 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Galo5/21/2003
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
Defendant-Appellant Pua Galo (Galo) appeals from the January 24, 2002 Judgment entered by the Circuit Court of the First Circuit (the circuit court), Judge Sandra A. Simms presiding, convicting him of Promoting a Dangerous Drug in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1242(1)(c) (1993). Galo argues that the Judgment should be vacated for three reasons:
(1) The circuit court erred in denying his motion to suppress the pre-trial identification of him by police officer Candace Keliikipi (Officer Keliikipi) because the "identification was based on a blatantly suggestive arrest photograph and was not supported by any of the minimal factors that test reliability";
(2) The circuit court abused its discretion in sentencing Galo to a mandatory minimum prison sentence of three years and four months as a repeat offender under HRS § 706-606.5 (1993 & Supp. 2002) because there was insufficient foundation laid that he had been previously convicted of burglary to support granting of the motion; and
(3) It was cruel and unusual punishment to sentence him to ten years' imprisonment with a mandatory minimum of three years and four months for giving, not selling, a 0.028 gram piece of rock cocaine to an undercover officer.
Based on our review of the record and the briefs submitted by the parties, and having duly considered the case law and statutes relevant to Galo's arguments, we disagree with Galo.
A.
As to Galo's first argument, this court has previously stated:
When the defendant challenges admissibility of eyewitness identification on the grounds of impermissibly suggestive pretrial identification procedure, he or she has the burden of proof, and the court, trial or appellate, is faced with two questions: (1) whether the procedure was impermissibly or unnecessarily suggestive; and (2) if so, whether, upon viewing the totality of the circumstances, such as opportunity to view at the time of the crime, the degree of attention, the accuracy of prior description, the level of certainty, and the elapsed time, the witness' identification is deemed sufficiently reliable so that it is worthy of presentation to and consideration by the jury. State v. DeCenso, 5 Haw. App. 127, 131, 681 P.2d 573, 577-78 (1984) (quoting State v. Tuua, 3 Haw. App. 287, 289, 649 P.2d 1180, 1183 (1982)).
In denying Galo's April 20, 2001 motion to suppress, the circuit court considered the above factors and decided that Officer Keliikipi's identification of Galo had been "sufficiently reliable[.]"
Upon viewing the totality of the circumstances, including the opportunity of [Officer Keliikipi] to view [Galo] at the time of the offense, the degree of [Officer Keliikipi's] attention during the purported drug transaction, the accuracy of her prior description of [Galo], the level of certainty with which she identified [Galo] from the photograph, and the elapsed time between [Officer Keliikipi's] observation of [Galo] and her identification through the arrest photograph, [Officer Keliikipi's] identification is sufficiently reliable so that it is worthy of presentation to and consideration by the trial fact-finder(s).
Our review of the record indicates that there was substantial evidence adduced below to support the circuit court's determination that Officer Keliikipi's identification of Galo was sufficiently reliable to be considered by the jury. The circuit court's ruling was thus not clearly erroneous.
B.
Regarding Galo's second argument, we conclude, based on State v. Pantoja, 89 Hawaii
Page 1 2 3 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|