Thursday, December 13, 2007

ICA gets serious on serious bodily injury

State v. Maddox (ICA December 11, 2007)

Background. Mickey Maddox went over to his ex-girlfriend's house and got into a fight with Dale Mota, his ex's new squeeze. Maddox stabbed Mota in the chest with a utility tool. The blade missed his heart and all vital organs. Mota was taken to the hospital where he was treated by Dr. Nelson. The wound was two-inches long and went between Mota's ribs right next to his heart. There was no need for a surgery or any indication of a severe injury such as a heart laceration, vessel cut, or collapsed lung. Mota's wound was cleaned and bandaged w/o stitches. He was released w/in 24 hours. Maddox was charged with first-degree assault (HRS § 707-710(1)).

At trial, Dr. Nelson testified that Mota's wound created a substantial risk of death because it was a stab wound directly towards his heart. Dr. Nelson also testified that it was a miracle how the blade did not injure any important organs. Maddox testified at trial. He testified that Mota was the first aggressor. The jury found Maddox guilty of first degree assault.

The State moved for extended sentencing for the first degree charge pursuant to HRS § 706-662(1) because he was a "multiple offender." The circuit court granted the motion and sentenced Maddox to 20 years w/ a mand'y min. of 3 years and 4 months. The court also ordered $13,972.13 in restitution with the matter of payment to be determined by the Director of the Dept. of Public Safety.

You're Not "Serious" Are You? The ICA agreed with Maddox that there was insufficient evidence to prove first degree assault. HRS § 707-710(1) requires "serious bodily injury." Serious bodily injury is defined as "bodily injury which creates a substantial risk of death[.]" HRS § 707-700. The ICA held that when an injury is close to penetrating vital organs, but misses them does not create a substantial risk of death. The ICA added that the substantial risk of death must "flow from the bodily injury rather than the defendant's conduct[.]"
In other words, the injury to the victim is viewed objectively and the defendant's intent and motives to seriously injure the victim are irrelevant. The ICA noted that the defendant's conduct becomes relevant when the defendant is charged with attempted first degree assault (a valuable lesson for charging prosecutors everywhere). Maddox was not charged with attempted assault. Thus, there was insufficient evidence to find him guilty of first degree assault. Dr. Nelson's opinion that the wound created a substantial risk of death was based on the defendant's conduct, not an objective examination of the wound.

Not Serious, but Overwhelmingly Substantial. The ICA moved away from first degree and held that there was "ample, indeed overwhelming, evidence" that the wound was a "major avulson, laceration, or penetration of the skin" thereby constituting a "substantial bodily injury," the requirement 2d-degree assault. The ICA therefore held that the first-degree conviction conviction be overturned and the 2d-degree assault be imposed.

First Aggressor Evidence Needs Foundation, the Order of Which Depends on the Trial Ct. Maddox also argued that the trial court erred in precluded him from cross-examining Mota about his violent character. Evidence of Mota's violence generally not admissible. HRE Rule 404(a). However, the defendant may use character evidence that is "of a pertinent trait of character of the victim[.]" Id. When the accused seeks evidence of the victim's violent character as a Rule 404(a)(2) exception, there must be a foundation. The order of which comes first, the foundation or the evidence, is up to the trial court. HRE Rule 611 (trial court given discretion to control the mode of questioning.).

Here, the court precluded Maddox from cross-examining Mota about his violence until the evidence supported a finding that Mota was the initial aggressor. This was well w/in its discretion. In this case, Maddox should have recalled Mota after he testified that Mota attacked him first. Upon being recalled, Mota could've been examined about his violent character.

The ICA, in a footnote, noted that it was equally w/in the court's discretion to allow the cross-examination of Mota about his violent character "subject to striking such questions and testimony if the requisite evidentiary foundation was not subsequently laid[.]" This mode would help the narrative flow for the defense. Then again, had Maddox called Mota afterwards, it would have changed the jury's views on someone who had been already called. That, of course, is left to trial lawyers and their stratagems.

Comments by Prosecutor Imprudent, but not Misconduct. Maddox claimed prosecutorial misconduct based, among other things, on the State's assertion that his original charge was attempted murder at opening statement and that Maddox must be lying about the harm he suffered b/c he didn't tell the police at closing. The ICA noted that even though it "fail[ed] to see any valid reason for disclosing in opening" that Maddox was originally charged w/ attempted murder, and questioned the propriety of the argument at closing that Maddox was lying, it did not arise to misconduct. The remarks were short, they were objected, and the objection was sustained and the statements stricken. Thus, they were harmless BRD. As for the other assertions, they too did not contribute to Maddox's conviction.

Caught in Midstream. Maddox's extended term in sentencing was appealed before State v. Maogaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), in which the HSC held that the extended sentencing statute was unconstitutional. It was also before the legislature attempted to remedy the problem with the new statute, which was signed into law on Oct. 31, 2007. The ICA remanded the case to resolve the disputes about the new scheme of extended sentencing w/o opining how the new extended term sentencing laws would affect this case. The new sentencing laws allow retroactive sentencing at the discretion of the prosecutor. Only time will tell.

Non-Delegation Rule Alive and Well? ICA also found error in the restitution order. The sentencing court must enter into the record findings of fact and conclusions of law that the manner of payment is reasonable and on which the defendant can afford. See State v. Gaylord, 78 Hawai'i 127, 153, 155 P.2d 1167, 1193, 1995 (1995). Furthermore the State conceded that the sentencing court could not, as it did here, delegate the determination of the manner of payment to the Director of Public Safety. Thus, the ICA vacated the order and remanded.

One Lucky Buggah. Maddox seems to be a lucky guy. First, he was lucky he missed any of Mota's organs. Second, he was lucky the State didn't charge him with attempted first-degree assault. Third, he was lucky that his appeal was pending when the Maugaotega II and the legislative fix took place.

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