with both hands, and fell to the ground. Ceno suffered a through-and-through gunshot wound to his abdomen.
Silva exited his car and grabbed the gun from the road as Ceno tried to grab it. Silva fired the gun randomly into the dark, attempting to scare the men away. He threw the gun on the ground near Ceno's truck and drove away.
2. The State's Witnesses' Testimony
Both Ceno and Joaquin testified that they did not see or speak to Silva inside The Shack. Kahanu testified that after he saw Silva exit The Shack, he went over and " tapped" Silva and said in a " firm and soft" voice that he was not happy about Silva " hopping around, calling [him] out" the last time they met. Shortly after Silva and Kahanu began talking, several police cars arrived and the crowd dispersed.
Two to three minutes later, Silva drove up to where Kahanu was standing and said, " [f]ollow me to the park right now." Kahanu got into his car and began to drive to the Park with his fiancé e in the passenger seat, but then realized that he did not want her to be involved and pulled over on the other side of the street.
Around four minutes later, Silva returned, stopped his car in the middle of the road, shouted, " Kawika, follow me, you faggot," and then drove off. Kahanu's friends told him not to follow Silva, and Kahanu drove home with his fiancé e. In Kahanu's statement to the police, he stated that his " buddies" told him to " go home, take care your family. We take care him."
Ceno, Peters, and Joaquin testified that they drove to the Park intending to tell Silva to go home because the incident was over. Ceno denied possessing a gun or any other weapon when he approached Silva's car. Peters testified that when he was standing near Silva's passenger side door, there was a gun on top of the console, and Silva had his right hand directly over the gun.
When Ceno approached Silva's driver's side window, Silva turned to Ceno, pointed the gun at Ceno, and fired a shot. Peters shouted, " [h]e's got a gun, he's got a gun." Joaquin turned to run across the street, heard more shots, and felt a hot feeling in his lower back. Joaquin fell to the pavement and crawled towards a wall and some trees. He saw two flashes and felt a burning sensation in his right arm and in the right side of his stomach area. Joaquin suffered gunshot wounds to his right side mid-back area, his right stomach area, and his right elbow.
Silva walked to where Ceno was lying on the ground, stood over him, and pulled the trigger of the gun three times. The first time, a bullet discharged, but did not hit Ceno. The gun did not fire the second and third times. Silva then ran to his car and drove towards Waipio Valley.
Between 3:00 and 3:45 a.m. on the morning of July 4, 2011, Silva turned himself in to police.
On the evening of July 4, 2011, a passerby found a five-chamber 38 Special Smith & Wesson Model 60 revolver matching the description of the gun used in the shooting south of Mililani on the northbound shoulder of Kamehameha Highway. A bullet removed from Joaquin's body had markings that were similar to those on test bullets fired from this ...