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State v. Hilario

Intermediate Court of Appeals of Hawaii

April 19, 2017

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
VICENTE KOTEKAPIKA HILARIO, Defendant-Appellant

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CR. NO. 11-1-0023)

          FUJISE, PRESIDING JUDGE, LEONARD AND GINOZA, JJ.

          OPINION

          FUJISE, J.

         I.

         Defendant-Appellant Vicente Kotekapika Hilario (Hilario) appeals from the July 25, 2013 Judgment of Conviction and Sentence for Murder in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-701(1)(c) (Supp. 2016) and Bribery of a Witness in violation of HRS § 710-1070(1} (2014) entered by the Circuit Court of the Fifth Circuit (Circuit Court)[1].

         We consider two points of error raised by Hilario.[2]Hilario argues that the Circuit Court (1) erred in denying his Motion for New Trial, based on his claim the Circuit Court denied his "right to meaningfully participate in trial based [on] the trial court's process of conducting extensive individual juror questioning at the bench and the denial or impairment of his right [to] peremptory challenges" and (2) deprived him of a fair trial by admitting evidence related to the so-called "Safeway Robbery."

         II.

         A.

         This case stems from the December 17, 2010 shooting of Aureo Moore (Moore) near the Anahola Beach Park on Kauai. Moore was the complaining witness in a robbery that took place on August 21, 2010, in the parking lot of the Safeway supermarket in Kapa'a (Safeway Robbery). Kyle Akau (Akau), Hilario's friend, was accused of the Safeway Robbery and it was said that Hilario was the driver.[3] On August 24, 2010, three days after the Safeway Robbery, police arrested Akau and Hilario[4] for the Safeway Robbery. Initially, Hilario was driving and Akau was his passenger. However, Akau had tried to flee on foot and after a short search of the area, police found Akau and recovered a backpack in Akau's vicinity in which a camping permit, timecards, a paycheck stub, and Aston Hotel receipts bearing Hilario's name were found. The backpack also contained a loaded Jennings .22 caliber pistol and additional ammunition, a loaded Colt single-action Army .45 caliber pistol, 12 5 Oxycodone pills, and a dealership key tag for a gray 2006 Nissan Altima.

         Angienora "Pua" Crawford (Crawford) testified that she was addicted to OxyContin and oxycodone pills and that she knew Moore as a user and a supplier and Hilario as one of her suppliers. On August 21, 2010, between the Kapa'a Safeway and Foodland supermarkets, she saw a male[5] yelling at Moore, "Where is it at? Where is it at?" and understood that Moore was being robbed. Because she was angry with Moore at that time, saw no weapon, and did not think Moore would be hurt, she walked on by. However, when she got to the end of the walkway, she heard a gunshot and realized the seriousness of the situation. Shortly thereafter, the police arrived and Crawford gave a statement to the police.

         Crawford also testified that in September through October 2010, Hilario asked Crawford several times, in exchange for pills or money, to testify that the person she saw robbing Moore was not actually the robber.[6] From her discussions with Hilario, Crawford understood that Hilario wanted to help out this guy because "was his family." Hilario told Crawford that he was not at the robbery. Hilario also expressed concern that although the charges against him had been dismissed, he was concerned that they could be brought again. However, she understood that Hilario was more concerned about the person who was facing trial for the Safeway Robbery. Ultimately, Crawford was never asked to testify about the Safeway Robbery, and she never gave Hilario an answer to his requests.

         Crawford testified that, at some point, in October or November, Hilario's requests changed from testifying to arranging a meeting between himself and Moore.[7] Hilario made ten or more of these requests. Crawford testified that she thought the requests odd because Hilario could set up a meeting with Moore himself. However, Hilario did not want Moore to know about setting up a meeting. Crawford did not refuse but put Hilario off.

         On the day before the shooting, Hilario called Crawford, asking her if she wanted more pills, and whether she could bring Moore to "the ABC Store." Crawford told Hilario, "no, " they had pills.

         The following day, December 17, 2010, Moore called Crawford to ask if she knew anyone who had pills. Knowing that Hilario had pills, she called Hilario, thinking that she could be the "middle man" in the transaction and be able to benefit as a result. At the time, Crawford knew that Moore did not want to meet with Hilario and that Hilario wanted to see Moore, "but not in a nice way." She thought that there would be a talk and perhaps a fight. Ultimately, Crawford agreed to bring Moore to the lookout at Anahola because it was a little more out in the open, there was a lifeguard station there, and it was frequented by campers.

         Crawford then called Moore to tell him she was coming; she did not tell Moore she was driving him to meet Hilario. Crawford picked Moore up and dropped him off at the Anahola lookout, where Moore gave her $100 for six pills, and she drove off to meet Hilario nearby.

         When Crawford met Hilario, Hilario was wearing a white t-shirt with a dark design or picture on the front and black cargo shorts and was driving a dark-colored Nissan. Hilario gave Crawford five oxycodone pills and refused her money, saying, "No, that's for you." Hilario then told her, "When you leave, just go out the other direction, and if anybody asks, you never saw me."[8]

         Crawford followed his instructions and saw that Hilario drove in the opposite direction, towards where she left Moore. While Crawford was driving around Anahola town, she heard sirens and saw emergency vehicles racing by. Later that day, Crawford heard through word-of-mouth that there had been a shooting in Anahola. She did not go to the police until two days later, after she heard the police were looking for her, and did not tell the police about her involvement with a drug transaction or that Hilario had given her pills on that day.

         Manaku testified under an immunity agreement that he was a childhood friend of Hilario and was a close friend of both Hilario and Joseph Kainoa Hansen-Loo (Kainoa). Manaku also testified that he helped Hilario collect drug money owed to Hilario. Kyler is Kainoa1s younger brother.

         Manaku testified that, on December 17, 2010, Hilario, Kyler and Manaku planned to go fishing. Manaku and Kyler were clad only in surf shorts and Hilario was wearing a white t-shirt, surf shorts, black hoodie and slippers.[9] In December 2010, Manaku was about six feet one-inch tall and weighed 3 00 pounds. On the way to Anahola Beach Park, Hilario stopped at a "pull off" with a big pine tree and told Manaku and Kyler to get out of the car and go over the guardrail. As they did so, Hilario drove off.

         While sitting on the other side of the guardrail, Manaku heard a loud vehicle drive up and saw a Caucasian male get out of the vehicle and sit near the pine tree. Shortly thereafter, Hilario walked up from behind them, [10] now wearing a beanie/ski mask that he then pulled down over his face, stepped over the guardrail with Manaku and Kyler following, and fired two shots in the direction of the Caucasian. The Caucasian yelled, got up and took two steps before two more shots were fired and the man fell to the ground. Hilario walked up to the man and fired two more shots at the back of the man's head. Manaku, Kyler, and Hilario all ran away from the scene.

         At one point while they were running, Manaku lost sight of Hilario for ten to twenty seconds, after which Hilario reappeared without the hoodie. Manaku testified that he saw Hilario wrapping up something in what looked like the beanie and throwing it in the water in the "three rocks" area of the beach. A Raven Arms Model P-25 .25 caliber semi-automatic handgun was recovered from the water in this area on December 20, 2010.

         Kyler1s testimony was broadly consistent with Manaku1s, but differed as to the critical facts. He testified that he was six feet or six feet one-inch tall and at trial weighed about 180 pounds. He also agreed that, at the time of the offense, he was taller than Manaku and Hilario. Kyler testified that on December 17, 2010, it was Manaku that wore a black jacket and a beanie, and after Hilario dropped them off at the pull-off and another vehicle left a male, it was Manaku that pulled the beanie over his face, shot the male six times, and threw the gun and beanie into the ocean as they ran away from the scene. According to Kyler, they met up with Hilario close to their fishing spot, when Manaku boasted to Hilario that he "aced that guy" and Hilario looked surprised.

         Cheryl Corneal (Corneal) testified that she was setting up her pastele stand on Manai Road when two gunshots from up the road drew her attention and she saw two people running in her direction a few feet before the ironwood tree. The men stopped, one leaned over and shot towards the ground twice, and she could see a person's leg move up, making her realize a person had been shot. The shooter was of medium build, wearing a green or blue plaid shirt with a hoodie, a baseball cap or a long pony tail, and long, dark shorts. The other person was huskier, wearing only dark long shorts. Although she could not see the shooter's face, Corneal knew Hilario and the shooter matched Hilario's general height and weight.

         On December 17, 2010, Rusty Kaimipono Brewer Ah Loo (Ah Loo) was standing at the bottom of the hill on Anahola Road adjusting his iPod when he saw two men come out of the bushes near the ironwood tree. Ah Loo testified that he saw one person come out from behind the tree and shoot the other as the latter was running and fell forward, then when the person was on the ground, more shots were fired aimed at the back and head area. Ah Loo heard a total of five shots. Ah Loo described the shooter as "skinny and tall" and wearing a ski mask, a long-sleeved shirt, long pants, and shoes.

         Kaimakana Wedemeyer (Wedemeyer) was on duty as a lifeguard on Anahola Beach on December 17, 2010. He testified that he heard five shots, began to scan with his binoculars and saw that the "pastele lady" looked "really alarmed." As he continued to scan up the road, he saw two individuals running up the road; one was a shirtless male, the other looked like a male wearing a green and black hoodie which covered his head. The shirtless individual was facing the other and had his hands raised, as if to say, "what are you doing?" The person with the hoodie had his hands down, as if they were in his pockets. It appeared as if the two were arguing as they ran. Wedemeyer drove his truck up Manai Road and could still see the two individuals running further up the road; when he reached the ironwood tree he saw a male face down and realized the male was a gunshot victim.

         On December 17, 2010, Brehden Kamibayashi and Austin Kekoa Alfiler were driving away from the "Crack 14" area of Anahola beach, when they saw three men running; the three men slowed to a walk as they drove by. They next encountered police, who told them the police were looking for people who were running; they told the police what they had seen. When they subsequently were shown a photo lineup by the police, they identified the first of the three as Kyler and the last of the three as Manaku, but could not identify the second person, who was wearing a dark hoodie and looked away from them.

         Hilario maintained that as he was driven past where Moore was supposed to be and where he dropped off Manaku and Kyler, he saw "somebody laying there, " a couple of trucks parked, and people standing around. He told his driver to continue driving and asked to be dropped off at the dead end of a road in a nearby housing development. From that point, he walked on a path towards the fishing spot at which he expected Manaku and Kyler to be waiting, but met them as they jogged down to meet him. Hilario testified that Manaku admitted to shooting Moore multiple times.

         B.

         Prior to the trial, the Circuit Court ruled that it would admit an audio recording of Moore's preliminary hearing testimony (Moore's Testimony) regarding the Safeway Robbery. Moore's Testimony was determined to be relevant to the instant case because Moore was murdered ten days before trial for the Safeway Robbery was scheduled to begin, and Hilario was aware of the content of Moore's Testimony because Hilario was present at the preliminary hearing.

         The audio tape of Moore's Testimony was played for the jury. The jury was instructed that information in Moore's Testimony could not be used to conclude that Hilario was of bad character and therefore more likely to have committed the charged crimes. Moore's Testimony included statements that he saw Hilario drive to the Safeway parking lot, where Akau exited Hilario's vehicle. Several days after Moore's Testimony was played for the jury, the Circuit Court ruled that it would allow evidence of the contents of the backpack found with Akau when he was arrested on August 24, 2010, three days after the August 21, 2010 Safeway Robbery. However, the Circuit Court decided that only evidence connecting Hilario to the Safeway Robbery, and thereby relevant to motive, opportunity, intent, and preparation with regard to the instant offenses under Hawai'i Rules of Evidence (HRE) Rule 404(b), would be admitted.

         On March 8, 2013, Hilario was convicted of Murder in the First Degree (Count 1), Retaliating against a Witness (Count 3), Intimidating a Witness (Count 4), and Bribery of a Witness (Count 5).

         On May 2, 2013, the Circuit Court heard three motions: (1) for a new trial, (2) for judgment of acquittal, and (3) to strike the motion for judgment of acquittal. The Circuit Court denied all three motions.

         This appeal followed.

         III.

         A.

         The Circuit Court Erred in Excluding Hilario from All ...


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