LAM!UBHAHY
NOT FOR PUBLICATION IAN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
_ NO. 28343
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFI
STATE oF HAWAI‘I, Plaintiff-Appelle'e,
v.
MARK CHAR, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 03-1-2555)
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Leonard, and Ginoza, JJ.)
(Char) was convicted
Defendant-Appellant Mark Char
after a jury trial of negligent injury in the first degree, in
violation of Hawaii Revised Statutes (HRS) § 707-705 (1993).V
He was sentenced by the Circuit Court of the First Circuit
Char appeals from
(circuit court)W to three years of probation.
the circuit court's "Judgment of Conviction and Probation
Sentence"
in refusing to permit him to cross-examine Gabriel Aio, Jr.,
(Aio), the prosecution's crucial eye-witness, with evidence
proffered by Char regarding Aio's bias and motive to favor the
prosecution; and 2) Char did not voluntarily, knowingly, and
(Judgment).
On appeal, Char argues that l) the circuit court erred
intelligently waive his right to testify.W
We conclude that the circuit court erred in precluding
Char from cross-examining Aio with the proffered evidence
V HRS § 707-705 states in relevant part:
(1) A person is guilty of the offense of negligent injury in
the first degree if that person causes serious bodily injury to
another person by the operation of a motor vehicle in a negligent
manner.
” The Honorable Karl K. Sakamoto presided.
We construe Char's contention that the circuit court erred in denying
y
his motion for new trial on these grounds as encompassing the underlying
claims that the circuit court erred in precluding Char from cross-examining
Aio with the proffered evidence regarding bias and motive and that Char did
not validly waive his right to testify.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
regarding Aio's bias and motive to favor the prosecution.
Accordingly, we vacate Char's conviction and remand the case for
a new trial, In light of our decision, we need not address
Char's claim that he did not validly waive his right to testify.
I.
The record indicates the following. Prior to trial,
Char filed "Defendant's Motion For Preliminary Ruling on
Permissible Cross-Examination of Motive and Bias of Gabriel Aio,
Jr." Char proffered that Aio had criminal charges pending
against him in the circuit court at the time Aio allegedly
witnessed the motor vehicle accident (the accident) that formed
the basis for Char's prosecution; that Aio did not immediately
stop at the scene of the accident but drove on another mile
before turning around; that Aio pleaded no contest to first
degree terroristic threatening, a felony, and was found
"guilty"9 of second degree unlawful imprisonment, both charges
for which he was granted a deferred acceptance of no contest
plea; and that Aio told a defense investigator that the charges
pending against him were "heavy on his mind" at the time he saw
the accident. Char asserted that he wanted to cross-examine Aio
about Aio's criminal charges to show Aio's possible motive and
bias and that Aio viewed the accident "as an opportunity to help
[Aio's] unfortunate situation." The circuit court denied Char's
motion.
The record further indicates the following sequence of
events regarding the interplay between Aio's cooperation with the
police and prosecution and the resolution of Aio's criminal
charges. About two months prior to the accident, Aio was charged
by complaint in the circuit court with the felony offense of
first degree terrorristic threatening and two misdemeanor
offenses of first degree unlawful imprisonment and abuse of a
family or household member. After allegedly witnessing the
i/ The exhibits attached to Char's motion reflect that Aio pleaded no
contest to the unlawful imprisonment charge.
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accident, Aio drove past the scene but turned around at a
7-Eleven store, where there was also a police substation,
returned to the scene, and on the same day gave a statement to
the police. About a month after the accident, Char was charged
with attempted murder, and Aio testified at Char's preliminary
hearing.W About two months after the accident, Aio pleaded no
contest to second degree unlawful imprisonment, and about three
months after the accident, Aio pleaded no contest to first degree
terrorristic threatening. ‘
About eight months after the accident, Aio was
sentenced and his motion for deferred acceptance of no contest
plea was granted. The circuit court imposed a deferral period of
five years for the first degree terroristic threatening charge
and a concurrent one-year deferral period for the unlawful
imprisonment charge. About two weeks after Aio was sentenced, he
testified before the grand jury, apparently in support of the
indictment for first degree negligent injury returned against
Char. About a year after testifying in the grand jury, Aio
testified as a prosecution witness at Char's trial. When Aio
testified at trial, he was still subject to the five-year
deferral period imposed on his deferred acceptance of no contest
plea on the first degree terroristic threatening charge. Aio's
criminal case was handled by the same prosecutor's office and was
brought in the same circuit court as Char's criminal case.
II.
Under Hawaii Rules of Evidence (HRE) Rule 609.l(a)
(1993), "[t]he credibility of a witness may be attacked by
evidence of bias, interest or motive." In State v. Estrada, 69
HaW. 204, 220, 738 P.2d 8l2, 823 (l987), the HawaFi Supreme
Court stated that "[b]ias, interest, or motive is always relevant
under HRE Rule 609.1."
Aio had criminal charges pending against him at the
time he first made a statement to the police regarding the
5/ The attempted murder charge was subsequently dismissed.
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accident; Aio pleaded no contest and was sentenced while
cooperating with the prosecution and testifying in pretrial
proceedings in Char's criminal case; and Aio was still subject to
his deferral period when he testified for the prosecution at
Char's trial. Aio was the prosecution's key witness. He was the
only witness who testified to having an unobstructed view and a
recollection of how the accident happened, and the prosecution
accordingly relied upon Aio's testimony to prove that Char had
operated his truck in a negligent manner in causing serious
bodily injury to a motorcycle rider. Thus, Aio's credibility was
crucial to the outcome of the trial.
Under the particular circumstances of this case, we
conclude that the circuit court erred in precluding Char from
cross-examining Aio about Aio's criminal charges to show Aio's
bias and motive to favor the prosecution. See State v. Saboq,
108 Hawai‘i lO2, 111-l2, 117 P.3d 834, 843-44 (App. 2005); DaViS
v. Alaska, 415 U.S. 308, 315-20 (1974); State v. Balisbisana, 83
Hawai‘i lO9, ll3-l7, 924 P.2d 12l5, 1219-23 (1996); HRE Rules
401, 402, and 403 (l993). we further conclude that the circuit
court's error in precluding such cross-examination was not
harmless beyond a reasonable doubt.
III.
For the foregoing reasons, we vacate the circuit
court's Judgment that was entered on December 6, 2006, and we
remand the case for a new trial and for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, HawaFi, July 30, 2010.
On the briefs:
Shawn A. Luiz
for Defendant-Appellant
Donn Fudo
Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee