State v. Smith

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2020
09:12 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRIAN LEE SMITH, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Ginoza, C.J., and Chan and Wadsworth, JJ.)

Defendant-Appellant Brian Lee Smith (Smith) appeals
from the Judgment of Conviction and Sentence (Judgment), entered
on June 26, 2019, in the Circuit Court of the Third Circuit
(Circuit Court).1/ After a jury trial, Smith was convicted of:
(1) Murder in the Second Degree, in violation of Hawaii Revised
Statutes (HRS) § 707-701.5(1) (2014)2/ (Count 1); (2) Reckless
Endangering in the First Degree, in violation of HRS § 707-713(1)

1/
The Honorable Melvin H. Fujino presided.
2/
HRS § 707-701.5 provides, in relevant part:
(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if the
person intentionally or knowingly causes the death of
another person . . . .

(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.
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(2014)3/ (Count 2); (3) Ownership or Possession Prohibited
(operable firearm), in violation of HRS § 134-7(b) and (h)
(2011)4/ (Count 4); (4) Ownership or Possession Prohibited
(ammunition), in violation of HRS § 134-7(b) and (h) (Count 5);
and (5) Carrying or Use of Firearm in the Commission of a
Separate Felony, in violation of HRS § 134-21(a) (2011)5/ (Count

3/
HRS § 707-713 provides:
(1) A person commits the offense of reckless
endangering in the first degree if the person employs widely
dangerous means in a manner which recklessly places another
person in danger of death or serious bodily injury or
intentionally fires a firearm in a manner which recklessly
places another person in danger of death or serious bodily
injury.

(2) Reckless endangering in the first degree is a
class C felony.
4/
HRS § 134-7 provides, in relevant part:

(b) No person who is under indictment for, or has
waived indictment for, or has been bound over to the circuit
court for, or has been convicted in this State or elsewhere
of having committed a felony, or any crime of violence, or
an illegal sale of any drug shall own, possess, or control
any firearm or ammunition therefor.
. . . .

(h) Any person violating subsection . . . (b) shall be
guilty of a class C felony; provided that any felon
violating subsection (b) shall be guilty of a class B
felony.
5/
HRS § 134-21(a) provides:

(a) It shall be unlawful for a person to knowingly
carry on the person or have within the person's immediate
control or intentionally use or threaten to use a firearm
while engaged in the commission of a separate felony,
whether the firearm was loaded or not, and whether operable
or not; provided that a person shall not be prosecuted under
this subsection when the separate felony is:

(1) A felony offense otherwise defined by this
chapter;
(2) The felony offense of reckless endangering in
the first degree under section 707-713;

(3) The felony offense of terroristic threatening in
the first degree under section 707-716(1)(a),
707-716(1)(b), or 707-716(1)(e); or
(4) The felony offenses of criminal property
damage in the first degree under section
708-820 or criminal property damage in the
second degree under section 708-821 and
(continued...)

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6). The convictions stemmed from an incident on June 23, 2018,
in which Smith shot and killed Thomas Ballesteros, Jr.
(Ballesteros), and shot and injured Nikolaus Jason Slavik
(Slavik), the complaining witness and the only eyewitness (other
than Smith) to the incident.6/
On appeal, Smith contends that the Circuit Court erred
in: (1) prohibiting defense counsel from cross-examining Slavik
about his unrelated arrest on June 20, 2018, his pending felony
charges pertaining to that arrest, and his bail status on
June 23, 2018; (2) preventing defense counsel from calling Tina
Arakaki (Arakaki) as a witness during Smith's case-in-chief to
establish that Slavik and Arakaki conspired together to hide
evidence in order to protect Slavik; (3) preventing defense
counsel from eliciting the hearsay statement of Thomas Spruance
(Spruance) that neither he nor his wife gave Ballesteros or
Slavik permission to pick any fruit from trees on their property;
and (4) admitting Hawai#i County Police Department Detective
Donovan Kohara's (Detective Kohara) testimony that Smith stated
that he had smoked methamphetamine earlier that day prior to the
shooting.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Smith's
contentions as follows.

I. BACKGROUND

A. June 23, 2018 Incident
At trial, Slavik testified in part as follows: On

5/
(...continued)
the firearm is the instrument or means by
which the property damage is caused.
(Brackets omitted.)
6/
Smith was sentenced as follows: (1) on Count 1, life with the
possibility of parole, with a mandatory minimum term of fifteen years of
incarceration; (2) on Count 2, five years, with a mandatory minimum term of
three years, consecutive to Count 1; (3) on Counts 4 and 5, ten years for each
count, concurrent with Counts 1, 2, and 6; and (4) on Count 6, twenty years,
concurrent with the other counts.

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June 23, 2018, he and Ballesteros were picking fruit on the side
of Painted Church Road in Kona, Hawai#i. While picking fruit,
Slavik noticed a motorcycle drive past them four times. After
the fourth pass, the driver, later identified as Smith, parked
the motorcycle, took off his helmet and walked toward Slavik and
Ballesteros. Ballesteros told Slavik that the driver of the
motorcycle was "Brian." When Smith was about ten feet in front
of his bike, he called out to Ballesteros, "Where's my stuff?"
Ballesteros yelled back at Smith, "I left it at your house."
After they exchanged a few more words, Ballesteros dropped his
picker pole and began to walk toward Smith, hands down. Slavik
assumed the two were going to exchange words and argue and fight,
and then noticed Smith pull a gun from behind his back. Slavik
stated: "By that time he was close enough to us[,] trigger was
pulled, uh, point blank [Ballesteros's] temple and he died
instantly. . . . I saw [Smith] pull the trigger point blank and
execute my friend."
Slavik further testified: Smith began to walk away,
then turned around and, with his arm extended, pointed the gun at
Slavik, who was about six inches back. Smith said, "Am I gonna
have a problem with you?" Slavik responded, "Yeah we're gonna
have a problem. You just killed my friend." While facing Smith,
Slavik started stepping backwards and moving toward the street.
Smith followed Slavik's movement, and the two were arguing with
each other. Slavik "saw [Smith's] finger move on the trigger and
[Slavik] lunged, and [they] started wrestling over the gun."
During the struggle, Slavik sustained gun shot wounds to his left
hand, right forearm and right cheek, with Smith pulling the
trigger each time. As Slavik forced the gun down, Smith fired
another shot that hit Smith's left thigh. After Smith was shot,
he let go of the gun and Slavik gained control of it. Slavik
then grabbed the gun and used it to hit Smith several times on
the back of the head. After Smith stopped fighting, Slavik threw
the gun in the bushes "so it'd be out of [Smith's] reach."
At trial, Smith claimed that he acted in self-defense
and did not intend to kill Ballesteros. Smith testified in part
to the following: On June 22, 2018, the day before the incident,

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he learned that Ballesteros had kicked in the door of his
apartment. Smith told his roommate, Leslie Mosier (Mosier), to
call the police.7/ The next morning, right after Smith left his
house and was driving to work, Ballesteros jumped out from behind
a fruit stand and threw a rock that hit Smith's motorcycle and
helmet. Smith finished his first job and arrived home from work
between 2:30 and 3:00 p.m. He saw a truck blocking the driveway
and Ballesteros climbing his neighbor's fence. Smith drove on
and returned about 20 minutes later. He saw that Ballesteros was
still there and was with someone else, whom he later learned was
Slavik. Ballesteros was standing next to his neighbor's fence.
Smith turned his motorcycle around, parked, and walked down to
his toolshed to grab his backpack. The backpack, which Smith
described as a "hunting backpack for shootin' pigs on the
farm[,]" contained a gun. After grabbing his backpack, Smith
started walking up the center of the road toward Ballesteros. He
stopped, opened the backpack and took out his gun. Smith said he
took out the gun "'[c]ause there was two of those guys there and
I know [Ballesteros] is an aggressive guy. . . . He's known to be
violent . . . ." Smith walked over to Ballesteros and started
yelling, "You shouldn't be here. Get outta here," and
Ballesteros yelled "Ef you." Smith also said, "Why you gotta
break into my house and beat up my roommate?" And Ballesteros
said, "That's not all I'm gonna do," and he threw down his
picking pole and charged Smith. Smith testified that he felt

7/
Mosier testified that on June 22, 2018, Ballesteros, who was her
former boyfriend, came into Smith's apartment, physically abused her, and
stole various items, including Smith's "gun that was on the back of the . . .
bed that was just decoration." Smith refers to the gun as a "replica gun" and
the State refers to it as a "toy gun."
Slavik testified that two to three weeks after the shooting, he
discovered the toy gun when he was at his auntie's (Arakaki) house, among
belongings that were recovered from her truck, which Ballesteros and Slavik
traveled in on June 23, 2018. Slavik further testified that he left the toy
gun outside of his auntie's house; he did not immediately tell the police
about it, but the police eventually found it after he told them where to look.
On cross-examination, Slavik denied burying the toy gun under his auntie's
porch, and denied telling the prosecutor's investigators that he had buried
the gun.
Defense counsel called Kari Arguello, one of the prosecution's
investigators, to impeach Slavik's testimony on the latter issue. Arguello
testified that during an interview on April 1, 2019, Slavik told her that he
had buried the replica gun under his auntie's porch.

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scared, and "held up the gun and fired a shot." He stated that
he did not intend to fire the shot at Ballesteros – that "[he]
tried to shoot over his head, but he was too close to me."
Smith testified that after he shot Ballesteros, "I see
Nik Slavik coming at me." He pointed the gun at Slavik and told
him to back up and walk away. Smith started to walk away, heard
something, and turned back to see Slavik right behind him. Smith
said he told Slavik, "What are you doing? Walk away[,]" and
Slavik responded, "You just shot my friend and you pointed the
gun at me." Smith said, "I'm sorry I pointed the gun at you. I
don't know you. He was here to kill me and you're with him.
Just walk away. Just walk away."
Smith testified that he began to walk away again, when
Slavik hit him over the head with something, jumped on him, and
put him in a headlock. According to Smith, Slavik "had his hands
on my hands on the gun, and he twisted the gun around towards me
and he squeezed my hand and the gun went off and the gun went off
again and then he let go." Smith continued: "I tried to get my
trigger out of the finger guard, and he grabbed my hand again and
he shot me in the leg. [sic]" Smith testified that he never
intended to shoot Slavik.

B. Slavik's Pending Criminal Charges and Bail Status
On December 14, 2018, Smith filed "Defendant's Second
Notice of Intent under Rule 404(b) of the Hawai#i Rules of
Evidence [(HRE)]." Smith gave notice that he intended to
introduce evidence at trial concerning, among other things,
Slavik's June 20, 2018 arrest for "possession of methamphetamine,
drug paraphernalia, and a loaded firearm." Smith stated that he
intended to introduce the evidence "to demonstrate the decedent's
motive, knowledge, intent, opportunity, preparation, knowledge,
plan under HRE Rule 404(b) and/or bias under HRE Rule 609.1."
On March 21, 2019, the State filed "State's Motion in
Limine Number Two," which sought, among other things, an order
barring testimony or other evidence relating to Slavik's June 20,
2018 arrest. In opposing the State's motion, Smith presented
evidence that, after Slavik was arrested and charged in State v.
Slavik, No. 3DCW-XX-XXXXXXX, in the District Court of the Third

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Circuit, he was placed on supervised release under an order not
to engage in any criminal activity. Smith argued that he was
seeking to admit at trial evidence of Slavik's arrest and bail
status "to demonstrate that Slavik had a motive to lie about the
events that occurred on June 23, 2019 [sic]," because "[he] knew
that if he were implicated in any wrongdoing, his supervised
release might be revoked, and he would be remanded to custody."8/
On April 2, 2019, prior to the start of trial, the
Circuit Court granted in part and denied in part the State's
Motion in Limine Number Two, granting the motion to exclude
evidence of Slavik's June 20, 2018 arrest,9/ as follows:
[Regarding] the inciden[ts] on June 20th, 2018, . . . at
this time the Court will grant the request to keep that

8/
We also take judicial notice, pursuant to HRE Rule 201, of the
following:
(1) On July 16, 2018, in the District Court of the Third Circuit,
the State filed a "Motion for Discharge as to All Counts" in State v.
Slavik, No. 3DCW-XX-XXXXXXX, "for the reason that this offense has been
charged in the Information in the Circuit Court under Case No. 3CPC-18-
0000548 on July 11, 2018." State v. Slavik, No. 3DCW-XX-XXXXXXX,
Judiciary Information Management System (JIMS) dkt. 13 at 1;

(2) On July 16, 2018, the District Court of the Third Circuit
entered Judgment, discharging all counts in No. 3DCW-XX-XXXXXXX.
Slavik, No. 3DCW-XX-XXXXXXX, JIMS dkt. 15 at 1-2;

(3) On July 11, 2018, the State filed an Information and
Complaint in State v. Slavik, No. 3CPC-XX-XXXXXXX, in the Circuit Court,
charging Slavik with seven counts related to his June 20, 2018 arrest.
State v. Slavik, No. 3CPC-XX-XXXXXXX, JIMS dkt. 1 at 1-8;

(4) On January 3, 2019, following a jury trial, Slavik was found
guilty as to four counts. Slavick, No. 3CPC-XX-XXXXXXX, JIMS dkt. 169
at 1-2;
(5) On April 22, 2019, the Circuit Court entered a Judgment of
Conviction and Sentence, convicting Slavik on four counts, and
sentencing him to imprisonment. Slavick, No. 3CPC-XX-XXXXXXX, JIMS dkt.
222 at 1-3.
9/
On April 22, 2019, the Circuit Court entered the written order
granting in part and denying in part the State's Motion in Limine Number Two.
As relevant here, the order stated:
[Smith] may [e]licit testimony and evidence concerning
Nikolaus Slavik's specific instances of conduct probative of
untruthfulness under HRE rule 608, but may not [e]licit
testimony or evidence relative to Nikolaus Slavik's . . .
prior arrest and/or conviction for possession of
methamphetamine, drug paraphernalia, or a firearm on
June 20, 2018. The Court further finds that testimony or
evidence relative to Nikolaus Slavik's prior arrest and/or
conviction for possession of methamphetamine, drug
paraphernalia, or a firearm on June 20, 2018 is more
prejudicial than probative.

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information out. Unless you can show that the incident was
somehow tied in to the present case. . . .
. . . .

But standing alone is what the Court has been informed
regarding the prior incident, June 20th, as under [HRE Rule]
404, . . .; Court would not allow under 404. Or in that the
prejudicial effect is not outweighed by the probative.

At trial, on the day Slavik was to testify on behalf of
the State, Smith again argued to the Court that Slavik's arrest
and bail status at the time of the shooting gave him a motive to
lie or to "slant his . . . statements to police[:]"
[DEFENSE COUNSEL]: And, Your Honor, I just wanted to
touch up on the 609.1. So [Slavik] was arrested three days
prior, and I think the Court had said I can't get into that
under 404(b). But the Court didn't rule on the 609.1 that
he had a -- and I'm arguing that he had a motive to lie at
the time or slant his, uh, statements to police, um, because
--
THE COURT: The 60 --

[DEFENSE COUNSEL]: -- he's on bail status.
THE COURT: Your 609 would deal regarding interest or
bias, but unless you can establish, uh, foundation as to
relevance, et cetera, then the Court will make a ruling at
that time.

During Smith's cross-examination of Slavik, defense
counsel attempted to question him about the charges that were
pending against him during the police investigation of the
shooting:
Q. (By [DEFENSE COUNSEL]): Isn't it true, Mr.
Slavik, that you hid that replica gun because at the time
you believed had the police found it that you would come
under suspicion for this incident?
A. No, I would not.
Q. And you hid that gun at the time because you
believe -- because you were facing your own charges. Is
that correct?
[DEPUTY PROSECUTING ATTORNEY (DPA)]: Objection.
A. No.

THE COURT: Sustained.
[DPA]: Move to strike.

THE COURT: Stricken and not -- jury will
disregard the last comment.

A bench conference ensued, as follows:
[DEFENSE COUNSEL]: Your Honor, that he was out on

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bail is directly relevant to his interest or motive.
THE COURT: All right. Where he pulled on that, made
the motions in limine, and the Court’s order was that you
were not gonna bring this up unless you can establish other
types of foundation so I don't see that right now.

II. DISCUSSION
Smith first asserts that the Circuit Court erred in
precluding the defense from cross-examining Slavik regarding his
arrest, pending felony charges, and bail status on June 23, 2018
in an unrelated case, for purposes of showing bias, interest, and
motive to testify falsely. Smith argues:
That Slavik was out on bail at the time this incident
occurred gave him a motive to immediately slant his account
of the events to make him appear more favorable to the
investigating officers and, ultimately, the jury. Had he
come under suspicion himself, his bail status may have been
jeopardized.

Smith contends that the court's limitation on his cross-
examination of Slavik violated Smith's rights under article I,
section 14 of the Hawai#i Constitution and HRE Rule 609.1.
Article I, section 14 of the Hawai#i Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
the accused[.]" See State v. Brown, 145 Hawai#i 56, 61, 446 P.3d
973, 978 (2019); State v. Balisbisana, 83 Hawai#i 109, 115 n.3,
924 P.2d 1215, 1221 n.3 (1996); see also U.S. Const. amend. VI.
"[T]he main and essential purpose of confrontation is to secure
for the opponent the opportunity of cross-examination, . . . and
the exposure of a witness' motivation in testifying is a proper
and important function of the constitutionally protected right of
cross examination." State v. Acacio, 140 Hawai#i 92, 99, 398
P.3d 681, 688 (2017) (original brackets omitted) (quoting
Balisbisana, 83 Hawai#i at 115, 924 P.2d 1215, 1221) (applying
the sixth amendment to the United States Constitution).
Accordingly:
[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited
from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of
bias on the part of the witness, and thereby "to
expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the
reliability of the witness."

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Brown, 145 Hawai#i at 61, 446 P.3d at 978 (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 680 (1986)).
Under HRE Rule 609.1, "[t]he credibility of a witness
may be attacked by evidence of bias, interest, or motive." HRE
Rule 609.1. The supreme court has stated that "bias, interest,
or motive is always relevant under HRE Rule 609.1." Acacio, 140
Hawai#i at 99, 398 P.3d at 688 (quoting State v. Levell, 128
Hawai#i 34, 40, 282 P.3d 576, 582 (2012)). "[T]he appropriate
inquiry 'is whether the trier of fact had sufficient information
from which to make an informed appraisal of the complaining
witness's motives and bias."10/ Id. (original brackets omitted)
(quoting Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222).
Morever, the Hawai#i Supreme Court and this court have
held that a complaining witness can be cross-examined about
pending criminal charges for purposes of showing motive or bias.
See Brown, 145 Hawai#i at 61-62, 446 P.3d at 978-79 (holding that
the trial court erred in barring cross-examination as to
complaining witness's pending charges arising from the same
incident, and her supervised probation status resulting from a
previous assault conviction); Balisbisana, 83 Hawai#i at 116-17,
924 P.2d at 1222-23 (holding that the trial court erred in
precluding cross-examination regarding complaining witness's
conviction for harassing defendant because, absent such evidence,
the jury lacked information necessary to appraise witness's bias
against defendant and motive to fabricate charges against him);
State v. Sabog, 108 Hawai#i 102, 112, 117 P.3d 834, 844 (App.
2005) (holding that a complaining witness's pending sentencing in
two other criminal matters "was relevant and probative of a
potential bias or motive for testifying in favor of the State").
Similarly, the United States Supreme Court has held that a
defendant may question a prosecution witness about the witness's
pending probation status to explore the possible biases,
prejudices, or motives of the witness. Davis v. Alaska, 415 U.S.

10/
Once this first step has been satisfied, "the trial court may then
consider whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice." Acacio, 140 Hawai #i at 99, 398
P.3d at 688. However, "the second step is not triggered until the defendant
is afforded the threshold level of inquiry under the confrontation clause[.]"
Id.

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308, 316-18 (1974).
Here, the Circuit Court precluded Smith from
cross-examining Slavik about Slavik's pending criminal charges
and bail status on June 23, 2018, because it apparently concluded
that Smith had not established a "foundation as to relevance" or
"other types of foundation." However, "bias, interest, or motive
is always relevant under HRE Rule 609.1," Acacio, 140 Hawai#i at
99, 398 P.3d at 688, and, here, Smith was attempting to establish
that Slavik's arrest and bail status at the time of the alleged
murder gave him a motive to lie or to slant his statements to
police investigators. The Circuit Court prevented Smith from
laying that foundation at trial, when it precluded defense
counsel from cross-examining Slavik about this alleged source of
bias. See HRE Rule 609.1 cmt. ("before any bias of a witness can
be introduced, a foundation must first be laid by cross-examining
the witness regarding the facts which assertedly prove the
bias"); see also Acacio, 140 Hawai#i at 101, 398 P.3d at 690
("[G]iving a defendant 'considerable latitude' during cross-
examination of the complaining witness is not sufficient if the
defendant is deprived of an opportunity to present evidence about
the source of the complaining witness's potential bias or
motive." (citing Levell, 128 Hawai#i 41, 282 P.3d 583)). Under
these circumstances, information about Slavik's arrest and bail
status at the time of the shooting incident could have served as
a basis for the jury to conclude that Slavik had a bias, interest
or motive to lie to the police – and thus, ultimately, to the
jury – pursuant to HRE Rule 609.1. See Brown, 145 Hawai#i at 62,
446 P.3d at 979 ("[e]xclusion of the criminal charges against
[the complaining witness] and the fact that [she] was on
probation deprived the jury of evidence that she had an interest
to shape her testimony against [the defendant] to avoid
punishment and to prevent the possible revocation of her
probation"). Because the Circuit Court precluded such
cross-examination, the jury did not have "sufficient information
from which to make an informed appraisal of the witness's motives

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and bias."11/ Acacio, 140 Hawai#i at 99, 398 P.3d at 688 (quoting
Levell, 128 Hawai#i at 40, 282 P.3d at 582). Accordingly, we
conclude that the Circuit Court erred in preventing Smith from
cross-examining Slavik about his pending criminal charges and
bail status on June 23, 2018.
We must next determine whether the Circuit Court's
error was harmless beyond a reasonable doubt. See Acacio, 140
Hawai#i at 102, 398 P.3d at 691 ("Denial of a defendant's
constitutionally protected opportunity to impeach a witness for
bias, motive or interest is subject to harmless error analysis."
(quoting Balisbisana, 83 Hawai#i at 117, 924 P.2d at 1223)). "In
applying the harmless beyond a reasonable doubt standard[,] the
court is required to examine the record and determine whether
there is a reasonable possibility that the error complained of
might have contributed to the conviction." Id. (quoting State v.
Pond, 118 Hawai#i 452, 461, 193 P.3d 368, 377 (2008)); see Brown,
145 Hawai#i at 63, 446 P.3d at 980 ("the ultimate question is
whether the erroneous exclusion of additional evidence could have
reasonably affected the jury’s verdict"). We "consider[ ] a
number of factors in determining whether an error is harmless in
this context, including 'the importance of the witness' testimony
in the prosecution's case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution's case.'"
Acacio,140 Hawai#i at 102, 398 P.3d at 691 (quoting Levell, 128
Hawai#i at 42, 282 P.3d at 584).
In Brown, for example, the supreme court concluded that
the circuit court's error in precluding cross-examination of the
complaining witness regarding her motives or bias favoring the
prosecution might have contributed to the defendant's conviction.
145 Hawai#i at 62-63, 446 P.3d at 979-80. There, the complaining
witness was the only eyewitness to the entire event that gave

11/
Moreover, because Smith was not afforded this threshold level of
inquiry under the confrontation clause, the Circuit Court's discretion to
exclude evidence under HRE Rule 403 was not operative. Acacio, 140 Hawai #i at
99, 398 P.3d at 688 (quoting Levell, 128 Hawai #i at 40, 282 P.3d at 582).

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rise to assault charges against the defendant; two additional
eyewitnesses testified that they did not witness the complete
incident. Id. Thus, the complaining witness was "the most
important witness for the prosecution." Id. at 62, 446 P.3d at
979. But the defendant was not permitted to cross-examine the
complaining witness about criminal charges she faced arising from
the same incident, as well as her probation status resulting from
an earlier assault conviction, which "possibly gave the State
leverage over her testimony." Id. at 62, 446 P.3d at 979. In
addition, the defendant offered testimony that directly
contradicted the complaining witness's testimony. Id. In such
circumstances, the court reasoned that "[e]vidence that cast
doubt on [the complaining witness's] credibility may have
affected the jury's conclusion as to her description of the
events." Id. at 63, 446 P.3d at 980. Accordingly, the court
ruled that it could not conclude beyond a reasonable doubt that
the erroneous decision to exclude evidence of the complaining
witness's interest in avoiding future criminal prosecution and
punishment did not contribute to the defendant's conviction. Id.
Likewise, in Acacio, the supreme court ruled there was
"a reasonable possibility that the circuit court's error [in
precluding cross-examination of the complaining witness regarding
her motives and bias] might have contributed to [the defendant's]
conviction." 140 Hawai#i at 102, 398 P.3d at 691. The court
reasoned that the complaining witness's testimony "was crucial to
the prosecution's case because she was the only eyewitness
to [the defendant's] alleged threat and abuse against her." Id.
The court also noted that the case turned on the credibility of
the defendant and the complaining witness, such that "evidence of
the [complaining witness's] motive to exaggerate or fabricate her
story would have been helpful for the jurors in assessing the
[complaining witness's] credibility and in ultimately determining
which party to believe." Id. at 103, 398 P.3d at 692.
Similarly, here, there is a reasonable possibility that
the Circuit Court's error contributed to Smith's convictions on
Count 1, Murder in the Second Degree; Count 2, Reckless
Endangering in the First Degree; and Count 6, Carrying or Use of

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Firearm in the Commission of a Separate Felony. On these counts,
Slavik's testimony was crucial to the prosecution's case because
he was the only eyewitness to the shooting incident, including
the alleged murder and his own shooting. In addition, Smith
offered testimony regarding the incident that directly
contradicted Slavik's testimony. The case as to these counts
thus turned primarily on the credibility of Smith and Slavik. In
these circumstances, as in Brown, evidence that cast doubt on
Slavik's credibility may have affected the jury's conclusion as
to his description of the events. And while the Circuit Court
allowed defense counsel to impeach Slavik as to whether he buried
the replica gun, the court did not permit any cross-examination
regarding the criminal charges that Slavik faced and his bail
status at the time of the shooting incident, which arguably could
have influenced his statements to police investigators. See
supra. No other evidence conveyed this degree of Slavik's
possible interest in falsifying or slanting his statements to the
police – and, ultimately, to the jury. On this record, we cannot
conclude beyond a reasonable doubt that the Circuit Court's error
in precluding cross-examination of Slavik about his pending
criminal charges and bail status on June 23, 2018, did not
contribute to the convictions on Counts 1, 2 and 6. Accordingly,
as to these counts, the error was not harmless beyond a
reasonable doubt.
We conclude, however, that there is no reasonable
possibility that the Circuit Court's error contributed to Smith's
convictions on Count 4, Ownership or Possession Prohibited
(operable firearm), and Count 5, Ownership or Possession
Prohibited (ammunition). Under HRS § 134-7(b), no person who has
been convicted of having committed a felony, "shall own, possess,
or control any firearm or ammunition therefor." Here, prior to
trial, Smith stipulated with the State that he "had previously
been convicted of a felony offense, and he knew he had been
convicted of a felony." At trial, the Court informed the jury of
this stipulation, and instructed the jury that it "must
conclusively . . . accept as proof what the parties stipulated
to." In addition, Smith admitted in his own testimony that he

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possessed the firearm that he brought to Painted Church Road on
June 23, 2018, and that it was loaded with ammunition. The
elements of Counts 4 and 5 were therefore established by
independent evidence unrelated to Slavik's testimony, and Smith
has shown no prejudice from Slavik's testimony as to those
counts. On this record, we conclude that the Circuit Court's
error in precluding cross-examination of Slavik about his pending
criminal charges and bail status on June 23, 2018, was harmless
beyond a reasonable doubt as to Counts 4 and 5.
Given our conclusion with respect to Counts 1, 2 and 6,
we do not reach Smith's remaining points of error as to those
counts. With respect to Counts 4 and 5, Smith has demonstrated
no prejudice from any alleged error by the Circuit Court in
preventing defense counsel from calling Arakaki as a witness,
preventing defense counsel from eliciting the hearsay statement
of Spruance, or admitting Detective Kohara's testimony regarding
Smith's statement that he had used methamphetamine. On this
record, we conclude there is no reasonable possibility that any
of these alleged errors contributed to Smith's convictions on
Counts 4 and 5. As previously stated, the elements of these
offenses were established through independent proof, which was
unrelated to the proffered testimony of Arakaki or Spruance or to
the allegedly objectionable testimony of Detective Kohara.
Accordingly, even if one or more of these alleged errors
occurred, which we do not decide, each was harmless beyond a
reasonable doubt as to Counts 4 and 5.

III. CONCLUSION

For these reasons, the Judgment of Conviction and
Sentence entered on June 26, 2019, in the Circuit Court of the
Third Circuit, is:
(1) vacated as to Count 1, Murder in the Second Degree;
Count 2, Reckless Endangering in the First Degree; and
Count 6, Carrying or Use of Firearm in the Commission
of a Separate Felony; and
(2) affirmed as to Count 4, Ownership or Possession
Prohibited (operable firearm); and Count 5, Ownership

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or Possession Prohibited (ammunition).
The case is remanded to the Circuit Court for further proceedings
consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, August 31, 2020.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Jason R. Kwiat
(Schlueter, Kwiat & Kennedy, LLLP
for Defendant-Appellant /s/ Derrick H.M. Chan
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney,
County of Hawai#i, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee Associate Judge

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