*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-12-0001011
21-JUN-2016
09:56 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
GREGORY A. KAZANAS, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-12-0001011
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001011; CR. NO. 11-1-1592)
JUNE 21, 2016
McKENNA, POLLACK, AND WILSON, JJ.,
WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J.,
JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This month marks the fiftieth anniversary of the United
States Supreme Court’s landmark decision, Miranda v. Arizona,
384 U.S. 436 (1966). In that case, the Court held that “the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of [a]
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-
incrimination.” 384 U.S. at 444. The Court envisioned the
following procedural safeguard: “Prior to any questioning, the
person must be warned that he [or she] has a right to remain
silent, that any statement he [or she] does make may be used as
evidence against him [or her], and that he [or she] has a right
to the presence of an attorney, either retained or appointed.”
Id.
The Miranda advisement provides “concrete constitutional
guidelines for law enforcement agencies and courts to follow.”
384 U.S. at 442. At the time the Court announced the Miranda
rule, it had become increasingly alarmed by the psychologically
coercive nature of police interrogations. 384 U.S. at 448
(“[C]oercion can be mental as well as physical . . . [T]he blood
of the accused is not the only hallmark of an unconstitutional
inquisition.”) (citing Blackburn v. Alabama, 361 U.S. 199, 206
(1960)). Although none of the petitioners in the Miranda case
was the victim of “overt physical coercion or patent
psychological ploys,” the Court was nonetheless concerned that
the police officers who questioned the petitioners did not
“undertake to afford appropriate safeguards at the outset of the
interrogation to insure that the statements were truly the
product of free choice.” 384 U.S. at 457.
2
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
In this appeal, we decide whether an arrestee not advised
of his Miranda rights was “interrogated” in the constitutional
sense. Briefly stated, Petitioner/Defendant-Appellant Gregory
Kazanas (“Kazanas”) was charged with one count of Criminal
Property Damage in the First Degree and one count of
Unauthorized Entry into Motor Vehicle in the First Degree
(“UEMV”). The charges stemmed from events alleged to have taken
place on Halloween 2011. Kazanas was accused of breaking the
back windshield of a car then reaching through the driver’s side
open window to punch the driver in the face. Kazanas was
identified by the complaining witness and arrested. The
Honolulu Police Department (“HPD”) police officer assigned to
accompany Kazanas to Queen’s Medical Center knew the reason for
the arrest. In an apparent effort to make small talk and calm
Kazanas down, she asked him how his Halloween went. During the
conversation, Kazanas stated, “If people didn’t upset me, I
wouldn’t have to punch them.” The statement was admitted at
trial, and Kazanas was ultimately convicted of UEMV.
We hold that, although the officer testified that she did
not intend her small talk to provoke an incriminating response,
she “should have known that her words were reasonably likely to
elicit an incriminating response from the person in custody.”
State v. Joseph, 109 Hawaii 482, 495, 128 P.3d 795, 808 (2006)
(“Interrogation involves any practice reasonably likely to
3
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
invoke an incriminating response without regard to objective
evidence of the intent of the police.”). The questioning in
this case was reasonably likely to elicit an incriminating
response as the events of the night culminated in Kazanas’s
arrest for UEMV. The officer knew how Kazanas’s Halloween went.
Thus, her question was reasonably likely to elicit from Kazanas
details about the alleged crime. In other words, the police
officer subjected Kazanas, a person in custody pursuant to an
arrest, to interrogation; accordingly, Kazanas was entitled to
be advised of his Miranda rights before the small talk
conversation began. As Kazanas’s right against self-
incrimination was violated, his statement should have been
suppressed at trial.
On certiorari, Kazanas also argues that the circuit court
abused its discretion in admitting prior bad act evidence that
Kazanas had run, jumped, and punched two people in 2007 and
punched another person in the face, arms, and legs, then struck
her in the face with a cane in 2006, incidents that occurred
before the Halloween 2011 incident. On certiorari, Kazanas no
longer disputes that he opened the door to the admission of the
evidence when he testified he was physically incapable of
running, jumping, and punching ever since he sustained serious
injuries in a nine-story fall from a hotel balcony in 2005.
Rather, on certiorari, Kazanas challenges the circuit court’s
4
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
weighing of the evidence’s probative value versus the danger of
prejudice under Hawaii Rules of Evidence (“HRE”) Rule 403
(1980). We hold that the circuit court abused its discretion in
admitting evidence of the 2006 prior bad acts, as only the 2007
incident was necessary to counter Kazanas’s testimony, and the
probative value of the 2006 acts was substantially outweighed by
the danger of unfair prejudice.
In sum, the ICA erred in concluding that Kazanas’s
statement was not procured in violation of his Miranda rights
and therefore admissible. The ICA also erred in concluding that
the circuit court properly permitted the State to introduce
evidence of Kazanas’s 2006 prior bad acts. Therefore, the ICA’s
Judgment on Appeal and the Circuit Court of the First Circuit’s1
(“circuit court”) Judgment of Conviction of Probation Sentence
are vacated, and this case is remanded for a new trial.
II. Background
A. Indictment and Pre-Trial Motions
On November 3, 2011, Kazanas was charged by Indictment of
one count of Criminal Property Damage in the First Degree, in
violation of Hawaii Revised Statutes (“HRS”) § 708-820(1)(a)
1
The Honorable Rom A. Trader presided.
5
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
(2014)2, and one count of Unauthorized Entry into Motor Vehicle
in the First Degree, in violation of HRS § 708-836.5(1) (2014).3
Kazanas filed his Motion in Limine #1 seeking exclusion of
the following evidence:
(a) Testimonial or documentary evidence relating to the
defendant’s prior criminal record, including any reference
to defendant’s conviction and being placed on probation in
CR. NO. 06-1-0995; and
. . . .
(c) Statements made by the defendant to Honolulu Police
Officer CHRISTY-LYNN AVILLA on November 1, 1011 [sic] at
approximately 0050 hours at the Queen’s Medical Center. . .
.
Before trial, the State filed its Notice of Intent to Use
Evidence of Prior Acts. Specifically, the State sought to admit
evidence of (1) a 2007 assault in the third degree conviction,
stemming from an incident in which Kazanas and another person
attacked two men from behind, then ran from police and jumped a
fence; and (2) a 2006 abuse of family or household member
conviction, stemming from an incident in which Kazanas ambushed
his ex-girlfriend in her apartment; punched her on her face,
arms, and legs; and struck her in the face with a cane.
2
HRS § 708-820(1)(a) provides, as it did at the time of the alleged
offense, “A person commits the offense of criminal property damage in the
first degree if by means other than fire . . . [t]he person intentionally or
knowingly damages property and thereby recklessly places another person in
danger of death or bodily injury. . . .”
3
HRS § 708-836.5(1) provides, as it did at the time of the alleged
offense, “A person commits the offense of unauthorized entry into motor
vehicle in the first degree if the person intentionally or knowingly enters
or remains unlawfully in a motor vehicle, without being invited, licensed, or
otherwise authorized to enter or remain within the vehicle, with the intent
to commit a crime against a person or against property rights.”
6
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Before trial, the State also filed a Motion to Determine
the Voluntariness of Defendant’s Statement to the Police. The
motion sought orders from the court
1. Finding and concluding that the statements made by
Defendant Gregory A. Kazanas . . . to Officer Christy-Lynn
Avilla . . . on November 1, 2011, were voluntarily made.
2. Prohibiting the defense from commenting upon or making
reference to the substance of Defendant’s statement to the
police, unless the prosecution first introduces evidence of
the same.
The specific statements Kazanas made to Officer Avilla were, “I
wouldn’t have to punch people if they didn’t upset me,” and “If
you didn’t catch me now for this, you would’ve caught me later
for something else.”
Immediately before trial, the circuit court held a hearing
on the State’s motion. Officer Avilla testified as follows:
She transported Kazanas to Queen’s Medical Center in the early
morning hours of November 1, 2011. Kazanas was transported to
the hospital because he had injuries on his right hand. Officer
Avilla told Kazanas “multiple times” that he was under arrest
for UEMV, first when she handcuffed him, next during transport,
and lastly at the hospital. Although she did not inform him
that he had the right to remain silent, she did tell him, upon
his arrest, “that he was not allowed to talk about the case or
say anything about what he had been arrested for.”
She further testified that at the hospital, Kazanas began
“making comments that were rude and other patients could hear
7
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
it. . . .” Avilla moved Kazanas to an HPD room within the
hospital. Avilla and Kazanas sat about six feet away from each
other, with Kazanas in handcuffs. Although Officer Avilla did
not detect alcohol on Kazanas’s breath, his “demeanor made it
seem that he was under the influence of something. . . .”
In order to “help him calm down and get his mind off of
saying . . . rude things,” she began asking Kazanas “questions
about if he enjoyed Halloween that night, what kind of costumes
did he see, but nothing along the lines in reference to the
investigation. . . .” Officer Avilla testified she did not know
what his responses would be.
According to Officer Avilla, it was Kazanas who decided to
“spontaneously utter[], ‘If people didn’t upset me, I wouldn’t
have to punch them.’” She further testified that Kazanas’s
statement was not in response to any questions she asked him.
Although she was not sure how much time had passed between her
small talk questions and his statements, Officer Avilla
testified that his statements were made “just out of the blue,
that was out of context of what we were talking about,”
referring to the conversation about Halloween and costumes.
After Kazanas made his statement, Officer Avilla told him “his
case was still under investigation and to stop what he was
saying, because it could be used against him in a court of law.”
Kazanas then apologized; about a minute or so later, he then
8
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
stated, “If you didn’t catch me now, you would have caught me
for something else later.”
The circuit court granted in part and denied in part the
State’s Motion to Determine Voluntariness of Defendant’s
Statement to the Police. The court granted the motion in part,
finding that “Defendant’s statement to Officer Avilla, ‘I
wouldn’t have to punch people if they didn’t upset me’ was a
voluntary statement and is admissible.” The circuit court
excluded, however, Kazanas’s second statement to Officer Avilla
(“If you didn’t catch me now for this, you would have caught me
later for something else”); the circuit court reasoned that the
statement, while voluntary, was unfairly prejudicial to Kazanas.
The circuit court also took up the State’s notice of intent
to use Kazanas’s prior bad acts, namely the 2007 assault and a
2006 abuse of family or household member arrests that led to
convictions. The circuit court precluded use of Kazanas’s prior
bad acts but stated that it would revisit its ruling if the
defense opened the door to that evidence.
B. Trial Testimony
1. The State’s Case in Chief
The State called former HPD Police Officer James Easley.
He testified that he saw Kazanas dressed as a knight on
Halloween in Waikiki. He recognized Kazanas from his police
officer days. Years before (in 2005), Easley had responded to
9
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
the Aloha Surf Hotel after Kazanas had fallen from a ninth floor
balcony. When Easley arrived, Kazanas was still coherent.
Easley testified he would never forget Kazanas’s name or face
because the incident had an impact upon him.
Easley testified that he saw Kazanas, who was holding
something in his hand, “str[ike] the back window of a white
sedan that was stopped there in traffic, shattering the glass.”
Kazanas then “ran around to the front of the car and he jumped
on the hood of the car, kind of rolling on over, and then he
approached the driver’s side window of the vehicle and began
punching the driver through the . . . open window.” After the
incident ended, Easley contacted his police officer friends on
duty and identified Kazanas as the suspect.
The State then called complaining witness Geoffrey Ross.
He testified that it was about midnight on Halloween when he was
driving on Kuhio Avenue with friends, to see “the craziness, the
festivities, what people were doing.” Ross testified that a
group of about a dozen or two dozen people ran across the street
in front of the car. They were running to observe a fist fight.
“Out of the blue,” Ross testified, “one more person [came]
charging across the street . . . and ran headlong into the right
front corner of the car. . . .” Ross wondered if the person was
injured, when the person “[a]ll of a sudden . . . bounce[d] up
and continue[d] right through . . . to where the fight was.”
10
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Ross sensed that people who had just witnessed what happened
thought he was “a person who had just hit a pedestrian” and
“converged on the car to accuse [him]” and stop him from getting
away.
As he slowly moved his car over to the curb, a crowd of
people began yelling, pounding on the windows of the car, and
rocking the car. Someone broke the back windshield, but Ross
could not see who it was; Ross had a passenger in the back seat
at the time. Someone with heavy shoes or boots was also on the
hood of the car, stomping against the windshield in an attempt
to crack it. That person “hopped off to the left side of the
car” and came up to Ross’s open window. He “encircle[d Ross’s]
neck and h[e]ld onto it, and then -- with the one arm, and then
with the other . . . punch[ed] the side of [Ross’s] face with a
closed fist.” Ross was struck “two, three times” to the “[l]eft
side cheek and ear area, jaw.”
After the attack, Ross drove slowly up Kuhio Avenue towards
some police cars and reported the incident. Not long after the
incident, Ross was taken to do a drive-by identification of the
suspect. He was “[a]s certain as [he] could be” that he
identified Kazanas as his assailant during the drive-by
identification. On cross-examination, Ross testified that he
“didn’t believe that” the person who punched him was “the person
who broke the glass because [he] couldn’t see how a person could
11
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
break the glass and in that short of a time . . . then appear on
the front of the car.”
The State next called Officer Avilla, who had been with HPD
for five years at the time of trial. She testified that on
Halloween night in 2011, she was on patrol when she was
instructed to stand by Kazanas on Kuhio Avenue to await a field
show-up identification. After a positive identification was
made, Kazanas was placed under arrest. Officer Avilla’s role
was to transport Kazanas to Queen’s Medical Center. She noticed
Kazanas had cuts, scrapes, and redness on his right hand.
At the hospital, Kazanas “was being rude and saying things
that were verbally offensive to other people in the area,” so
Officer Avilla moved him to the HPD patient room away from other
patients. In order to “take his mind off of what he was
saying,” she engaged Kazanas in conversation. Officer Avilla
“ask[ed] him how was his Halloween, did he enjoy the costumes,
things along that matter, but never about the investigation.”
Kazanas then stated, “If people didn’t upset me, I wouldn’t have
to punch them.” Officer Avilla testified that Kazanas made the
statement even though she “was not asking him anything about the
investigation.” She then immediately told Kazanas “that
whatever he said can be used against him in a court of law, and
to stop what he was saying.”
12
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
2. The Defense’s Case in Chief
Kazanas’s defense was, not only did he not commit the
offenses, he was physically incapable of committing the
offenses. Kazanas called his friends Simon Farrington and Hans
Kolbisen, who were both with him on Halloween. Both testified
that Kazanas was not the person who broke the car windshield and
punched the driver.
Kazanas also testified in his own defense. He stated that
a group of friends met at his house before heading into Waikiki
on Halloween night. Kazanas was briefly separated from the
group. During the time he was separated, someone drop-kicked
him to the ground. He explained that red marks on his knuckles
were the result of his labored attempts to “[s]tand[] up after
[he] had been kicked. . . .”
During this part of his testimony, Kazanas elaborated on
his physical condition. According to Kazanas, his “wrist
doesn’t bend back . . . [due to] a double compound fracture from
falling off the nine-story building,” and his right arm cannot
extend beyond 90 degrees. Due to the limitations in his wrist
and right arm, Kazanas was “unable to get to the upright
position placing both of [his] hands on the ground, so [he had]
to use [his] knuckles [to] push [himself] off up the ground. . .
.” His right leg also does not bend beyond 90 degrees. He
explained that the nine-story fall resulted in “four lumbar
13
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
vertebrae [shattering], double compound fractures on [his]
wrists, double compound fractures on both of [his] thighs and
both of [his] shins, and broke[n] . . . arms and elbows and
shoulders. . . .” Kazanas recalled that he was in a “medically-
induced coma for three weeks [and] three weeks in recovery, in
traction. . . .”
He resumed his testimony about Halloween night, stating
that after he got up from being drop-kicked, he “shuffled away”
because he “can’t run.” Kazanas then returned to his group of
friends and witnessed the incident involving Ross. Kazanas
testified that he was not the one who smashed the car’s back
window. He also testified that he did not jump on the hood of
the car, because he would only have been able to “crawl up onto
the hood” because he “can’t jump.” He elaborated, “My legs
restrict me to jump. I have about 37 screws and seven rods in
my legs from my hips to my feet; it’s like I’m wearing a pair of
steel-toe boots all the time. I can barely jump an inch or two
off the ground.”
Kazanas also denied reaching into the car to punch Ross; he
testified, “I wouldn’t have been able to reach into the car
. . . I have limited range of motion on my arm, my right arm
specifically.” Kazanas explained that he has “calcium deposits
in [his] elbow restricting any movement,” as well as calcium
deposits in his knee that render him barely able to “walk up a
14
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
set of steps without kicking the top rung.” Kazanas
characterized himself as “disabled.” Kazanas stated that when
the incident was over, he walked away.
When asked why he told Officer Avilla, “I wouldn’t have to
punch people if they didn’t upset me,” Kazanas explained that he
was “under stress” and “was just speculating to the fact that
[the police officers] said that I was under arrest for an
assault.” On cross-examination, Kazanas affirmatively answered
the State’s question that he “couldn’t have done this attack
because [he] physically can’t attack a person. . . .”
As a result of Kazanas’s testimony that he was not
physically capable of committing the charged offenses, the State
sought to revisit the issue of Kazanas’s prior bad acts. The
State argued that Kazanas “opened the door” to the admission of
prior bad act evidence when he argued that he was physically
incapable of breaking the car windshield and punching Ross
because of injuries he suffered from the nine-story fall. The
defense counter-argued that the prior bad acts were dissimilar
to the acts for which Kazanas was on trial: first, Kazanas was
the one injured in the 2007 assault; second, the 2006 abuse of
family or household member involved Kazanas’s striking someone
with a walking stick, and there was no allegation in the instant
case that Kazanas struck anyone with an implement.
15
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
The circuit court allowed the admission of the prior bad
act evidence as follows:
[W]hat is abundantly clear in the record thus far is
that Mr. Kazanas as a result of the injuries that he
sustained in 2005 from the fall from the ninth floor lanai
of I believe it’s the Aloha Surf . . . that he sustained
some very serious and significant injuries that rendered
him essentially and in his words disabled and physically
incapable of engaging in certain types of physical conduct
or actions.
And so given that, the State’s request to question
the defendant regarding these prior incidents is not the
typical situation where it’s going to some sort of 404(b)
type of purpose such as to establish intent, knowledge,
modus operandi, absence of mistake, any of those things.
In this particular instance, the Court believes that the
information that is contained within the State’s notice, at
least selected and very limited portions of it, would
appear to be relevant to the jury’s assessment of the
defendant’s, number one, his credibility, because he’s made
statements here in court that he doesn’t have certain
physical capabilities, yet as documented in these reports
there are several references to him punching individuals,
to him running away, to him jumping . . . and to the extent
that the fact that there is contrary evidence that would
bear upon the credibility of the defendant’s testimony,
clearly that would be relevant.
Also, it would be relevant just squarely on the issue
of whether he has these physical capabilities or not. It’s
up to the jury to decide. I’m not going to decide. But
this evidence in that limited capacity would appear to be
appropriate.
The circuit court also noted that it was “absolutely crucial
. . . that a cautionary instruction would have to be given. . .
.” The circuit court further warned the State that the “only
thing that [it was] going to be permitted to ask the defendant
are things that related to his physical actions in those prior
incidents,” as related in the respective police reports, but not
the facts of arrest or conviction. The circuit court also noted
for the record that it performed a HRE Rule 403 balancing test
and “believe[d] the probative value of the proffered evidence as
16
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
limited by the Court outweigh[ed] any concern of any unfair or
substantial prejudice to the defendant.”
Before the State cross-examined Kazanas on his prior bad
acts, the circuit court instructed the jury as follows:
You may hear evidence relating to one or more prior
incidents involving the defendant. This evidence is
admitted for a specific limited purpose and only may be
considered by you as bearing upon the credibility of the
defendant and whether the defendant may or may not have
certain physical capabilities.
You are specifically instructed that you may not
consider this evidence as establishing any violent or bad
character of the defendant, or that it proves that he acted
in conformity therewith during the events underlying the
alleged offenses in this case.
You are prohibited from considering this evidence on
any other issue or for any other purpose besides what the
Court has ordered.
The State then cross-examined Kazanas about these prior bad
acts, which Kazanas acknowledged happened after his 2005 fall.
Kazanas admitted that in 2007, he ran “as fast as [he could]”
down the street after two men before jumping over a waist-high
picket fence. Then he and another individual punched the two
men in the face. Kazanas also admitted that in 2006, he struck
a woman in the face with his cane and punched her on the face,
arms, and legs.
On redirect examination, Kazanas testified that he used a
cane to get around after his nine-story fall. With regard to
the punching incidents, Kazanas testified that he punched with
his left arm because his right arm was in a cast. He also
17
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
testified that in the 2007 incident, he and another individual
were punching a person who had assaulted him earlier.
3. Verdict
The jury acquitted Kazanas of Count 1 (Criminal Property
Damage in the First Degree) and convicted Kazanas of Count 2
(UEMV). The circuit court entered a Judgment of Acquittal as to
Count 1, and a Judgment of Conviction of Probation Sentence as
to Count 2. Kazanas was sentenced to five years’ probation,
with a special condition of 90 days’ imprisonment. Kazanas
timely appealed.
C. ICA Appeal
On appeal, Kazanas raised two points of error:
A. The trial court erred in allowing Defendant’s statement
to Officer Avilla into evidence.
B. The trial court erred in allowing prior incidents
involving the Defendant into evidence.
In a published opinion, a majority of the ICA affirmed
Kazanas’s Judgment of Conviction of Probation Sentence,
rejecting both of Kazanas’s points of error, discussed in
greater detail below. State v. Kazanas, 134 Hawaii 117, 129,
336 P.3d 217, 229 (2014).
1. Admission of Statement to Officer
As to Kazanas’s argument that his incriminating statement
should have been suppressed at trial, the ICA held the
following:
18
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
We conclude that Officer Avilla did not subject Kazanas to
“interrogation” for purposes of Miranda and that Kazanas’s
statement was not in response to “interrogation” by the
Officer. Therefore, the absence of prior Miranda warnings
by Officer Avilla did not provide a basis to suppress
Kazanas’s spontaneous and volunteered statement. Under the
circumstances presented, we hold that the trial court
properly permitted the State to introduce Kazanas’s
statement at trial.
134 Hawaii at 119, 336 P.3d at 219. The ICA noted that there
was “no dispute that Kazanas was in custody when he made the
challenged statement to Officer Avilla,” thus limiting its
analysis to “whether Kazanas was subjected to ‘interrogation’
when he made the statement.” 134 Hawaii at 126, 336 P.3d at
226.
The ICA observed, “The United States Supreme Court defines
‘interrogation’ for Miranda purposes as referring to ‘express
questioning or its functional equivalent.’” Id. (citing Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980)). The ICA also
quoted Innis for the proposition that “the definition of
interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably
likely to elicit an incriminating response.” Id. (citing 446
U.S. at 301-02) (footnote omitted; emphasis added by ICA).
According to the ICA, this definition of “interrogation” was
adopted by the Hawaii Supreme Court in Ketchum, 97 Hawaii at
119, 34 P.3d at 1018, as follows: “[T]he ultimate question
becomes whether the police officer should have known that his or
19
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
her words or actions were reasonably likely to elicit an
incriminating response from the person in custody.” Id.
(brackets omitted). The ICA noted that Ketchum held that
whether “interrogation” has occurred depends upon the “totality
of the circumstances . . . with a focus upon the officer’s
conduct, the nature of the question (including whether the
question is a ‘routine booking question’), and any other
relevant circumstance.” 97 Hawaii at 121, 34 P.3d at 1020.
Further, the ICA noted, “[V]olunteered confessions or
admissions, obtained independent of express police questioning
or its functional equivalent, are admissible.” Kazanas, 134
Hawaii at 126, 336 P.3d at 226 (citing, inter alia, State v.
Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 284 (1985)).
The ICA then examined Ikaika, a case in which this court
held that the defendant was not subjected to interrogation. 67
Haw. 563, 698 P.2d 281. In that case, Lieutenant Richard
Bartolome, who was acquainted with the defendant (Ikaika), asked
him while he was booking and fingerprinting him, “What’s
happening? Must be heavy stuff for two detectives to bring you
down here?” 67 Haw. at 565, 698 P.2d at 283. Ikaika “responded
that he had been picked up for questioning about [a] murder,”
then, “[w]ithout further comment by Bartolome,” Ikaika blurted
out, “Bartolome I cannot lie to you, you’ve done a lot for me
20
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
and you have been too nice to me. I shot the haole.” Id. This
court held that Bartolome’s question was just a “pleasantry,”
and that Ikaika’s confession “was of the nature of an
unsolicited, spontaneous statement made in the absence of any
police questioning.” 67 Haw. at 567, 698 P.2d at 285.
Analogizing Ikaika to the instant case, the ICA concluded,
“under the totality of the circumstances, that Kazanas’s
statement, ‘If people didn’t upset me, I wouldn’t have to punch
them,’ was volunteered, unsolicited, and spontaneous, and was
not in response to any interrogation by Officer Avilla.”
Kazanas, 134 Hawaii at 127, 336 P.3d at 227. Therefore, the ICA
held that prior Miranda warnings were not required. Id. The
totality of the circumstances included (1) Officer Avilla’s
warning that Kazanas was not allowed to talk about the case or
say anything about what he had been arrested for; (2) the “small
talk” nature of Officer Avilla’s questions about Halloween, akin
to the “pleasantry” in Ikaika; (3) the non-responsive and “out-
of-the-blue” nature of Kazanas’s statement about punching
people; (4) the period of time that had passed between Officer
Avilla’s small talk questions and Kazanas’s statement; and (5)
Kazanas’s own explanation that he made the statement because he
was “under stress” and “just speculating to the fact that [the
police] said that [he] was under arrest for an assault.” 134
21
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Hawaii at 127-28, 336 P.3d at 227-28. The ICA then held that
the circuit court did not err in permitting the State to
introduce Kazanas’s volunteered statement at trial. 134 Hawaii
at 128, 336 P.3d at 228.
Judge Foley dissented. 134 Hawaii at 129, 336 P.3d at 229
(Foley, J., dissenting). To Judge Foley, “Kazanas’ statement
was obtained as a result of a custodial interrogation because
Avilla was aware of the circumstances of Kazanas’ detention, and
Avilla asked an open-ended question, the subject matter of which
was the same as that for which Kazanas was detained.” 134
Hawaii at 130, 336 P.3d at 230 (Foley, J., dissenting) (footnote
omitted). Unlike Lieutenant Bartolome in the Ikaika case,
Officer Avilla “was familiar with [the detainee’s] case, the two
were not previously acquainted, and [the detainee’s] statement .
. . was responsive to the police officer’s question.” Id.
(Foley, J., dissenting). Judge Foley considered Officer
Avilla’s explanation that she asked about Halloween to calm
Kazanas down to be “nothing more than a post hoc rationalization
for asking the question.” Id. (Foley, J., dissenting) (citing
Ketchum, 97 Hawaii at 119, 34 P.3d at 1018.
Judge Foley then analogized Kazanas’s case to Ketchum, a
case in which this court held that police officers who asked a
detainee for his home address should have reasonably known that
22
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
asking the question would elicit an incriminating response, as
the detainee lived at a residence, which was identified in a
search warrant, in which drugs had just been found. Id. (Foley,
J., dissenting) (citing Ketchum, 97 Hawaii at 128, 34 P.3d at
1027). Judge Foley stated, “[S]ince Avilla knew the events of
Halloween night led to Kazanas’ arrest, asking how his night
went invited Kazanas to describe events underlying his arrest.”
134 Hawaii at 131, 336 P.3d at 231 (Foley, J., dissenting).
Judge Foley believed the circuit court erred in admitting the
statement, and that the error was not harmless beyond a
reasonable doubt, as Kazanas’s case rested upon the credibility
of his witnesses versus those of the State. Id. (Foley, J.,
dissenting).
2. Admission of Prior Bad Acts
As to Kazanas’s second point of error, the ICA held “that
the trial court did not err in permitting the State to introduce
prior incidents involving Kazanas that were relevant to his
physical capabilities, after Kazanas opened the door to such
evidence.” 134 Hawaii at 119, 336 P.3d at 219. Kazanas opened
the door by testifying that after his 2005 nine-story fall, “he
was physically incapable of engaging in the conduct alleged by
[Ross], namely, jumping on the hood of the car and reaching into
the car and punching [Ross].” 134 Hawaii at 129, 336 P.3d at
23
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
229. The ICA also concluded, “[W]e cannot say that the Circuit
Court abused its discretion in balancing the probative value of
the evidence regarding the prior incidents against the risk of
unfair prejudice,” further noting that the circuit court’s
limiting instruction “served to mitigate any unfair prejudice
resulting from the evidence of the prior incidents.” Id.
(citation omitted). Judge Foley did not dissent to this
holding.
III. Standards of Review
A. Violation of Miranda Rights
Whether an accused’s right against self-incrimination under
the Hawaii constitution was protected through the use of a
Miranda warning is a question of constitutional law, which this
court reviews de novo under the right/wrong standard. State v.
Jenkins, 93 Hawaii 87, 100, 997 P.2d 13, 26 (2000) (citations
omitted). We “exercise our own independent constitutional
judgment[,] based on the facts of the case[,]” to answer
questions of constitutional law. Id.
B. HRE Rules 404(b) and 403
“Prior bad act” evidence under [HRE] Rule 404(b) . . . is
admissible when it is 1) relevant and 2) more probative
than prejudicial. A trial court’s determination that
evidence is “relevant” within the meaning of HRE Rule 401 .
. . is reviewed under the right/wrong standard of review.
However, a trial court’s balancing of the probative value
of prior bad act evidence against the prejudicial effect of
such evidence under HRE Rule 403 . . . is reviewed for an
abuse of discretion. An abuse of discretion occurs when
the court clearly exceeds the bounds of reason or
24
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
disregards rules or principles of law to the substantial
detriment of a party litigant.
State v. Behrendt, 124 Hawaiʻi 90, 102, 237 P.3d 1156, 1168
(2010) (brackets and ellipses in original) (citation omitted).
IV. Discussion
A. Kazanas’s Right against Self-Incrimination Was
Violated.
On certiorari, Kazanas argues, “There [were] no exigent
circumstances nor legitimate purpose for Officer Avilla to
engage in such conversation with Petitioner Kazanas while in her
custody which involved ‘Halloween’ events which were related to
the circumstances of his arrest.” Kazanas argues that Officer
Avilla, who had five years’ experience with HPD at the time of
Kazanas’s arrest, “should have known that such conversation was
reasonably likely to elicit an incriminating response from
Petitioner Kazanas.” The State, in its Response, counter-argues
that Kazanas “seems to have omitted numerous crucial details
that are part of the ‘totality of the circumstances’ surrounding
his utterance.” The State endorses the ICA majority’s detailing
of the totality of the circumstances, as well as its conclusions
that Officer Avilla’s questions did not constitute interrogation
and that Kazanas’s statement was volunteered.
The Fifth Amendment to the United States Constitution
states, in relevant part, that no person “shall be compelled in
any criminal case to be a witness against himself. . . .”
25
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Similarly, Article I, section 10 of the Hawaii Constitution
provides, in relevant part, that “[n]o person shall . . . be
compelled in any criminal case to be a witness against oneself.”
This section of the Hawaii Constitution “provides ‘an
independent source’ from that of the fifth amendment to the
United States Constitution for the ‘protections which the United
States Supreme Court enumerated’ in Miranda. . . .” Ketchum, 97
Hawaii at 116, 34 P.3d at 1015 (citing State v. Santiago, 53
Haw. 254, 266, 492 P.2d 657, 664 (1971)). “[A]s a matter of
state constitutional law,” id., “before the State may use
statements stemming from custodial interrogation, it must first
demonstrate the use of procedural safeguards effective to secure
the privilege against self-incrimination.” Ikaika, 67 Haw. at
566, 698 P.2d at 283-84 (citing, inter alia, Miranda, 384 U.S.
at 467).
A critical safeguard is the Miranda warning: an accused
must be “warned that he or she had a right to remain silent,
that anything said could be used against him or her, that he or
she had a right to the presence of an attorney, and that if he
or she could not afford an attorney one would be appointed for
him or her.” Ketchum, 97 Hawaii at 116, 34 P.3d at 1015
(brackets and citation omitted). The Santiago Court held that
“every accused must be informed of the fact that he or she has
26
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
certain rights under the Hawaii Constitution.” Ketchum, 97
Hawaii at 116, 34 P.3d at 1016 (citing Santiago, 53 Haw. at 267,
492 P.2d at 665) (brackets omitted). To be thus informed
“maintains the value of protecting the accused’s privilege to
freely choose whether or not to incriminate himself or herself,”
because “to convict a person on the basis of a statement
procured in violation of his or her constitutional rights is
intolerable.” Ketchum, 97 Hawaii at 116-17, 34 P.3d at 1015-16
(citing Santiago, 53 Haw. at 267, 492 P.2d at 665) (brackets and
ellipsis omitted).
We have held that the “Miranda rule” is a “constitutionally
prescribed rule of evidence that requires the prosecution to lay
a sufficient foundation” before adducing at trial evidence of
statements made by a defendant subjected to custodial
interrogation. 97 Hawaii at 117, 34 P.3d at 1016 (footnote
omitted). If a defendant was not Mirandized before providing
such statements, then the statements may not be used either as
direct evidence or to impeach the defendant’s credibility. See
State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994). A
defendant seeking to suppress his or her statement at trial
“must establish that his or her statement was the result of (1)
‘interrogation’ that occurred while he or she was (2) ‘in
27
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
custody.’” Ketchum, 97 Hawaii at 118, 34 P.3d at 1017
(citations omitted).
There is no dispute that Kazanas, who was under arrest by
the time Officer Avilla engaged him in conversation about
Halloween, was “in custody”; therefore, we examine whether
Officer Avilla’s Halloween questions constituted
“interrogation.”
As a preliminary matter, we clarify that determining
whether “interrogation” has taken place is not measured by the
“totality of the circumstances,” as Ketchum held; rather,
“interrogation” occurs when police know or should know that
their words or actions are reasonably likely to elicit an
incriminating response from the suspect, as Innis held. The
United States Supreme Court in Innis addressed the situation,
similar to this case, in which a defendant was in custody, and
the only question was whether the police officers “interrogated”
him. In other words, the Court did not address the meaning of
“custodial interrogation” as a single integrated determinant in
applying Miranda; rather, the court addressed only the meaning
of the “interrogation” prong under Miranda. See 446 U.S. at 298
(“It is . . . uncontested that the respondent was ‘in custody’
while being transported to the police station. The issue,
therefore, is whether the respondent was ‘interrogated’ by the
police officers in violation of the respondent’s undisputed
28
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
right under Miranda to remain silent until he had consulted with
a lawyer.”) (footnote omitted). The Innis Court defined “the
term ‘interrogation’ under Miranda” as “not only . . . express
questioning, but also . . . any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” 446 U.S. at
301 (footnotes omitted). Notably, the United States Supreme
Court did not reference a “totality of the circumstances”
standard for measuring when interrogation has occurred.
This court first adopted the Innis definition of
“interrogation” in State v. Paahana, 66 Haw. 499, 666 P.2d 592
(1983). Paahana discussed the distinction between the Innis
test for interrogation and the totality of the circumstances
test as follows:
To be considered custodial interrogation, an officer’s
questions or actions must be of such a nature that would
“‘subjugate the individual to the will of his examiner’ and
thereby undermine the privilege against compulsory self-
incrimination.” Rhode Island v. Innis, 446 U.S. 291, 299
(1980) (quoting Miranda v. Arizona, 384 U.S. 436, 457-58
(1966). In determining whether the defendant’s statement
was made in a custodial context, the totality of
circumstances must be considered, including the time, place
and length of the interrogation, the nature of the
questions asked, the conduct of the police at the time of
the interrogation, and any other pertinent factors. See
State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544
(1982), State v. Sugimoto, 62 Haw. 259, 265, 614 P.2d 386,
391 (1980), State v. Patterson, 59 Haw. 357, 361, 581 P.2d
752, 755 (1978). In determining whether an officer’s
questions constitute interrogation, the test is whether the
officer should have known that his words and actions were
reasonably likely to elicit an incriminating response from
defendant. Innis, 446 U.S. at 301.
29
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Paahana, 66 Haw. at 502-03, 666 P.2d at 595-96 (emphasis added).
This court, like the Innis Court, made no mention of a “totality
of the circumstances” review of the officer’s words and actions
in evaluating whether “interrogation” had taken place.
Instead Paahana cited Melemai, Sugimoto, and Patterson, for the
proposition that the “totality of the circumstances” test
applies in determining when on-the-scene and/or investigative
questioning by the police develops into custodial interrogation,
in the sense that the defendant is deprived of his or her
freedom of action in any significant way. In other words, in
Melemai, Sugimoto, and Patterson, there was no dispute that the
defendants had been interrogated by the police; at issue in
those cases was whether the defendants were “in custody” as a
result of the defendant being subjugated to the will of the
examining officer by the interrogation.
In Melemai, a jogger was struck by a pick-up truck. 64
Haw. at 480, 643 P.2d at 485. Eyewitnesses gave the police the
truck’s license plate number, and the police visited the
residence of the truck’s registered owner, the defendant. Id.
Without Mirandizing him, the police asked the defendant if he
had hit anyone with his car and why. Id. In analyzing whether
the defendant was in custody when the police questioned him, the
Melemai court stated:
30
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Since defendant was “interrogated” within the meaning of
Miranda, the determinative issue is whether defendant was
in custody or otherwise deprived of his freedom of action
in any significant way. This determination is to be made
by objectively appraising the totality of the
circumstances. These include the place and time of the
interrogation, the length of the interrogation, the nature
of the questions asked, the conduct of the police, and all
other relevant circumstances.
64 Haw. at 481, 643 P.2d at 544 (emphasis added and citations
omitted).
Similarly, Sugimoto involved police questioning of an
individual who voluntarily came to the police station to speak
about a crime and who was not, at that time, a suspect and was
not Mirandized. 62 Haw. at 265, 614 P.2d at 391. The defendant
later became a suspect and was charged and tried for the crime,
and he argued that “because the questioning took place at the
police station, Miranda warnings should have been given to him
even though at the time of the interrogation he was not a
suspect in the investigation.” Id. In other words,
“interrogation” standing alone was not at issue; rather, at
issue was whether the defendant was “in custody when he was
questioned.” This court stated
To determine whether custodial interrogation occurred and
Miranda warnings were required, we must objectively examine
the totality of the circumstances at the time of the
questioning. Factors for our consideration include the
time and place of the interrogation, the length of the
interrogation, the questions asked, the behavior of the
police officer, and any other pertinent circumstances. . .
We hold that the fact that the questioning occurred in the
police station is but one factor, albeit an important once,
in deciding whether the defendant-appellant was in custody
when he was questioned.
Id. (emphasis added).
31
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Lastly, Patterson involved investigative questioning by the
police when they encountered the defendant at the scene of a
burglary in progress. 59 Haw. at 358, 581 P.2d at 366. The
police asked the defendant if he lived at the property and
whether he had permission to be there; if he owned the car he
was standing next to; and whether personal property seen on the
front seat of the car belonged to him. Id. After the defendant
answered the questions in the negative, the police arrested him
upon probable cause that he committed burglary. Id. The
defendant successfully moved to suppress these statements,
arguing that he was not Mirandized at the time. 59 Haw. at 366,
581 P.2d at 753. This court reversed the suppression order,
noting
Where the police, prior to questioning the individual, are
in possession of facts sufficient to effect an arrest
without a warrant based upon probable cause, it is less
likely that the person confronted would be allowed to come
and go as he pleases. The degree of this likelihood may,
of course, depend upon the nature and gravity of the
offense, as well as other circumstances. In any event,
whether the defendant was in custody or otherwise deprived
of his freedom of action for Miranda purposes is to be
determined from the totality of the circumstances,
objectively appraised. These would include the place and
time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the
police, and all other relevant circumstances.
59 Haw. at 361, 581 P.2d at 755 (emphasis added and citations
omitted). In short, all of these cases utilized a “totality of
the circumstances” test in determining whether defendants, who
were plainly subjected to police questioning, were “in custody.”
32
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
In the instant case, the situation is precisely the reverse:
there is no dispute that Kazanas was “in custody” because he was
under arrest; at issue in this case is whether he was
“interrogated.” Therefore, the “totality of the circumstances”
test does not apply to this determination.
We recognize (as did the ICA) that this court stated in
Ketchum, “[W]hether a police officer has subjected a person to
‘interrogation’ is determined by objectively assessing the
‘totality of the circumstances.’” 97 Hawaii at 119, 34 P.3d at
1018 (citing State v. Ah Loo, 94 Hawaii 207, 210, 10 P.3d 728,
731 (2000); and Ikaika, 67 Haw. at 567, 698 P.2d at 284). The
cases cited for the “totality of the circumstances” standard for
analyzing whether “interrogation” has taken place do not support
the Ketchum court’s statement. Taking the older case, Ikaika,
first, we note that that case held, “As it is undisputed that
the Defendant in the instant case was in[]custody at the time
his incriminating statements were made, our inquiry will focus
on whether he was subject to interrogation. The test is whether
the police officer should have known that his words or actions
were reasonably likely to elicit an incriminating response from
the Defendant.” 67 Haw. at 567, 698 P.2d at 284 (citing Innis,
446 U.S. at 301) (footnote omitted). Ikaika footnoted the
“totality of the circumstances” test, listing “time, place and
33
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
length of interrogation, the nature of the questions asked, the
conduct of the police at the time of the interrogation, and any
other pertinent factors,” but only to note that the test is used
for purposes of “determining whether Defendant’s statements were
made in a custodial context,” i.e., not for purposes of
determining whether a defendant was “interrogated.” 67 Haw. at
567 n.2, 698 P.2d at 284 n.2 (emphasis added). Far from
adopting a “totality of the circumstances” test for
interrogation, Ikaika reaffirmed that “[t]he test” for
“interrogation” is the Innis test. 67 Haw. at 567, 698 P.2d at
284 (citing Innis, 446 U.S. at 301) (footnote omitted).
The second case cited by Ketchum, Ah Loo, similarly does
not support the proposition that the “totality of the
circumstances” test is used in determining “interrogation.” Ah
Loo involved facts similar to Melemai and Sugimoto, in that a
defendant was subjected to on-the-scene express questioning by
police. In Ah Loo, the defendant was asked his age by a police
officer who encountered him at a scene where underage drinking
was suspected. 94 Hawaii at 209, 10 P.3d at 730. The police
officer “subjected Ah Loo to ‘express questioning;’” thus, there
was no doubt Ah Loo was “interrogated.” 94 Hawaii at 210, 10
P.3d at 731. Like Melemai and Sugimoto, and unlike the instant
case, therefore, “the outcome dispositive issue” in the Ah Loo
case was “whether Ah Loo was ‘in custody.’” Id. This court
34
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
held, “To determine whether ‘interrogation’ is ‘custodial,’ we
look to the totality of the circumstances, focusing on ‘the
place and time of the interrogation, the length of the
interrogation, the nature of the questions asked, the conduct of
the police, and [any] other relevant circumstances.” Id.
(citing, inter alia, Melemai, 64 Haw. at 481, 643 P.2d at 544;
Sugimoto, 62 Haw. at 265, 614 P.2d at 391; and Patterson, 59
Haw. at 361, 581 P.2d at 755). In short, the statement in
Ketchum that “interrogation” is determined by looking at the
“totality of the circumstances” finds no basis in Ikaika or Ah
Loo or this court’s prior case law.4
Further underscoring the fact that Ketchum misstated the
test for interrogation, we note that we have used the “totality
of the circumstances” test only once since Ketchum’s
publication, see State v. Naititi, 104 Hawaii 224, 236, 87 P.3d
893, 905 (2004), and mentioned it only once in passing in State
v. McKnight, 131 Hawaii 379, 392, 319 P.3d 298, 311 (2013).
Furthermore, we have continued to refer solely to the Innis test
in analyzing interrogation under Miranda without conducting or
even referring to a “totality of the circumstances” review. See
Joseph, 109 Hawaii at 495, 128 P.3d at 808; Eli, 126 Hawaii at
4
The Dissent acknowledges that it relies on only what it sees as an
“implicit” application of a “totality of the circumstances” interrogation
test in Innis and Ikaika in supporting Ketchum’s statement. Dissent at 5.
35
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
522, 273 P.3d at 1208. This suggests that Ketchum’s formulation
does not constitute “the clear state of Hawaii law” on
interrogation under Miranda, contrary to the Dissent’s
assertion.5 Dissent at 3.
There is no need to overrule Ketchum, however, because the
case properly “reaffirm[ed Innis’] principle that
‘interrogation’ consists of any express question – or, absent an
express question, any words of conduct – that the officer knows
or reasonably should know is likely to elicit an incriminating
response.” 97 Hawaii at 121, 34 P.3d at 1020. Ketchum also
delineated the Innis principle as “the ultimate question” in
evaluating whether the police have interrogated a defendant in
custody. 97 Hawaii at 120, 34 P.3d at 1019. We agree and
reaffirm that the touchstone in analyzing whether
“interrogation” has taken place is whether the police officer
“should have known that his [or her] words and actions were
reasonably likely to elicit an incriminating response from the
defendant.” Paahana, 66 Haw. at 503, 666 P.2d at 595-96 (citing
Innis, 446 U.S. at 301).
5
Further, the Dissent maintains that we “denounce” the totality of the
circumstances test in evaluating whether interrogation has occurred. Dissent
at 1, 8. We do not “denounce” the test; we simply clarify that the
appropriate test to use under a careful reading of our precedent is “whether
the officer should have known that his words and actions were reasonably
likely to elicit an incriminating response from defendant.” Paahana, 66 Haw.
at 503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301)
36
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
In this case, in analyzing whether Kazanas was
“interrogated,” the majority of the ICA relied heavily upon
Ikaika, a case in which this court held that a defendant’s
confession that he “shot the haole” to his police lieutenant
acquaintance was “of the nature of an unsolicited, spontaneous
statement made in the absence of police questioning.” 67 Haw.
at 565, 698 P.2d at 283. Indeed, the court held the police
lieutenant’s words (“What’s happening? Must be heavy stuff for
two detectives to bring you down here?”) were merely a
“pleasantry.” 67 Haw. at 567, 698 P.2d at 285. Ikaika is
inapposite because under the facts of that case, Ikaika had not
been “interrogated.” As Judge Foley noted in dissent in this
case, unlike Bartolome and Ikaika, Avilla and Kazanas were not
previously acquainted with each other. 134 Hawaii at 130, 336
P.3d at 230 (Foley, J., dissenting). Also unlike Bartolome,
Avilla knew the circumstances behind her detainee’s police
involvement. Id. (Foley, J., dissenting). Therefore, when
Avilla asked Kazanas how his night was going, her words cannot
be understood as a mere pleasantry like Bartolome’s; it was
reasonably likely that her question would have elicited
Kazanas’s incriminating statement. This court in Ikaika noted
that Bartolome, on the other hand, “[a]t most . . . could have
expected that the Defendant respond to his pleasantry by
informing him of the reasons for the Defendant’s being booked
37
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
and the case he was involved in.” Ikaika, 67 Haw. at 567, 698
P.2d at 284-85. Instead, Ikaika’s full-blown confession was, in
those circumstances, voluntary. We agree with the dissent that
Ikaika does not govern this case.
Rather, Kazanas’s situation is more analogous to Joseph,
109 Hawaii 482, 128 P.3d 795, and State v. Eli, 126 Hawaii 510,
273 P.3d 1196 (2012), which both involved police speaking with
non-Mirandized suspects. In Joseph, the police engaged the
defendant in a “pre-interview,” in which they asked him
questions about his involvement in a shooting without first
reading him his Miranda rights; after the pre-interview, the
police Mirandized the defendant then audiotaped a formal
interview with him. 109 Hawaii at 484, 487, 128 P.3d at 797,
800. The defendant was then charged with murder and firearm
offenses, and he successfully moved to suppress his pre-
interview and formal interview statements to the police. 109
Hawaii at 487-88, 492, 128 P.3d at 800-01, 805. This court
affirmed the circuit court, holding that “it [was] evident
Miranda warnings, as independently grounded in the Hawaii
Constitution, were required prior to the pre-interview.” 109
Hawaii at 495, 128 P.3d at 808.
Similarly, in Eli, after a defendant had turned himself in
for assaulting his daughter, he was arrested but not Mirandized,
38
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
then invited to give “his side of the story” to an HPD detective
in a pre-interview. 126 Hawaii at 514, 273 P.3d at 1200. This
court held that “after arrest the police practice of inviting an
arrestee to make a statement and to give his or her ‘side of the
story’ or similar entreaties in a ‘pre-interview’ before Miranda
warnings are given, violates the defendant’s right against self-
incrimination, article I, section 10, and right to due process,
article I, section 5, of the Hawaii Constitution.” 126 Hawaii
at 513, 273 P.3d at 1199 (footnotes omitted).
Eli and Joseph both involved express police questions about
the circumstances giving rise to offenses later charged.
Kazanas’s case differs only in degree.6 In determining whether
Kazanas was “interrogated,” we look to the test articulated in
Paahana (and Eli and Joseph), which was “whether the officer
should have known that his words and actions were reasonably
likely to elicit an incriminating response from defendant.”
6
The Dissent argues that Joseph and Eli are distinguishable from this
case, inter alia, because the pre-interviews in those cases “occurred at the
police station in an interview setting,” and “Officer Avilla asked Kazanas
general questions about his Halloween while they were waiting at the
hospital.” Dissent at 16. It is unclear why the location of the questioning
should make a difference in determining, under Innis and Paahana, “whether
the officer should have known that his words and actions were reasonably
likely to elicit an incriminating response from defendant.” Paahana, 66 Haw.
at 503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301). The Dissent’s
distinction wrongly suggests that a court should more readily find that
“interrogation” has taken place if questioning occurs at the police station.
That suggestion finds no support in Innis or Hawaii case law. Further, such
a rule could encourage police officers to question suspects outside the
confines of the police station in order to take advantage of a relaxed
standard for reviewing whether interrogation has occurred based simply upon
where questioning has taken place.
39
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Paahana, 66 Haw. at 503, 666 P.2d at 595-96 (quoting Innis, 446
U.S. at 301); Eli, 126 Hawaii at 522, 273 P.3d at 1208; Joseph,
109 Hawaii at 495, 128 P.3d at 808. Under this test, we look to
the words and actions of the police officer, not to the totality
of the circumstances.
The Dissent argues that the Innis analysis cannot be
performed without a totality of the circumstances review.
Dissent at 8. There is a difference, however, between
considering the words and actions of the police officer and the
“totality of the circumstances.” We view a “totality of the
circumstances” review as sweeping in any circumstance, without
limitation, for the court’s consideration. See, e.g., Ketchum,
97 Hawaii at 119, 34 P.3d at 1018 (listing the following
considerations under a “totality of the circumstances” review:
“the conduct of the police, the nature of the questions asked,
and any other relevant circumstance. . . .” (emphasis added).
The Innis test itself, however, set limits on what courts should
consider in determining whether a police officer “should have
known [his or her words or actions] were reasonably likely to
elicit an incriminating response.” 446 U.S.at 302. Those
limits were as follows:
[T]he term “interrogation” under Miranda refers not only to
express questioning but also to any words or actions on the
part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from
the suspect. The latter portion of this definition focuses
40
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
primarily upon the perceptions of the suspect rather than
the intent of the police. This focus reflects the fact
that the Miranda safeguards were designed to vest a suspect
in custody with an added measure of protection against
coercive police practices, without regard to objective
proof of the underlying intent of the police.
446 U.S. at 301 (emphasis added). Thus, a police officer’s
words and actions evaluated under Innis would generally not
include evidence of police intent. Conducting a “totality of
the circumstances” review to include evidence of Officer
Avilla’s intent, like the Dissent has (Dissent at 13), goes
against Innis’s express holding.
It is true that the Innis court footnoted that police
intent may be relevant where, for example, “a police practice is
designed to elicit an incriminating response from the accused,”
as it would be “unlikely that the practice will not also be one
which the police should have known was reasonably likely to have
that effect.” 446 U.S. at 301 n.7. In other words, evidence
that the police know that they have designed a practice
reasonably meant to elicit incriminating responses should be
relevant in analyzing whether interrogation has taken place.
That is not the case here, where evidence of Officer Avilla’s
subjective intent (that she was trying to calm Kazanas down) was
used by the Dissent to excuse the reasonable consequence of her
conduct, which was that her conversation about Halloween
elicited an incriminating response from Kazanas. Dissent at 12.
Innis’s exception for considering police intent does not stretch
41
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
that far. See also Joseph, 109 Hawaii at 495, 128 P.3d at 808
(holding that “[i]nterrogation involves any practice reasonably
likely to invoke an incriminating response without regard to
objective evidence of the intent of the police,” and citing
State v. Jenkins, 1 Haw. App. 430, 437-38, 620 P.2d 263, 269
(1980), for the following statement: “That the matron may not
have subjectively intended the question to yield a confession or
an incriminating statement is irrelevant.”) (emphasis added).
In short, police intent is one of those circumstances that
would not be considered in reviewing a police officer’s words
and actions. In this case, the Dissent’s conclusion that
Kazanas was not interrogated relies heavily upon Officer
Avilla’s testimony about her subjective intent: “that the
questions she asked Kazanas were made in an attempt to calm
Kazanas down, and were nothing more than small talk that did not
have to do with the investigation.” Dissent at 12. The
Dissent’s analysis of the interrogation issue illustrates how
using the improper legal test yields an incorrect result. The
proper test is “whether the officer should have known that his
words and actions were reasonably likely to elicit an
incriminating response from defendant.” Paahana, 66 Haw. at
503, 666 P.2d at 595-96 (quoting Innis, 446 U.S. at 301).
In this case, Officer Avilla took Kazanas alone to HPD’s
private room in the hospital. Although she did not expressly
42
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
ask Kazanas about punching Ross and smashing the car’s rear
windshield, she did ask him how his Halloween went. As the ICA
dissent points out, Officer Avilla knew how Kazanas’s Halloween
went, as she encountered him at the tail end of his night at the
field show-up identification, and she was directed to transport
him to Queen’s Medical Center after his UEMV arrest, which had
occurred about an hour earlier. As such, from Officer Avilla’s
stance, it was “reasonably likely” that Kazanas would answer the
question about how his Halloween went with an incriminating
statement about the events leading to Kazanas’s arrest.
Therefore, Officer Avilla “should have known that [her] words or
actions were reasonably likely to elicit an incriminating
response’ from the person in custody.” Ketchum, 97 Hawaii at
119, 34 P.3d at 1018 (citation omitted). In other words,
Officer Avilla subjected Kazanas to “interrogation,” without the
protection of a Miranda advisement, thus rendering inadmissible
his statement. See Naititi, 104 Hawaii at 237, 87 P.3d at 906
(“[I]f a defendant’s Miranda rights against self-incrimination
have been violated, then any resulting statement will be
inadmissible at trial as a per se matter. . . .”)
To conclude that Officer Avilla’s question did not
constitute “interrogation” (as the ICA majority and the Dissent
have done) would undermine Kazanas’s right against self-
43
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
incrimination under Article I, Section 10 of the Hawaii
Constitution and encourage police officers to engage suspects in
custody in non-Mirandized and seemingly harmless conversations
about “how their night was going” in the hope that the suspects
may make incriminating statements about the events leading up to
their arrest. As the United States Supreme Court has observed,
the Miranda warning “may serve to make the individual more
acutely aware that he is faced with a phase of the adversary
system -- that he is not in the presence of persons acting
solely in his interest.” Miranda, 384 U.S. at 469. In this
case, Officer Avilla was attending an arrestee at Queen’s
Medical Center; although she testified that she intended her
“small talk” to calm Kazanas down, her role as a police officer
rendered her part of a system that was adversarial to Kazanas at
that moment, and engaging in conversation at that point could
not be “solely in his interest.” Kazanas had a right to know
that then, via a proper Miranda advisement.
As Kazanas’s statement was procured without a proper
Miranda advisement, the circuit court erred in admitting the
statement at trial. See Hoey, 77 Hawaii at 33, 881 P.2d at 520.
We cannot say that this error is harmless beyond a reasonable
doubt. This case turned on the credibility of the State’s
versus Kazanas’s witnesses. See State v. Fetelee, 117 Hawaii
44
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
53, 86, 175 P.3d 709, 742 (2008) (“In light of the [improper
admission of evidence] and the fact that this case turns on the
credibility of [the trial witnesses], we cannot say that the
trial court’s admission of the evidence was harmless beyond a
reasonable doubt.”) There was a reasonable possibility that the
admission of the statement contributed to his conviction.
Lastly, we address the ICA majority’s incomplete statement
about confessions:
The use of a criminal defendant’s voluntary
statements and admissions as evidence at trial is a
critical component of our criminal justice system.
Voluntary statements and admissions are reliable. They
provide key evidence necessary to solve crimes and
facilitate our search for the truth. They provide
assurance to the public that the culprit has been brought
to justice and promote faith and confidence in our judicial
system.
Kazanas, 134 Hawaii at 118, 336 P.3d at 218. A defendant’s
statements are only admissible when a defendant, subjected to
custodial interrogation, is first advised of his or her Miranda
rights, and, if so advised, nevertheless voluntarily,
intelligently, and knowingly waives his or her constitutional
rights. A defendant in custody and subjected to interrogation
has a right to be advised of the consequences of foregoing his
or her right against self-incrimination so “that there can be
any assurance of real understanding and intelligent exercise of
the privilege.” Miranda, 384 U.S. at 469. Then, should a
Mirandized defendant decide to waive his or her right against
45
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
self-incrimination, the State must show that the waiver was made
“voluntarily, knowingly, and intelligently.” State v. Amorin, 61
Haw. 356, 358, 604 P.2d 45, 47 (1979). A court reviewing such
a waiver must “examine the entire record and make an independent
determination of the ultimate issue of voluntariness based on
the totality of circumstances.” McKnight, 131 Hawaii at 393,
319 P.3d at 312 (citations omitted). Thus, the use of a
defendant’s statements at trial often requires a rigorous review
7
beyond a simple determination of “voluntariness.” Therefore,
the ICA majority’s statement is incomplete.8
7
In Eli, we explained the difference between the Miranda inquiry and the
voluntariness inquiry as follows:
It must be emphasized that the Miranda requirement, based
on article 1, section 10 of the Hawaii Constitution,
requires warnings to be given prior to questioning in a
custodial setting, while constitutional due process, based
on article 1, section 5 of the Hawaii Constitution,
requires a statement to be “voluntary” in order to be
admissible. “Put differently, if a defendant’s Miranda
rights against self-incrimination have been violated, then
any resulting statement will be inadmissible at trial as a
per se matter, obviating the need for any [voluntary] due
process inquiry into whether the defendant’s confession has
been coerced[.]” “Correlatively, having been properly
Mirandized, if a defendant who is subjected to custodial
interrogation makes a statement, then, depending on the
circumstances, an inquiry into whether the defendant’s
right to due process of law has been violated via coercion,
may be warranted.”
Eli, 126 Hawaii at 520 n.17, 273 P.3d at 1206 n.17 (citations omitted).
8
The Dissent defends the ICA majority’s view that Kazanas’s statement
was voluntary, asserting
This case does not involve long periods of isolation or
interrogation, an atmosphere of intimidation, or purposeful
subjugation of the defendant to the will of the police
officer. Furthermore, this case does not involve the
“dangers of false confessions” that accompany an
intimidating interrogation atmosphere. If anything, the
majority’s holding in this case undermines the truth
(continued. . .)
46
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
B. The Circuit Court Abused Its Discretion in
Applying Rule 403.
Kazanas argues on certiorari that “allowing references to
the prior aggressive conduct [i.e., punching and striking other
persons on separate occasions] was definitely prejudicial and
outweighed the probative value relating to Petitioner Kazanas’s
phsycial [sic] capabilities.” In other words, Kazanas
challenges the circuit court’s weighing of probative value
versus prejudicial effect of the evidence under HRE Rule 403.
“[W]hen evidence of other crimes, wrongs, and acts [under
HRE Rule 404(b)] is offered by the prosecution, the problem for
(continued. . .)
seeking function of the judicial system by suppressing
statements that were made without the influence of an
interrogation atmosphere. See State v. Flores, 131 Hawaii
43, 56, 314 P.3d 120, 133 (2013) (“Our courts are . . .
forums for the discovery of truth.”); see also Miranda, 384
U.S. at 478 (“Any statement given freely and voluntarily
without any compelling influences is, of course, admissible
in evidence.”)
Dissent at 18-19. First, the constitutional test does not require
proof of an intimidating interrogation atmosphere. The relevant
inquiry is whether Kazanas was subjected to interrogation.
Second, the Flores case cited by the Dissent does not stand for
the proposition that suppressing statements hinders the truth-seeking
function of trial. Rather, Flores held that a jury should be
instructed of the option of convicting a defendant of a lesser included
offense in order to ascertain the truth and render an accurate verdict.
131 Hawaii at 56, 314 P.3d at 133.
Lastly, we respectfully believe the Dissent takes the Miranda
proposition about voluntary statements out of context. The Miranda
quotation goes on to state, “There is no requirement that police stop a
person who enters a police station and states that he wishes to confess
a crime, or a person who calls the police to offer a confession or any
other statement he desires to make.” 384 U.S. at 478. The United
States Supreme Court sought to reassure law enforcement that its
decision would not render all voluntary confessions inadmissible in
evidence. Kazanas’s case does not involve a voluntary unburdening of
the offenses committed on Halloween. Rather, his statements were made
in response to Officer Avilla’s interrogation.
47
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
the trial court is one ‘of classifying and then balancing[, if
necessary]. . . the prejudicial impact of the evidence [with]
its probative worth.’” State v. Castro, 69 Haw. 633, 644, 756
P.2d 1033, 1041 (1988) (first set of brackets in original;
second set of brackets added). The factors the trial court
balances are:
the strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the
interval of time that has elapsed between the crimes, the
need for the evidence, the efficacy of alternative proof,
and the degree to which the evidence probably will rouse
the jury to overmastering hostility.
Id. (citation omitted).
In its Response, the State argues that the balance of
Castro factors tipped in favor of admitting the prior bad act
evidence:
The strength of the evidence regarding the prior
incidents was relatively substantial inasmuch as [Kazanas]
admitted to running jumping, and punching other people.
The similarities between [Kazanas’s] conduct at issue in
the prior incidents and the conduct in which he engaged
while committing the unauthorized entry into the CW’s car
were readily apparent. The period of time between the
prior incidents and the crime the jury convicted [Kazanas]
of committing in the instant case also mitigated in favor
of allowing the deputy prosecutor to question him about the
prior incidents. The instant crime occurred after
[Kazanas’s] fall in 2005 while he was allegedly still
suffering from the debilitating effects of the fall. The
record also reveals that the deputy prosecutor demonstrated
a legitimate and compelling need for the evidence regarding
the prior incidents, inasmuch as the evidence would refute
[Kazanas’s] claim that he “couldn’t have done this attack
because [he] physically [could not] attack a person[.]”
Moreover, the record does not reveal and [Kazanas]
does not contend that the deputy prosecutor had more
effective alternate proof to refute his claim regarding the
allegedly lasting and debilitating effects of his fall.
Significantly, there is no reason to conclude the evidence
regarding the prior incidents “probably rouse[d] the jury
to overmastering hostility,” inasmuch as the deputy
48
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
prosecutor generally limited the questions to that which
was reasonably necessary to establish [Kazanas’s] physical
abilities.
Further, the State argues that the jury was given a limiting
instruction on the use of the prior bad act evidence
(immediately before the prosecutor’s questioning of Kazanas
about the prior bad acts, as well as at the end of trial), which
the jury was presumed to have followed, and which dispelled any
potential for unfair prejudice to Kazanas due to the admission
of the evidence. The State argues, “[T]he ICA concluded
correctly that ‘we cannot say that the Circuit Court abused its
discretion in balancing the probative value of the evidence
regarding the prior incidents against the risk of unfair
prejudice, in allowing the State to introduce evidence of the
prior incidents.”
In this case, it is clear that evidence of the 2007 assault
was properly admitted under Rule 403 for all the reasons
expounded by the State above. The 2007 assault incident
involved witness statements that Kazanas and another individual
ran up to two men, punched them in the face, then ran from
police, physical acts Kazanas testified he was incapable of
performing after the 2005 accident. Kazanas even jumped a fence
in the 2007 incident an attempt to elude the police.
Upon the admission of the evidence of the 2007 assault,
however, evidence of the 2006 abuse of family or household
49
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
member incident was an abuse of discretion. Preliminarily, it
should be noted that the 2006 abuse incident involved two sets
of prior bad acts occurring contemporaneously: first, the
complaining witness stated that Kazanas punched her on the face,
arms, and legs; second, the complaining witness and another
witness stated that Kazanas struck the complaining witness on
the face with his cane. It is true that the evidence of the
2006 abuse bad acts was strong (based on similar evidence as the
2007 assault incident, namely police reports and witness
statements). Kazanas’s act of striking the complaining witness
in the face with a cane, however, was not similar to the
physical acts of punching, running, and jumping that he was
accused of in the instant case, and that he denied the physical
ability to perform after the 2005 accident. Therefore, the
evidence was not needed. Alternative evidence of the 2007
assault incident, which the State was allowed to present, was
more efficacious on the issue of Kazanas’s physical ability to
punch, run, and jump. Moreover, the fact that Kazanas struck a
woman in the face with his cane carried with it the potential to
rouse the jury to overmastering hostility against Kazanas. The
circuit court, in short, abused its discretion in weighing the
probative value versus potential prejudicial effect of the 2006
cane strike bad act evidence.
50
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
As to the punches to the complaining witness’s face, arms,
and legs in the 2006 abuse incident, while that evidence might
have been similar to the punch in the instant case, it was also
not needed, as the State already had been allowed to present
efficacious, alternative proof of the same physical capabilities
(i.e., evidence of the 2007 assault). And again, evidence that
Kazanas punched a woman in the face, arms, and legs could have
potentially roused the jury to overmastering hostility against
Kazanas. Therefore, the circuit court abused its discretion in
weighing the probative value versus potential prejudicial effect
of the 2006 punching bad act evidence.
Consequently, the ICA erred when it held that it could not
conclude that the circuit court abused its discretion in
performing the HRE Rule 403 balancing test. We cannot say that
this error is harmless beyond a reasonable doubt. This case
turned on the credibility of the State’s versus Kazanas’s
witnesses. See Fetelee, 117 Hawaii at 86, 175 P.3d at 742.
There was a reasonable possibility that the admission of the
2006 bad act evidence contributed to his conviction.
V. Conclusion
Kazanas was subjected to interrogation when Officer Avilla
asked him about his Halloween. Article I, Section 10 of the
Hawaii Constitution therefore required Officer Avilla to have
51
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
advised Kazanas of his Miranda rights prior to engaging him in
the conversation. Further, as his right against self-
incrimination was not safeguarded during the conversation with
Officer Avilla, Kazanas’s statement should have been suppressed.
Therefore, the ICA majority erred in holding that Kazanas’s
statement was voluntary and therefore admissible at trial. With
respect to the 2006 incident, the ICA also erred in concluding
that it could not be said that the circuit court abused its
discretion in performing its HRE Rule 403 balancing in admitting
evidence of Kazanas’ prior bad acts. The ICA’s Judgment on
Appeal and the circuit court’s Judgment of Conviction of
Probation Sentence are vacated, and this case is remanded for
further proceedings consistent with this opinion.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
52