Topics: Appellate Review



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STATE v. ARLT R 401, 403

9 Haw. App. 263, 833 P.2d 902 (1992)



Defendant was convicted before the First Circuit Court, Honolulu County, of first‑degree robbery, and he appealed. The Intermediate Court of Appeals, Watanabe, J., held that: (1) testimony that defendant, after he was arrested, attempted to “lick the blood” off his shirt was relevant and admissible;
OPINION OF COURT:

In February 1990, Defendant, who had recently turned eighteen, and his two friends, Charles and Chance Dunn, came to Hawaii from California for a two‑week vacation. On the evening of February 28, 1990, after consuming several drinks at a luau, Defendant and his friends decided to cap off the evening with beer and tequila. The trio wandered into the Beach Market superette on Ena Road in Waikiki to purchase the liquor. When owner Suk Joo Kim (Kim) refused to sell the boys the liquor without proper identification, Defendant grabbed the bottle of tequila he had placed on the cash register counter and fled the store. Kim then pressed a silent alarm button and told the Dunn brothers to wait until the police arrived. The brothers, however, walked out of the store shortly thereafter. Kim then changed from slippers to sneakers, locked the store, and went looking for the boys. Eventually, he caught up with the two brothers in a parking lot about 100 meters from the store and asked them to sit down and wait on the sidewalk area. Charles Dunn remained seated, but Chance Dunn managed to run away.


Chance then found Defendant, and the two returned to Kim. Chance took the bottle from Defendant and placed it on a newspaper stand. When Kim asked for the bottle, Defendant picked up the bottle and held it out to Kim saying, “here is your bottle.” A “very angry” Kim extended his hand to receive the bottle and said, “give me.” ... At that point, Defendant thought that Kim was going to hit him. Defendant claims that he then swung the bottle in an attempt to deflect Kim's arm. However, Kim ducked and the bottle struck him on the head. The bottle broke, either when it struck Kim's head or when it fell to the ground after the blow.

The boys then fled in a panic and quickly hailed and jumped into a taxi. Subsequently, Kim caught up with the cab and jumped in front of it to block the boys' escape. The police arrived immediately thereafter and arrested Defendant and Charles.



After the boys were handcuffed, the police had them sit on the ground while awaiting transportation to the station. One of the officers remarked that there appeared to be blood on the shirts of all three boys. Defendant apparently overheard this statement and tried to “lick the blood” off his shirt. Defendant was ordered to stop and he did....

On April 24, 1990, Defendant was indicted on the charge of Robbery in the First Degree, a violation of Hawaii Revised Statutes (HRS) s 708‑ 840(1)(b)(i) (1985). After a jury trial in the First Circuit Court, Defendant was convicted as charged. Defendant was subsequently sentenced to eight years' incarceration as a youthful offender and ordered to pay $1,871.21 in restitution.



Defendant timely appealed, contending that the trial court committed reversible error in three respects.... Finally, Defendant argues that the trial court should not have allowed the “blood‑sucking” incident to be presented to the jury because such evidence was both prejudicial and irrelevant.

Addressing, first, the admission of the blood‑sucking evidence, we note initially that it is a well‑settled rule that the trial court is vested with discretion regarding the admissibility of evidence at trial and such a decision will not be reversed absent an abuse of discretion.
Reviewed against this standard, we conclude that the trial court did not abuse its discretion by admitting testimony about the blood‑sucking incident. The evidence was relevant to indicate Defendant's consciousness of his actions and his attempts to get rid of evidence that might link him to a crime. Any prejudicial effect that such testimony may engender does not, in our view, outweigh the relevancy of the testimony.

[JB: conviction vacated on other grounds]






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