State v. Sua

NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 295OO

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAfI

STATE oF HAwArI, P1aintiff-Appe11ee, v.
ALOMALIETOA SUA, Defendant-Appellant

ZS¢!. H‘¥ 62 &JV 3162

APPEAL FR0M THE cIRcUIT c0URT oF THE FIRsT cIRcUIT
(cR. NO. 05-1-2647)

MEMoRANnUM 0PINIoN

(By: Nakamura, C.J., Fujise and Leonard, JJ.)

Defendant-Appellant Alomalietoa Sua (Sua) appeals from
the Judgment filed on November lO, 2008, in the Circuit Court of
the First Circuit (circuit court).y Sua was charged by
indictment with second degree assault, in violation of Hawaii
Revised Statutes (HRS) § 707-711(1)(a) (Supp. 2O09).W A jury
found Sua guilty as charged. The circuit court sentenced Sua to

five years of imprisonment, with a mandatory minimum term of

y The Honorable Richard W. Pollack presided over the proceedings

relevant to this appeal.

W HRS Section 707-711(1)(a) provides as follows:

§ 707-711 Assau1t in the second degree. (l) A person
commits the offense of assault in the second degree if:

(a) The person intentionally or knowingly causes
substantial bodily injury to another.

HRS 707-700 (Supp. 2009) defines "substantial bodily injury" as follows:

"Substantial bodily injury" means bodily injury which

causes:

(l) A major avulsion, laceration, or penetration of the
skin;

(2) A burn of at least second degree severity;
(3) A bone fracture;
(4) A serious concussion; or
(5) A tearing, rupture, or corrosive damage to the

esophagus, viscera, or other internal organs.

GB"U..:§

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three years and four months, and imposed the sentence to run
consecutively to any other term Sua may be serving.
Sua was an inmate at the Halawa Correction Facility

(Halawa) at the time of the charged assault. The alleged victim
(AV) of the assault was also an inmate at Halawa. The charged
assault was witnessed by an adult corrections officer through a
security camera monitor and was captured on videotape. AV did
not want to pursue the case and declined to testify or sign a
release of his medical records due to fear of the possible
repercussions. Nevertheless, Plaintiff-Appellee State of HawaiU_
(State) decided to pursue prosecution, obtained AV's medical
records and spoke to his doctor, and presented AV's medical

information to the grand jury. After Sua was indicted, AV signed

va release which authorized his doctors to disclose his medical

information to the State and to testify in court.

On appeal, Sua asserts that: 1) the circuit court erred
in denying Sua's motion to suppress evidence of AV's medical
information on the ground that it was privileged; 2) the circuit
court erred in denying Sua's motion to dismiss the indictment
because the State committed prosecutorial misconduct in
presenting AV's privileged medical information to the grand jury;
3) the Deputy Prosecuting Attorney (DPA) committed prosecutorial
misconduct at trial by repeatedly asking improper hearsay
questions designed to reveal AV's reasons for declining to pursue
the case; and 4) the circuit court erred by instructing the jury
on self-defense because the court improperly included
instructions pertaining to the use of deadly force. we affirm.

BAC' KGROUND
I .

The charge in this case stems from an incident that
occurred on August 12, 2003, after Sua and AV, both inmates at
Halawa, were released into the recreational area. Initially, Sua
and AV were "just talking story" and "playing handball." Then,
they began to spar, which was not allowed at Halawa.

Adult Corrections Officer Shawn Colotario (Colotario)
noticed the sparring on one of the monitors for the security

cameras and alerted the control station closest to the

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-recreational area. Soon, Sua and AV were no longer simply

sparring, but were fighting and attempting to hit each other. At
one point, someone got their attention at a window to the
recreational area, and Sua and AV turned toward the window. When

they both turned, Sua punched AV on the back right side of his
head, and AV fell face first onto the ground. AV appeared to be
unconscious and was not moving or defending himself. Sua
proceeded to kick and stomp on AV's head approximately 10 times.
Colotario described the stomps as "jump stomps" and the
kicks as "hard", He further stated that

AV's body rolled over after one of the kicks, so that AV was

"field-goal type" kicks.

facing upward, and that Sua continued to kick and stomp on AV's
face. The entire incident was recorded by the security cameras.
AV received medical treatment, first at Halawa and later at The
Queen's Medical Center (Queens), where he was treated by Dr.
Robert Duong (Dr. Duong).
The day after the incident, AV signed a Department of

Public Safety form entitled "Withdrawal of Complaint and
Release," in which AV stated that he did not want to testify in
the case and that he released the State from all liability
arising out of the dismissal of the charge. On September 2,
2003, AV told Special Agent Allen Napoleon (Agent Napoleon) of
the Attorney General's Office "that he did not wish to give a
statement nor sign his medical record release for fear of
repercussions."

§ The Attorney General's Chief Investigator, Donald K.L.
Wong (Investigator Wong), wrote a letter to the Halawa Custodian
of Records dated September 9, 2003, requesting AV's medical
"in the [August l2, 2003,] assault case." On September

2003, Agent Napoleon delivered the letter to the Halawa

records
l7,
Custodian of Records and obtained a copy of AV's medical records,
which included records from Queen's, concerning injuries

sustained by AV on August l2, 2003. Agent Napoleon also spoke to

Dr. Duong about AV's injuries.
II.
the State sought an indictment

The State called Colotario who

On December 15, 2005,

from the grand jury against Sua.

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testified that he witnessed Sua "falsecrack" AV on the back of
the head and then kick and stomp on AV's head, while AV was not
moving or defending himself. The State also called Agent
Napoleon who testified that Dr. Duong stated that AV had
"sustained a depressed right bone fracture in his nasal, and that
also lacerations and penetration of the skin." The grand jury
returned an indictment against Sua, which charged him with second
degree assault for intentionally or knowingly causing substantial
bodily injury to AV.

On June 15, 2006, Sua filed separate motions l) to
dismiss the indictment and 2) to suppress AV's medical records
and testimony regarding AV's medical condition. Both motions
were based on the ground that AV's medical information was
protected by the physician-patient privilege set forth in Hawaii
Rules of Evidence (HRE) Rule 504 (1993 & Supp7 2009). The State
opposed both motions. On July 23, 2006, AV signed a "Consent to
Disclose/Release Information" in which he authorized the doctors
who treated him to 1) disclose medical records and information to
the State and 2) testify in court regarding his evaluation,
diagnosis, and treatment for the injuries he received at Halawa
on August l2, 2003, The Consent to Disclose/Release Information
provided that AV's authorization expired in one year.

On June 28, 2007, a hearing was held on Sua's
motions.W The circuit court orally denied both motions and
subsequently issued written findings of fact, conclusions of law,
and an order denying both motions.

III.
During Sua's jury trial, the State called Colotario who

itestified about his observations through a surveillance camera

monitor of the incident between Sua and AV in the recreation
area. Colotario stated that he called down to have corrections
officers intervene as he observed Sua and AV sparing and then

engage in actual fighting. A corrections officer apparently got

y After Sua filed his motions, the proceedings were delayed by the
appointment of examiners to determine Sua's fitness to proceed and his penal
responsibility. The circuit court subsequently determined that Sua was fit to
proceed.

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Sua's and AV's attention at a window to the recreation area. As
Sua and AV both turned and walked toward the window, ColotarioA
saw Sua punch AV in the back of the head. AV fell face first
onto the ground and did not move or try to get up. Colotario
testified that Sua kicked and stomped on AV's head approximately
ten times, using "field-goal type" kicks and "jump stomps."
Eventually, corrections officers entered the recreation area and
tackled and restrained Sua. j

The State introduced the video recording of the
incident between Sua and AV in evidence and played the recording
for the jury. The recording is consistent with Colotario's
account. It shows Sua and AV sparring and then engage in more
serious boxing in which they attempt to hit each other. Neither
Sua nor AV appear to be hurt when they stop fighting and turn to
walk toward a window to the recreation area. At that point, Sua
hits AV in the head from behind causing AV to fall to the ground.
Sua then repeatedly kicks and stomps on AV's head while AV is
lying on the ground, without moving or attempting to defend
himself.

The State introduced photographs taken right after the
incident which showed lacerations and swelling to, and blood and
bruises on, AV's face and head. The State also called Dr. Duong
who testified that AV sustained fractures of the nasal bone on
the right side, lacerations on the left side of his face and
around the left eye, and soft tissue swelling around the face and
head.

DISCUSSION
I.

Sua argues that the circuit court erred in denying his
motions to suppress AV's medical information and to dismiss the
indictment. _We disagree.

A.

In the circuit court, Sua moved to suppress evidence
regarding AV's medical information and to dismiss the indictment
on the ground that AV's medical information was protected by the
physician-patient privilege set forth in HRE Rule 504. In its

written decision, the circuit court denied both motions,

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concluding that Sua lacked standing under HRE Rule 504 to assert
the physician-patient privilege on behalf of AV with respect to
the State's use of AV's medical information at the grand jury 1
proceeding or at trial. The circuit court further concluded that
by executing the Consent to Disclose/Release Information, AV
waived his privilege to refuse to disclose his medical
information and ratified the production of this information to
the State. We agree with the circuit court's analysis.

We conclude that the circuit court properly denied
Sua's motions to dismiss the indictment and suppress evidence
because Sua lacked standing under HRE Rule 504 to assert the
physician-patient privilege on behalf of AV. HRE Rule 504(c)
provides that the physician-patient privilege may only be claimed
by "the patient, the patient's guardian or conservator, or the
personal representative of a deceased patient." The physician at
the time of the communication is also "presumed to have authority
to claim the privilege, but only on behalf of the patient." HRE
Rule 504(c). The commentary to HRE Rule 504 states that "the
privilege belongs only to the patient . . . ."

Courts from other jurisdictions have concluded that a
criminal defendant does not have standing to assert the
physician-patient privilege to prevent the prosecution from
introducing evidence regarding a victim's medical condition at
trial. E.g. State v Miles, 123 P.3d 669, 674 (Ariz. Ct. App.
2005) (concluding that the defendant could not invoke the
physician-patient privilege on the victim's behalf and thereby
"immunize himself from prosecution for injuring the victim"
(internal quotation marks omitted)); State v. Evans, 802 S.W.2d
507, 511 (Mo. 1991) (en banc) ("[A] defendant in a criminal
prosecution cannot claim physician-patient privilege to bar
testimony from the victim's treating physician."); State v.
Gillespie, 710 N.W.2d 289, 297 (Minn. App. 2006) ("Because the
privilege belongs to the patient, no person other than the
patient has standing to assert the privilege."). The defendant's
lack of entitlement or standing to assert the victim's physician-
patient privilege also applies to grand jury proceedings. §§§ ln
re Grand Jury Proceedings, 437 N.E.2d 1118, 1120 (N.Y. 1982).

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In analogous circumstances, the HawaiH.and the United
States Supreme Courts have concluded that a criminal defendant is
not entitled to the suppression of evidence obtained by the
government in violation of a third party's constitutional rights.
see state v. Tau‘a, 98 Hawei‘i 426, 438-39, 49 P.3d 1227, 1239-40
(2002) ("[A]llowing a defendant charged with a possessory offense
to avail himself or herself of the exclusionary rule as a
function of the violation of a third party's constitutional
rights would produce absurd results."); United States v. Pavner,
447 U.S. 727, 731-32(1980) (concluding that a defendant, whose
own legitimate expectation or privacy was not invaded, lacks
standing under the Fourth Amendment to suppress evidence
illegally seized from a third person).

In addition, as the circuit court concluded, AV waived
any physician-patent privilege by executing the Consent to
Disclose/Release Information. Sua notes that the Consent to
Disclose/Release Information provided that Sua's authorization
to disclose his medical information expired in one year and that
the trial took place more than one year later. However, the
waiver of the privilege cannot be revoked once the privileged
information is disclosed; this is because the privilege only
protects confidential information and disclosed information is no
longer confidential. §§e HRE Rule 511 (1993); Cline v. William
H. Freedman & Associates, 882 S.W.2d 754, 761 (Mo. Ct. App.
1994); Driskell v. State, 659 P.2d 343, 351 (Ok. Ct. Crim. App.
1983). AV's waiver, through his execution of Consent to
Disclose/Release Information, applied to permit disclosure of his
medical information at trial. Moreover, as the circuit court
ruled, this waiver also served to ratify the disclosure of AV's
medical information to the State prior to the grand jury
proceeding. Accordingly, because Sua lacked standing to assert
any physician-patient privilege on AV's behalf and because AV
waived any privilege he had, the circuit court properly denied
Sua's motions to dismiss the indictment and to suppress evidence.

B.
On appeal, Sua argues that the circuit court erred in

failing to dismiss the indictment because the State's use of AV's

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privileged medical information in the grand jury constituted
prosecutorial misconduct. In the circuit court, Sua sought
dismissal of the indictment on the ground that AV's medical
information, which was introduced during the grand jury

proceeding, was protected by the physician-patient privilege,

~ Sua, however, did not seek dismissal of the indictment on the

ground of prosecutorial misconduct.

Because Sua did not argue that the indictment should be
dismissed for prosecutorial misconduct in the circuit court, we
need not consider this new argument on appeal. §§e State v.
Sunderland, 115 Hawafi 396, 399, 168 P.3d 526, 529 (2007)
(plurality opinion) ("[I]nasmuch as [defendant] did not raise his
right-to-privacy argument before the trial court, we do not
address it."); HRS § 641-2 (Supp. 2009) ("The appellate court

need not consider a point that was not presented in the
trial court in an appropriate manner."); State v. Naeole, 62 Haw.
563, 570, 617 P.2d 820, 826 (1980)(citing the established general
rule that "an issue raised for the first time on appeal will not
be considered by the reviewing courts").

Even assuming arguendo that Sua is entitled to raise
this claim of prosecutorial misconduct on appeal, we reject it.
In State v. Pulawa, 62 Haw. 209, 614 P.2d 373 (1980), the HawaiU.
Supreme Court adopted the rule that:

Unless the prosecutor's misconduct before a grand jury is
extreme and clearly infringes upon the jury‘s decision-
making function it should not be utilized as a stepping
stone to dismissal of an indictment. As has often been
observed, an indictment should only be quashed on the
clearest and plainest grounds.

lQ; at 217, 614 P.2d at 378 (internal quotation marks omitted).
Here, because Sua lacks standing to assert the

physician-patient privilege on AV's behalf, it follows that Sua
cannot rely on the claimed violation of AV's privilege as the
predicate for his prosecutorial misconduct claim. AV
subsequently waived his privilege, thereby ratifying the prior
disclosure of his medical records. The medical information for
AV that was presented to the grand jury was reliable, and Sua
does not question its trustworthiness. Under these

circumstances, we conclude that the alleged misconduct of the*

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State in conducting the grand jury proceeding was not extreme and
did not clearly infringe upon on the grand jury's decision-making
function. §§§ id4

Moreover, the guilty verdict subsequently returned by
the petit jury at trial rendered the alleged defect in the grand
jury proceeding moot or harmless error. §g§ In re Doe, 102
Hawafi 75, 78, 73 P.3d 29, 32 (2003) ("[A]bsent unusual
circumstances, any defects in a pretrial determination of
probable cause are rendered moot, or are without any effective
remedy, which is much the same thing, by a subsequent
conviction." (footnote omitted)); United States v. Mechanik, 475
U.S. 66, 70-73 (1986) (holding that the petit jury's guilty
verdict rendered the alleged defect in the grand jury proceeding
harmless beyond a reasonable doubt).9

II.

Sua argues that the DPA committed prosecutorial
misconduct by repeatedly asking improper hearsay questions
designed to reveal AV's reasons for declining to pursue the case.
On cross-examination of Agent Napoleon, Sua asked whether VA
wanted to pursue the case. Agent Napoleon responded, "At that
point, [AV] told me he did not want to give a statement, and also
that the reason is because it would cause more problems at
Halawa." On redirect, the DPA asked Agent Napoleon a series of
questions regarding what AV had said about why AV did not want to
pursue a complaint against Sua. The circuit court sustained
Sua's objections on the ground of hearsay to these questions.

The State's questions culminated in the DPA asking, "And was it
because [AV] felt that Sua would find out through the grapevine
and cause problems for [AV]?" The circuit court also sustained

Sua's hearsay objection to this question.

9 In light of our analysis, we need not address the State's arguments
that the use of AV's medical information in the grand jury proceeding did not
constitute prosecutorial misconduct because 1) the State's need for AV's
medical information to pursue prosecution against Sua trumped any physician-
patient privilege held by AV; and 2) the State obtained AV's medical
information pursuant to regulations under the federal Health Insurance
Portability and Accountability Act of 1996.

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We conclude that after the circuit court had sustained
Sua's hearsay objections to the DPA's questions, it was improper
for the DPA to persist in seeking to reveal AV's hearsay
statements through the DPA's questioning of Agent Napoleon.
Although we conclude that the DPA's conduct constitutes
"prosecutorial misconduct,"W we hold that it was harmless beyond
a reasonable doubt.

"Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard" to
determine whether, based on the record, "there is a reasonable
possibility that the error complained of might have contributed
to the conviction." State v. Maluia, 107 Hawafi 20, 24, 108
P.3d 974, 978 (2005) (internal quotation marks omitted). In
conducting this analysis, we consider "(1) the nature of the
conduct; (2) the promptness of a curative instruction; and (3)
the strength or weakness of the evidence against the defendant."
;d; (internal quotation marks omitted). In this case, the most
significant factor in our analysis is the strength of the
evidence against Sua.

The State presented overwhelming evidence that Sua was
guilty of the charged second degree assault. The video recording
of the charged incident, which was admitted in evidence and
played for the jury, showed that Sua attacked AV from behind,
then repeatedly kicked and stomped on AV's head while AV lay
defenseless, seemingly unconscious, on the ground. The
photographs of AV's face and head and the undisputed medical
testimony of Dr. Duong established that AV had sustained
substantial bodily injury. `

with respect to the other factors, although the DPA's
conduct was improper, it was not egregious. In addition, the
circuit court's actions in sustaining Sua's objections served as
a substitute for a curative instruction and diminished the effect

of DPA's improper questioning. Under the circumstances of this

§/ In State v. Maluia, 107 Hawai‘i 20, 25, 108 P.3d 974, 979 (2005), the
Hawai‘i Supreme Court stated that " [t[he term 'prosecutorial misconduct" is a
legal term of art that refers to any improper action committed by a
prosecutor, however harmless or unintentional."

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case, we conclude that there is no reasonable possibility that
the DPA's improper questioning might have contributed to Sua's
conviction. §§g id; at 27, 108 P.3d at 981.

III.

Sua argues that because he was only charged with
second-degree assault, the circuit court erred by giving the jury
a self-defense instruction that included an instruction
pertaining to the use of deadly force in self-defense. We
disagree.

The term "deadly force" for purposes of the law on
self-defense "means force which the actor uses with the intent of
causing or which the actor knows to create a substantial risk of
causing death or serious bodily harm." HRS § 703-300 (1993).
Thus, "deadly force" depends upon the intent of the actor, and
the use of force can constitute deadly force even if there is no
resulting injury. The second degree assault with which Sua was
charged requires proof that the defendant actually caused
substantial bodily injury to another. §§§ HRS § 707-711(1)(a).

A person who commits the crime of second degree assault in
violation of HRS § 707-711(1)(a) can use deadly force.

Therefore, contrary to Sua's claim, there was no inconsistency or
impropriety in the circuit court's including a deadly force
instruction in instructing the jury on self-defense in the
prosecution of Sua for second degree assault.

As the circuit court found, there was evidence to
support a finding by the jury that Sua had used deadly force.
Thus, the circuit court did not err in including an instruction
pertaining to the use of deadly force in instructing the jury on
self-defense.

In any event, any alleged error in the circuit court's
self-defense instructions was harmless beyond a reasonable doubt.
As noted, the video recording of the charged incident provided
overwhelming evidence that Sua had not acted in self-defense when
he hit AV from behind and kicked and stomped on AV's head while
AV was lying on the ground.

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CONCLUSIoN y
For the foregoing reasons, we affirm the November 10,
2008, Judgment of the circuit court.
DATED; Henelulu, Hawai‘i, April 29, 2010.

On the briefs:
Cynthia A. Kagiwada

for Defendant-Appellant. z ' 7{

Debbie L. Tanakaya, 7 Chief Judge
Deputy Attorney General
for Plaintiff-Appellee.

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