Agasiva v American Samoa Government [2013] ASHC 31; AP 06-12 (11 July 2013)

SLIP OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2013)

MICHAEL AGASIVA,
Appellant,

v.

AMERICAN SAMOA GOVERNMENT,
Appellee.

High Court of American Samoa
Appellate Division

AP No. 06-12

July 11, 2013

[1] A constitutional error is harmless when it looks beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Where the error is non-constitutional, it is harmless unless it is more probable than not that it did not materially affect the verdict.

[2] A trial court‘s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. The question that must be determined is whether the trial court‘s findings of fact were illogical, implausible, or lack support in the record.

[3] A dangerous instrument is any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury.

[4] A serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

[5] Whether an instrument is a "dangerous instrument" within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument.

[6] Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation can potentially cause serious bodily injury or death.

[7] It is well-established that in a bench trial, a trial judge, as the trier of fact, will disregard any inadmissible evidence and improper argument.

[8] The U.S. Supreme Court two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel is: (1) the defendant must show that counsel‘s performance was deficient; (2) the defendant must show that the deficient performance prejudiced the defense.

[9] Under prong one of the test for ineffective assistance of counsel, the court must take into account the "strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.

[10] It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial.