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State v. Libero12/31/2003
FOR PUBLICATION
Defendant-Appellant James Libero (Libero) appeals from the October 4, 2000 Judgment entered by the Circuit Court of the Second Circuit (circuit court). Libero was charged with and convicted of the following:
Count One: Attempted Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993) and 707-701.5 (1993).
Count Two: Assault in the First Degree in violation of HRS § 707-710(1) (1993).
Count Three: Attempted Sexual Assault in the First Degree in violation of HRS §§ 705-500 (1993) and 707-730(1)(a) (1993).
Libero was sentenced to life with the possibility of parole on Count One, ten years of imprisonment on Count Two, and twenty years of imprisonment on Count Three. Counts One and Two were to run concurrently, and Count Three was to run consecutively with Count One. Libero was ordered to pay a Crime Victim Compensation fee in the amount of $500.00.
Libero argues that his convictions must be reversed because (1) the State relied on his confession to prove the corpus delicti for the assault, attempted sexual assault, and attempted murder charges and failed to corroborate the confession with other substantial evidence; (2) the evidence failed to prove that Libero had the specific intent to kill; (3) the corpus delicti and evidence pertaining to the attempted sexual assault was insufficient; (4) jury instructions were incomplete, misleading, confusing, and defective; (5) Libero was denied his right to a speedytrial; (6) Libero's self-incriminating statements to the police should have been suppressed; (7) the circuit court abused its discretion by allowing hearsay statements and testimony of other criminal acts; and (8) Libero's trial counsel failed to provide effective assistance. We affirm the October 4, 2000 Judgment as to Counts One and Two. We reverse the Judgment as to Count Three, Attempted Sexual Assault in the First Degree.
I.
This case arose from an incident that occurred on November 23, 1998 (incident). Rex Clark (Clark) testified that prior to the night of the incident he and the victim, Nancy Sirovetz (Nancy), had been camping about fifty-to-sixty feet apart in the same area on the beach in Kihei. The evening of the incident, Clark had gone with some friends to watch the sunset about four city blocks from where Clark was camping. Returning to his friends' car, Clark met Libero on the path; Libero was walking toward the area where Clark's campsite was. During the night Clark heard noises, like someone groaning and vomiting, coming from the area in which Nancy was camping. Assuming Nancy was merely drunk, Clark did nothing until the following morning when, upon checking on her, he found Nancy covered by a bloody sheet.
Officer Hickle testified that the medics were removing Nancy from the scene when he arrived on November 24, 1998. He questioned Nancy in the back of the ambulance, and she told him she had been asleep when the attack occurred and did not know who did it. Nancy was transported by ambulance to the hospital.
Dr. Thomas Rogers, Nancy's attending physician, testified that Nancy presented at the emergency room with severe blunt trauma to her head, resulting in multiple fractures to the right temporal area and the left side of her brain and skull. Nancy's right eye ball was ruptured, and there was bruising of her brain and a small blood clot on her brain.
Detective Jakubczak testified that while the police officers were canvassing the beach area where Nancy had been found, one person they talked to mentioned that she had seen Libero at approximately 7:00 p.m. on November 23, 1998 about 250 yards down th
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