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Electronically Filed
Supreme Court
SCWC-29390
11-MAY-2012
10:39 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
_________________________________________________________________
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee
vs.
LESS ALLEN SCHNABEL, Petitioner/Defendant-Appellant
_________________________________________________________________
NO. SCWC-29390
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29390; CR. NO. 07-1-0863)
May 11, 2012
ACOBA, DUFFY, AND MCKENNA, JJ.; AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold first, that, Hawai#i Revised Statutes (HRS) §
571-84(h) clearly and unambiguously prohibits the use of evidence
from juvenile proceedings in any adult criminal case for any
purpose whatsoever. Accordingly, the Intermediate Court of
Appeals (ICA) gravely erred in affirming the ruling of the
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circuit court of the first circuit (the court), that
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) would
be allowed to introduce evidence from the prior juvenile
proceedings of Petitioner/Defendant-Appellant Less Allen
Schnabel, Jr. (Petitioner), if Petitioner testified on cross-
examination in the instant case that he did not know a single
punch could cause the death of a person, State v. Schnabel, No.
29390, 2010 WL 4546655, at *2-3 (App. Nov. 12, 2010) (mem.).
Secondly, we hold that the statement of the Deputy Prosecuting
Attorney (DPA) to the jury during closing arguments not to “get
too caught up in the mumbo jumbo of all the words [of the jury
instructions,]” among other statements, infringed on Petitioner’s
right to have the case against him proven beyond a reasonable
doubt. Accordingly, the December 15, 2010 judgment of the ICA,
filed pursuant to its November 12, 2010 Memorandum Opinion (memo
op.),1 affirming the court’s September 10, 2008 judgment of
conviction and sentence, is vacated. This case is remanded for
proceedings consistent with this opinion.2 Each of the aforesaid
1
The memo op. was filed by presiding Judge Alexa D.M. Fujise and
Associate Judges Lawrence M. Reifurth and Lisa M. Ginoza.
2
We find no error in the other points raised by Petitioner and
affirm the ICA’s opinion insofar as it held that (1) trial counsel was not
ineffective for failing to subpoena the physician who had attended to
Christopher Reuther prior to his death and who had signed the death
certificate, Schnabel, 2010 WL 4546655, at *3, (2) the DPA did not engage in
prosecutorial misconduct in displaying a power point slide during closing
arguments which stated, “Is there a substantial and unjustifiable risk of
death from one punch? . . . Ask [Reuther] if it’s substantial and unjustified.
He’s dead!”, id. at *3-4, (3) there was sufficient evidence to sustain
(continued...)
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errors, standing alone, provides an ample basis for vacation.
However, in order to avoid similar errors from being made on
remand, both errors are addressed.
I.
The following essential matters are from the record and
the submissions of the parties.
A.
On April 22, 2007, at Zablan Beach Park in Nanakuli,
Hawai#i, Petitioner allegedly caused the death of Christopher
Reuther (decedent) by one punch. Id. at *1. Respondent’s
witnesses testified that they met decedent at the park, began
conversing with him, and eventually invited him to camp with them
overnight. At some point decedent left the group, against their
warning not to do so, and headed toward the restrooms. According
to Respondent’s witnesses, as decedent was walking to his car,
Petitioner approached him from behind and hit him in the face.
Immediately thereafter, decedent “spun out” in a “half-circle” or
“jump[ed] around” before collapsing to the ground. Respondent’s
witnesses testified that Petitioner’s actions were unprovoked.
The defense’s witness, Kristie Reverio (Reverio),
testified that decedent was walking towards the parking lot and
2
(...continued)
Petitioner’s conviction notwithstanding Petitioner’s asserted claim of self-
defense, id. at *5-6, and (4) there was sufficient evidence that Petitioner
recklessly caused Reuther’s death, id. at *6-7.
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taking photographs near where she and Petitioner were standing.
Petitioner confronted decedent and asked him if he was taking
pictures of them. Decedent responded that he had only taken a
picture of the stop sign. Reverio and Petitioner thought
decedent was being “sarcastic” and asked to see his camera’s
viewfinder. Decedent held out the camera for them, but then
pulled it back and began walking towards his car with a “smirk”
on his face. Petitioner told decedent, “[Y]ou cannot be doing
things like that over here, you need to leave.”
Decedent then approached Petitioner and stated, “[Y]ou
cannot tell me what to do,” while in a “fighting stance.”
Reverio thought Petitioner and Decedent “were going to fight.”
At that moment, Petitioner punched Decedent on his right cheek.
Decedent then fell backward, stood back up, staggered forward,
and fell down.
B.
On May 8, 2007, Petitioner was charged with (1)
Manslaughter, Hawai#i Revised Statutes (HRS) § 707-702(1)(a)
(Supp. 2007)3 and (2) Unauthorized Entry into a Motor Vehicle in
3
HRS § 707-702(1)(a) provides that “[a] person commits the offense
of manslaughter if . . . [t]he person recklessly causes the death of another
person[.]”
HRS § 702-206 (1993) provides in part that “[a] person acts
recklessly with respect to his conduct when he consciously disregards a
substantial and unjustifiable risk that the person’s conduct is of the
specified nature.”
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the First Degree, HRS § 708-836.5 (Supp. 2007).4 Prior to trial,
Respondent filed a Notice of Intention to Use Specified Evidence
(Notice) indicating that, at trial, it would seek to introduce
the following evidence relating to Petitioner’s juvenile
proceedings: (1) on September 1, 2002, Petitioner attended a
party at Nanakuli Beach Park and as complainant attempted to
“shake [Petitioner’s] hand, [complainant] was suddenly punched on
the left side of his face[,] causing [him] to fall to the ground
where he was thereafter kicked in the face several times[,]”5 (2)
Petitioner was “present at his entire trial[,]” and (3) Dr. Jorge
Camara (Dr. Camara) testified “that an orbital fracture . . . can
cause not only a rupture of the bone socket[,]” but could also
cause a “subdural hematoma in the brain[,]” which “could then
create a ‘substantial risk of death.’” Respondent attached a
transcript of Dr. Camara’s testimony given at Petitioner’s
juvenile proceedings as an exhibit to its Memorandum in support
of the Notice. According to Respondent, the aforementioned
4
HRS § 708-836.5, entitled “Unauthorized entry into motor vehicle
in the first degree,” states, in relevant part:
(1) 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.
5
Although Respondent stated that it intended to use at trial the
“evidence” from Dr. Camara that complainant was “kicked in the face several
times[,]” in fact Dr. Camara testified that he did not know exactly where
complainant was kicked, but that complainant was punched in the eye.
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evidence was admissible to show that Petitioner “was on notice
that similar acts in the future could cause much more serious
injuries[.]”
The defense filed a motion in limine to preclude
Respondent from introducing Dr. Camara’s testimony pursuant to
Hawai#i Rules of Evidence (HRE) Rules 402 (2010)6 and 403 (1993).7
At the hearing on the motion, Respondent argued that evidence
from the juvenile proceedings was relevant to Petitioner’s
“knowledge” that his conduct, i.e., a single punch, could cause a
substantial risk of death. The defense argued that the injuries
involved in the juvenile proceedings were “not the same type of
injury” as the one in this case because the juvenile case
involved “punches and kicks” which were “likely to be much more
damaging than a punch.” Defense counsel additionally noted that
Dr. Camara did not testify that those acts “would cause[,]” but
“could cause,” bleeding in the brain. Finally, it was argued by
the defense that at the time of the juvenile proceedings,
Petitioner was seventeen years old and “in a traumatic situation
where we hope he was paying attention but well may not have
been.”
6
HRE Rule 402 states in relevant part that “[e]vidence which is not
relevant is not admissible.”
7
HRE Rule 403 states that, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
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After taking the matter under advisement, the court
initially ruled that Respondent could not introduce any evidence
relating to Petitioner’s juvenile proceedings.8 Subsequently,
however, during further pre-trial proceedings, Respondent moved
the court to reconsider its ruling. Respondent also asked the
court, in the alternative, “to at least allow [Respondent] to--if
[Petitioner] . . . takes the stand and is cross-examined[,] to
make reference to the fact[.]”9 The court answered that
reconsideration was “not going to happen,” but considered “what
[might] happen[] if [Petitioner] takes the stand and he says he
was completely unaware, totally unaware, hit somebody in the
8
The court ruled as follows:
[T]his court finds that both the breadth and depth and
intensity of the emotions around this case were other than
what the court initially thought they would be. Therefore,
I’m going to deny this prior incident completely. The only
option would be [Respondent would] have to approach the
court. [The court would] have to hear what [Petitioner] had
to say, if anything, then measure it at that point, but
basically it’s not coming in at all. I’m not going to bet
against myself so to speak or anticipate. . . . I understand
that it’s relevant under [HRE Rule] 404 . . . but [HRE Rule
403] has caused me to reconsider. . . . [T]he way the
jurors responded and my take was . . . way more emotion than
I thought . . . it would be with the jurors. . . . It’s a
mainland visitor; it’s Nanakuli; it’s a law student; they
donated the organs and he apparently allegedly did nothing
to provoke it, but we all gotta hear the story . . . when it
actually comes out, so it’s not coming in. No if [sic], and
[sic] or buts[.]”
(Emphasis added.)
9
It would appear Respondent was referring to the “fact” that
Petitioner was present during his juvenile proceedings and heard Dr. Camara’s
testimony.
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head, that they [sic] might cause them [sic] serious injury or
death.”
Defense counsel stated that if the court allowed
Respondent to ask Petitioner whether he knew a single punch
“could,” as opposed to “would,” cause death, Petitioner’s “answer
will be ‘no.’” Defense counsel related that even if he did
respond in that manner, evidence of Dr. Camara’s testimony would
not be “sufficient to prove that [Petitioner] did know
differently” since Dr. Camara’s testimony was about “a punch and
kicks” which, when “combined[,] could cause subdural hematoma
[which] could cause death[.]” Defense counsel further asserted
that the evidence would “mislead the jury,” “distract [it] from
trying this case[,]” and would “be highly prejudicial[.]”
The court then expressed its concern that “most of the
men on the jury -- . . . -- understand that a large man that
punches another man could kill him.” Thus, the court responded
that, if Respondent laid a foundation regarding Petitioner’s
height and weight on the date of the incident and argued that the
punch “was a sucker punch or a false crack[,] . . . and
[Petitioner] says no way” a punch can cause the death of a
person, its “inclination [would be] to give [Respondent] some
latitude over [the defense’s] strong objection[.]”
C.
In addition to the testimony described supra, the chief
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medical examiner for the City and County of Honolulu (medical
examiner) also testified. The medical examiner related that
based on the information provided by the hospital and from the
investigator who read the hospital reports, the cause of death
was believed to be an aneurysm. She recounted, however, that
because there was a “small tear” in decedent’s “basilar artery”
and a bruise behind his ear consistent with a “fist blow,” it was
her opinion that decedent died as a result of a “traumatic
subarachnoid hemorrhage” caused by an “assaultive blunt force
injury to the head.” The medical examiner observed that while
“you see subarachnoid hemorrhage, non-trauma related[,]” trauma-
related subarachnoid hemorrhage is “not very common.” In her
opinion, decedent’s injury was “unique.”
As to the difference between the medical examiner’s
conclusion regarding the cause of death and the conclusion of the
hospital, she stated, “I think at that point[,] all [the hospital
doctors] knew from their scans was that [decedent] had []
bleeding in the subarachnoid space, which means covering the
brain[.]” She explained that the hospital would not have seen
the tear “because there was no time for them to inject dye in
the[] blood vessels[,] . . . [b]ut at the autopsy, [she] injected
dye.” The medical examiner stated that she “did not see any
aneurysms as the doctors suspected, but instead saw [a] tear[.]”
In her view, “you never see an aneurysm right [t]here [where the
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tear was located; y]ou see aneurysms in different areas, but what
I saw was a fresh, tiny torn area.”
Petitioner did not testify. After the prosecution
rested, the court permitted defense counsel to state on the
record that Petitioner had decided not to testify based in part
on the fact that Respondent would be allowed to introduce Dr.
Camara’s testimony from Petitioner’s juvenile proceedings if
Petitioner testified that he did not know a single punch could
cause the death of a person. The court stated,
And [] the reasons stated by you . . . I think are pretty
accurate, that we started picking jury [sic], I was going to
let in the so-called prior with a limiting instruction. It
became clear to me that the gravity was going to keep us
from getting a jury and the jury read it differently than I
did, and so the Court decided to keep that out and not allow
it. The Court decided that [if] the door was opened, it
would give a very limiting instruction there, but allow
[Respondent] to get into the earlier situation.
(Emphases added.)
D.
On July 7, 2008, the court instructed the jury, among
other things, as to the presumption of innocence and proof beyond
a reasonable doubt.10 On the same day, during closing argument,
10
The court gave the jury the standard instruction as follows:
You must presume the defendant is innocent of the
charges against him. This presumption remains with the
defendant through the trial of the case, unless and until
the prosecution proves the defendant guilty beyond a
reasonable doubt.
The presumption of innocence is not a mere slogan but
an essential part of the law that is binding upon you. It
places upon the prosecution the duty of proving every
material element of the offense charged against the
(continued...)
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the DPA stated,
And when you go in the deliberation room, read the[ jury]
instructions but use your common sense. That’s what this is
all about. It’s all about common sense. Don’t get too
caught up in the mumbo jumbo of all the words but use your
common sense. . . . [D]ig deep down inside and ask
yourself, deep down inside, you know, the gut feeling we
talk about deep down inside. Put aside those words. You’ve
heard them. You’re analyzing them. And then you reach down
deep inside, deep down inside: Is he guilty? And if you
can say that, that’s your common sense.
(Emphases added.) The defense immediately objected. The court
held a bench conference during which defense counsel argued that
10
(...continued)
defendant beyond a reasonable doubt.
You must not find the defendant guilty upon mere
suspicion or upon evidence which only shows that the
defendant is probably guilty. What the law requires before
the defendant can be found guilty is not suspicion, nor
probabilities, but proof of the defendant’s guilt beyond a
reasonable doubt.
What is reasonable doubt?
It is a doubt in your mind about the defendant’s guilt
which arises from the evidence presented or from the lack of
evidence and which is based upon reason and common sense.
Each of you must decide, individually, whether there is or
is not such a doubt in your mind after careful and impartial
consideration of the evidence.
Be mindful, however, that a doubt which has no basis
in the evidence presented, or the lack of evidence, or
reasonable inferences therefrom, or a doubt which is based
upon imagination, suspicion or mere speculation or guesswork
is not a reasonable doubt.
What is proof beyond a reasonable doubt?
If, after consideration of the evidence and the law,
you have a reasonable doubt of the defendant’s guilt, then
the prosecution has not proved the defendant’s guilt beyond
a reasonable doubt and it is your duty to find the defendant
not guilty.
If, after consideration of the evidence and the law,
you do not have a reasonable doubt of the defendant’s guilt,
then the prosecution has proved the defendant’s guilt beyond
a reasonable doubt and it is your duty to find the defendant
guilty.
(Emphasis added.)
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the jury was not permitted to decide whether Petitioner was
guilty “on their gut.” Defense counsel stated, “It’s whether
[Respondent] has proven beyond a reasonable doubt that
[Petitioner]’s guilty that they have to answer. To say otherwise
implies that if you have a gut feeling he’s guilty, he’s just
guilty, forget the instructions.”
The DPA responded that “[t]he argument is that the
feeling inside is your common sense speaking to you. Common
sense is what supports all of their decisions in applying the law
and determining what the facts are.” The court overruled the
defense’s objection, but gave the following instruction to the
jury:
Ladies and gentlemen of the jury, I give attorneys some
latitude at closing. The instructions you have as to what
reasonable doubt is and isn’t and that pity, passion and
prejudice have no play, I’ll allow you to argue that
basically as an illustration of your take on common sense.
There’s no definition of common sense so I’ll give you a
little bit of latitude over objection.
(Emphasis added.)
Two days later, on July 9, 2008, the court, without
explaining its reasons for doing so, generally instructed the
jury once again on reasonable doubt.11 Following deliberations,
which took place thereafter, the jury found Petitioner guilty of
Manslaughter and not guilty of Unauthorized Entry Into a Motor
11
Judge Michael D. Wilson gave the instruction, explaining that
Judge Town was unable to be there due to prior obligations.
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Vehicle. Petitioner was sentenced to twenty years of
imprisonment. The judgment of conviction and sentence was
entered on September 10, 2008.
II.
On October 2, 2008, Petitioner filed a notice of appeal
from the judgment of conviction and sentence. Relevant to our
disposition, Petitioner contended that (1) the court abused its
discretion in ruling that evidence from Petitioner’s juvenile
proceedings would be admissible if Petitioner testified that he
did not know his conduct could cause death and (2) Respondent
engaged in prosecutorial misconduct during closing argument.12
As to the first of the foregoing contentions, the ICA
concluded that, if Petitioner had testified that he was unaware
that a single punch could cause death, “he would have opened the
door to cross-examination about what he learned in the juvenile
proceedings from Dr. Camara’s testimony” inasmuch as “‘[t]he
proper scope of cross-examination includes full development of
matters broached on direct examination, including facts
reasonably related to matters touched on direct.’” Schnabel,
2010 WL 4546655, at *3 (quoting State v. McElroy, 105 Hawai#i
12
Petitioner alleged that the DPA engaged in misconduct on two
occasions during closing arguments. The first related to power point slides.
The second related to the DPA’s urging the jurors to decide the case from
their “gut.” As indicated earlier, we affirm the ICA’s conclusion that the
use of the power point slide did not constitute prosecutorial misconduct. See
supra note 2.
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352, 356, 97 P.3d 1004, 1008 (2004) (quoting State v. Napulou, 85
Hawai#i 49, 57, 936 P.2d 1297, 1305 (App. 1997))).
According to the ICA, although evidence of a
defendant’s prior bad acts is generally inadmissible, “‘[p]rior
bad act’ evidence under [HRE] Rule 404(b) (1993)[13] is
admissible when ‘it is 1) relevant and 2) more probative than
prejudicial.’” Id. at *2 (quoting State v. Maelega, 80 Hawai#i
172, 183, 907 P.2d 758, 769 (1995)). The ICA determined that Dr.
Camara’s testimony would be relevant within the meaning of HRE
Rule 401 (1993)14 “if [Petitioner] had testified that he did not
know that one punch could cause death” because “even though the
incident in the juvenile proceeding did not involve a single
punch, it was evidence having a tendency to make [Petitioner’s]
proffered assertion that he did not know a single punch could
cause death ‘more probable or less probable than it would be
without the evidence.’” Id. (quoting HRE Rule 401).
13
HRE Rule 404(b) provides in pertinent part as follows:
Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity
therewith. It may, however, be admissible where such
evidence is probative of any other fact that is of
consequence to the determination of the action, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, modus operandi, or absence of mistake
or accident.
14
HRE Rule 401 provides that “‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it
would be without the evidence.”
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It was further decided that, because the court stated
it intended to provide a limiting instruction15 in the event Dr.
Camara’s testimony was admitted and because Respondent would be
prevented from disclosing Petitioner’s conviction in those
proceedings, Dr. Camara’s testimony would be more probative than
prejudicial under HRE Rule 403 (1993). Id. The ICA ruled that
if Petitioner had testified as indicated, he would have opened
the door to cross-examination about what he learned in the
juvenile proceedings from Dr. Camara’s testimony. Id. It was
ultimately held that the court’s ruling as to the admissibility
of Dr. Camara’s testimony was not an abuse of discretion. Id. at
*2-3.
As to the second contention raised by Petitioner, the
ICA did “have a concern about the DPA saying ‘[d]on’t get too
caught up in the mumbo jumbo of all the words but use your common
sense.’” Id. (brackets in original). However, the ICA observed
that “upon objection from defense counsel, the [court] stated it
would allow the argument as an illustration,” noting “that ‘the
jury ha[d] the instructions[,]’” and “after a further objection
and a bench conference, the [court] immediately gave a curative
instruction.” Id. The ICA stated, “Given these circumstances,
15
While the court did indicate that it would give a “limiting
instruction” in the event evidence from Petitioner’s juvenile proceedings was
admitted, there is no indication in the record regarding what the limiting
instruction would have been.
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in particular the immediate curative instruction . . . as well as
the strength of the evidence against [Petitioner], we conclude
that the statements of the DPA were harmless beyond a reasonable
doubt.” Id.
III.
On March 15, 2011, Petitioner filed an application for
writ of certiorari (Application), urging this court to review the
Memorandum Opinion of the ICA. Petitioner presents the following
pertinent questions in his Application:
1. Whether the ICA gravely erred in affirming the []
court’s holding that if [Petitioner] testified that he did
not know that one punch could cause death[,] that
[Respondent] could introduce Dr. Camara’s testimony from
[Petitioner’s] juvenile proceedings[.]
. . . .
3. Whether the ICA gravely erred in holding that the DPA
did not commit misconduct during closing arguments[. 16]
On March 21, 2011, Respondent filed a Response to the
Application.
16
The other questions raised in Petitioner’s Application were:
2. Whether the ICA gravely erred in holding that trial
counsel was not ineffective for failing to subpoena the
physician [who] had attended to the [decedent] prior to his
death and who had signed the death certificate[.]
. . . .
4. Whether the ICA gravely erred in holding that there
was sufficient evidence to sustain [Petitioner’s] conviction
where his use of force had been in self-defense[.]
5. Whether the ICA gravely erred in holding that there
was sufficient evidence that [Petitioner] recklessly caused
[decedent’s] death[.]
To reiterate, we affirm the ICA’s opinion as to the foregoing
questions, and therefore, they are not specifically addressed herein.
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IV.
In connection with the first question, Petitioner
argues that evidence from his juvenile proceedings was not
admissible because such evidence was not relevant. See HRE Rule
401. Petitioner notes that Dr. Camara testified an orbital
fracture resulting from several kicks and punches to the face
could result in a subdural hematoma, which could cause death; by
contrast, the instant case involved an alleged single punch to
the head. Thus, he maintains that the juvenile incident was not
relevant because it “was factually dissimilar to the incident in
the instant case.” According to Petitioner, the court’s error in
ruling that the evidence would be admitted if Petitioner
testified cannot be said to have been harmless because “it
impermissibly infringed on [his] right to testify” under the
Fifth and Fourteenth Amendments to the United States
Constitution17 and article I, sections 5 and 10 of the Hawai#i
Constitution.18
17
The Fifth Amendment to the United States Constitution provides in
relevant part that no person “shall be compelled in any criminal case to be a
witness against himself[.]” The Fourteenth Amendment to the United States
Constitution provides in relevant part that no “State [shall] deprive any
person of life, liberty, or property, without due process of law[.]”
18
Article I, section 5 of the Hawai#i Constitution provides that
“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws, nor be denied
the enjoyment of the person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.” Article I,
section 10 provides in relevant part that no person shall “be compelled in any
criminal case to be a witness against oneself.”
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Respondent’s Response states that “Petitioner’s
presence at the [juvenile] proceeding . . . makes it reasonable
to presume he heard [Dr. Camara] render his opinion.” Although
the juvenile incident did not involve a single punch, Respondent
contends Dr. Camara’s testimony would have a tendency to make
Petitioner’s assertion that he did not know a single punch could
cause death more or less probable than it would be without the
evidence. Respondent asserts that Dr. Camara did not testify
that multiple blows to a person’s head were required to cause an
orbital fracture or resulting subdural hematoma, but, rather,
they could result in a subdural hematoma that could cause death.
Respondent states, “Simply put,” Dr. Camara’s testimony indicated
that “death can result from a powerful blow to the face.”
Regarding any unfair prejudice, see HRE Rule 403,
Respondent points out that the court made clear such testimony
would only be allowed if Petitioner testified that he was unaware
a single punch could cause death. Respondent additionally notes
that, in the event that evidence was adduced, the court “would
have issued a ‘very limiting instruction’ to ensure Petitioner
would not suffer any unfair prejudice.”
V.
On April 28, 2011, supplemental briefing as to the
applicability of HRS § 571-84(h) was ordered by this court with
respect to Petitioner’s first question. In his Supplemental
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Brief filed on May 9, 2011, Petitioner argues that HRS § 571-
84(h) prohibits the use of evidence adduced in a juvenile
proceeding “in any civil, criminal, or other cause . . . for any
purpose whatever.” Petitioner asserts that in State v. Nobriga,
56 Haw. 75, 527 P.2d 1269 (1974), this court “confirmed that
evidence adduced in a juvenile proceeding cannot be used in a
subsequent criminal case involving the same defendant.”
Petitioner contends that such use is also prohibited
under HRS § 571-1 (2006 Repl.).19 In that vein, Petitioner
points out that in State v. Riveira, 92 Hawai#i 521, 993 P.2d 555
(2000) [hereinafter, Riveira II], this court overruled the ICA
majority in State v. Riveira, 92 Hawai#i 546, 993 P.2d 580 (App.
1999) [hereinafter, Riveira I], and “adopted [the] dissenting
opinion” which stated that under HRS § 571-1, “‘[a]ny evidence
given in any case under section 571-11 shall not in any civil,
criminal, or other cause in any court be lawful or proper
evidence against the child for any purpose whatever [] except in
subsequent cases involving the same child under section 571-11.’”
(Quoting Riveira I, 92 Hawai#i at 559, 993 P.2d at 593. (Acoba,
J., dissenting).) (Brackets omitted.)
19
HRS § 571-1, entitled “Construction and purpose of chapter[,]”
also provides in part, that “[a]ny evidence given in any case under section
571-11 shall not in any civil, criminal, or other cause in any court be lawful
or proper evidence against the child for any purpose whatever except in
subsequent cases involving the same child under section 571-11.” (Emphases
added.)
19
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In sum, Petitioner contends that because HRS §§ 571-1
and 571-84(h) prohibit the use of evidence adduced in juvenile
proceedings for any purpose whatsoever, the court’s ruling as to
the admissibility of the juvenile proceedings was based on an
incorrect interpretation of the law. Petitioner repeats that
such error cannot be said to be harmless where it infringed on
his constitutionally and statutorily protected right to testify.
In its supplemental brief filed on May 9, 2011,
Respondent preliminarily declares that because Petitioner did not
object to Dr. Camara’s testimony based on HRS § 571-84(h), he may
not argue on appeal that the statute barred the introduction of
such evidence. Next, Respondent argues that HRS § 571-84.6, and
not HRS § 571-84(h), is applicable in this matter.
HRS § 571-84(a) generally withholds juvenile records
including transcripts from public inspection, except as provided
in HRS § 571-84.6. HRS § 571-84(a) provides in relevant part as
follows:
(a) The court shall maintain records of all cases
brought before it. Except as provided in section 571-84.6,
in proceedings under section 571-11[,] . . . the following
records shall be withheld from public inspection: the court
docket, petitions, complaints, motions, and other papers
filed in ant case; transcripts of testimony taken by the
court; and findings, judgments, orders, decrees, and other
papers other than social record filed in proceedings before
the court.
(Emphases added.) In that regard, HRS § 571-84.6 (2006 Repl.)20
20
The effective date of HRS § 571-84.6 was June 30, 1997. The
incident occurred on April 22, 2007. HRS § 571-84.6 was in effect during
(continued...)
20
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allows for public inspection of records and public proceedings in
certain limited circumstances. That statute provides in relevant
part as follows:
(b) Notwithstanding any other law to the contrary, in
any proceeding in which a minor age fourteen of age or older
has been adjudicated by the court under section 571-11(1)
for an act that if committed by an adult would:
. . . .
(2) Result in serious bodily injury . . . of a
victim;
. . . .
all legal records[ 21] related to the above stated proceeding
shall be open for public inspection.
(c) Notwithstanding any other law to the contrary, in
any case in which a minor age sixteen years of age or older
comes within section 571-11(1) is taken into custody for an
act that if committed by an adult would:
. . . .
(2) Result in serious bodily injury . . . of a
victim;
. . . .
all legal proceedings related to the above stated case shall
be open to the public . . . .
(Emphases added.) As stated before, HRS § 571-84(h) provides
that evidence in juvenile proceedings shall not be “lawful or
proper evidence against the minor therein” “in any cause”:22
(h) Evidence given in proceedings under section
571-11(1) or (2) shall not in any civil, criminal, or other
cause be lawful or proper evidence against the minor therein
involved for any purpose whatever, except in subsequent
proceedings involving the same minor under section 571-11(1)
or (2).
(Emphases added.)
20
(...continued)
subsequent evidentiary rulings by the court.
21
HRS § 571-84.6(a) provides that a “‘[l]egal record’ means
petitions, complaints, motions, and other papers filed in any case;
transcripts of testimony taken by the court; and findings, judgments, orders,
decrees, and other papers and adjudication data, other than social records,
filed in proceedings before the court.” (Emphasis added.)
22
HRS § 571-84(h) is re-quoted for convenience.
21
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Respondent asserts that because HRS § 571-84(a) and (h)
both “deal with testimony taken by the court[,]” they “must be
construed with reference to each other[.]” (Citing HRS § 1-16)
(1993)). According to Respondent, “[t]he clause
‘[n]otwithstanding any other law to the contrary,’ prefacing HRS
§ 571-84.6(b) and (c) indicates that” those subsections “govern
over . . . [HRS §] 571-84(h),” which pertains to the exclusion of
evidence. Respondent maintains that the legislative history of
HRS § 571-84.6 also “supports the conclusion that [] ‘transcripts
of testimony taken by the court’ in [juvenile] proceedings[]
. . . would not be exempt from use in future criminal
proceedings.” Respondent points to the following passage
regarding HRS § 571-84.6:
[T]he purpose of this act is to eliminate the
confidentiality of certain records and proceedings of
juvenile law violators adjudicated for serious, repeat, or
violent offenses in order to maintain public safety, to
restore public confidence in the juvenile system, and to
send a message to certain juvenile law violators that their
actions will be treated seriously.
(Quoting 1997 Haw. Sess. Laws Act 317, § 1 at 755-56.) (Emphasis
added.)
According to Respondent, under HRS § 571-84.6(b) and
(c), the transcripts of Dr. Camara’s testimony, as legal records,
and Petitioner’s juvenile proceedings, respectively, were
accessible to the “public,” which, in turn, is defined as “‘open
or available for all to use, share, or enjoy.’” (Citing State v.
Hussein, 122 Hawai#i 495, 522, 229 P.3d 313, 340 (2010).)
22
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Respondent asserts that, therefore, the evidence was also
available for use against Petitioner in the instant case.
Furthermore, Respondent urges that allowing the admission of
“‘transcripts of testimony taken by the court’” “would promote
the legislature’s express intent ‘to eliminate the
confidentiality of certain records and proceedings of juvenile
law violators’” and “‘send a message . . . that their actions
will be treated seriously.’” (Quoting 1997 Haw. Sess. Laws Act
317, § 1 at 755-56.) Finally, Respondent avers that since the
evidence sought to be admitted would be available for use in a
sentencing hearing, (citing Hussein, 122 Hawai#i at 529, 229 P.3d
at 347), it should likewise be available for use at trial.
VI.
Although HRS § 571-84(h) was not raised by the parties,
or noticed by the court or the ICA, we take judicial notice of
the statute. See Life of the Land, Inc. v. City Council of City
& County of Honolulu, 61 Haw. 390, 419, 606 P.2d 866, 885 (1980).
In Life of the Land, this court found several ordinances relevant
to the appeal, although such ordinances were not in the appellate
record. See id. This court concluded that “[t]he trial court
. . . could have taken judicial notice of those ordinances, and
their contents[.]” Id. It was explained that, “[a]uthorities
are in conflict [on] whether an appellate court may take judicial
notice of municipal ordinances, not in the appeal record, which
23
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the trial court could have judicially noticed.” Id. Life of the
Land determined, however, that “the authorities which permit
appellate courts to take judicial notice of such ordinances are
more consonant with reason” and therefore, took judicial notice
of those ordinances. Id. at 419-20, 606 P.2d at 885.
In the instant case, the court “could have taken
judicial notice of the [statute,]” id. at 419, 606 P.2d at 885,
under HRE Rule 202(b) (Supp. 2008), which provides in relevant
part that “[t]he court shall take judicial notice of “the
constitutions and statutes of . . . every state.” See also State
v. West, 95 Hawai#i 22, 26-27, 18 P.3d 884, 888-89 (2001). In
West, this court noted that “[m]ost states with statutes
mandating courts to take judicial notice of municipal ordinances
require counsel to explicitly ask that the trial court take
judicial notice of the particular municipal ordinance.” Id. at
27 n.10, 18 P.3d at 889 n.10. However, this court “interpret[ed]
the mandatory language of [HRE Rule 202(b)] differently than
other states have,” holding that the courts of this state “are
duty-bound to take ‘judicial notice’ of municipal ordinances[,]”
“just as they do of state statutes.” Id. at 26, 18 P.3d at 888.
According to this court, “‘[a]lthough the law varies
from jurisdiction to jurisdiction as to what laws are subject to
judicial notice, . . . it is universally accepted that a court
must judicially notice the public law of its own jurisdiction.’”
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Id. at 27, 18 P.3d at 889 (quoting Jones on Evidence at § 2:2
n.2) (brackets and ellipsis in original). It was thus concluded
that “state circuit and district courts must treat ordinances
like state statutes, specifically, as not required to be admitted
in evidence or to be expressly requested by counsel.” Id.
(emphasis added).23
It would seem apparent from the foregoing that state
statutes need not be admitted into evidence or brought to the
attention of the court by the parties in order to be noticed by
the court.24 West reasoned, “‘It is axiomatic that a court must
‘know’ the law within its jurisdiction; hence a court is required
to ‘notice’ applicable law and to instruct the jury thereon[.]’”
Id. at 26-27, 18 P.3d at 888-89 (quoting Clifford S. Fishman &
Anne T. McKenna, Jones on Evidence § 2:2 (7th ed. 1992))
(emphasis added). We conclude HRS § 571-84(h) is the “applicable
law” in this case. Id.
VII.
The plain language of HRS § 571-84(h) provides that
where a minor is adjudicated in a juvenile proceeding under HRS §
571-11(1) or (2), any evidence given therein is prohibited from
23
It is observed that HRE Rule 202(b) was not in effect at the time
Life of the Land, discussed supra, was decided.
24
As the dissent points out, the issue of whether Respondent would
be able to admit Dr. Camara’s testimony was highly contested between the
parties. See dissenting opinion at 6-8. Those several discussions should
have called HRS § 571-84 to the attention of the court.
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use against the minor in subsequent proceedings, for any purpose
whatsoever, unless the proceeding is a subsequent juvenile
proceeding under HRS § 571-11(1). Dr. Camara’s testimony
constituted “evidence given in [Petitioner’s juvenile]
proceedings[.]” HRS § 571-84(h). The prosecution in the instant
case sought to admit that evidence “against [Petitioner], the
minor therein involved.” Moreover, the admission of such
evidence to impeach Petitioner in the event he testified that he
did not know a single punch could cause the death of a person
would be admission of the evidence for “any purpose whatever.”
Further, the proceedings herein constituted subsequent
proceedings against Petitioner that were not juvenile proceedings
under HRS § 571-11(1), but adult criminal proceedings. Id.
Pursuant to the clear mandate of HRS § 571-84(h), Dr. Camara’s
testimony was inadmissible against Petitioner.
The prohibition against the use of Dr. Camara’s
testimony in this case is also confirmed by Nobriga. In that
case, this court reviewed whether a trial judge could consider,
at the sentencing stage, a presentence investigation report (PSI)
that included the adult-defendant’s juvenile court record, in
light of HRS § 571-84. 56 Haw. at 75, 527 P.2d at 1270. It was
explained that the provisions of the Family Court Act, which
include HRS §§ 571-1 and 571-84, “were designed to afford certain
protections to the juvenile involved in an adversary proceeding
26
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in any court[.]” Id. at 77, 527 P.2d at 1270. On the other
hand, “HRS 706-602 (Supp. 1973) is designed to assist the
sentencing authority by requiring that certain basic information
be made available in the form of a [PSI] which is made mandatory
in certain instances.” Id. at 77, 527 P.2d at 1271.
According to Nobriga, a “clear distinction exists
between the adversary proceeding in court and the sentencing
process. During the latter, the presiding judge is no longer
dealing with the process of determining . . . the guilt or
innocence of the defendant, but rather must concern himself with
imposing a fair, proper and just sentence.” Id. (internal
quotation marks and citation omitted) (emphasis added). Nobriga
directed that the purpose of HRS § 571-84 is to “prohibit the use
of evidence against the child or minor involved in an adversary
proceeding in any court other than Family Court”; it is “not one
of a blanket prohibition banning the use of juvenile records in a
nonadversary proceeding, that is, at the sentencing stage.” Id.
at 78-79, 527 P.2d at 1271-72 (emphasis added). Thus, Nobriga
held that the inclusion of a defendant’s juvenile court record in
the defendant’s PSI does not violate HRS § 571-84. Id. at 81,
527 P.2d at 1273.
In Riveira II, this court examined whether a
defendant’s prior juvenile adjudication constituted a conviction
for purposes of applying the repeat offender sentencing provision
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to the offense of driving without no-fault insurance. 92 Hawai#i
at 522, 993 P.2d at 556. This court held that HRS § 571-1
“mandates against treating juvenile adjudications as
convictions[,]” stating that “[t]he reasoning underlying our
holding is addressed succinctly by [the] dissent” in Riveira I.
Id. (emphasis added).25
In Riveira I, the dissent reasoned that a juvenile
adjudication could not be treated as a prior criminal conviction
because, among other things, HRS § 571-1 directs, “without
qualification,” “that ‘no adjudication by the [family] court of
the status of any child under th[is] chapter [571] shall be
deemed a conviction.’” 92 Hawai#i at 559, 993 P.2d at 593
(Acoba, J., dissenting) (brackets in original). In addition,
“HRS § 571-1 instructs that any evidence used in law violation
25
To reiterate, HRS § 571-1 provides in relevant part:
Construction and purpose of chapter. . . .
This chapter creates within this State a system of
family courts and it shall be a policy and purpose of said
courts to promote the reconciliation of distressed juveniles
with their families, foster the rehabilitation of juveniles
in difficulty, render appropriate punishment to offenders,
and reduce juvenile delinquency. The court shall conduct
all proceedings to the end that no adjudication by the court
of the status of any child under this chapter shall be
deemed a conviction[.] . . . Any evidence given in any case
under section 571-11 shall not in any civil, criminal, or
other cause in any court be lawful or proper evidence
against the child for any purpose whatever except in
subsequent cases involving the same child under section
571-11.
(Emphases added.)
28
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proceedings ‘shall not in any . . . criminal . . . cause in any
event be lawful or proper evidence against the child for any
purpose whatever [] except in subsequent cases involving the same
child under section 571-11.’” Id. (ellipses in original).
According to the Riveira I dissent, “The plain import of this
provision is that any evidence of no-fault insurance violations
may only be used in subsequent family court proceedings” and
“cannot be offered as evidence ‘for any purpose whatever []’ in
any court.” Id. Riveira II, having adopted the reasoning of the
Riveira I dissent, also confirms that, while evidence presented
in juvenile proceedings may be used as evidence in subsequent
juvenile proceedings against the minor, it cannot be offered as
evidence for any purpose whatsoever in any other court.26
In the trial herein, Respondent sought to introduce
evidence given in Petitioner’s juvenile proceedings.
26
The dissent suggests that Riveira I’s bar against the use of
juvenile evidence is not dispositive because Riveira II “‘summarily adopted
the Riveira I dissent[,]’” and Riveira II did not involve the question of
whether evidence from prior juvenile adjudications is admissible in a
subsequent adult criminal trial. Dissenting opinion at 32 n.15. However,
this court overturned the Riveira I majority and “summarily” adopted the
Riveira I dissent because “[t]he reasoning underlying our holding is addressed
succinctly by [the] dissent.” Id. at 523, 993 P.2d at 556; see also id. at
524, 993 P.2d at 558 (“The dissent addresses these concerns succinctly and
clearly.”) Second, contrary to the dissent, in the instant case, part of the
rationale underlying the Riveira I dissent was that the juvenile system was
intended to “promote the reconciliation of distressed juveniles with their
families, foster the rehabilitation of juveniles in difficulty, render
appropriate punishment to offenders, and reduce juvenile delinquency[,]” as
evidenced in part by the mandate in HRS § 571-11 that evidence given juvenile
proceedings “shall not in any civil, criminal, or other cause in any court be
lawful or proper evidence against the child for any purpose whatever except in
subsequent cases involving the same child under section 571-11.” That
rationale was adopted by this court in Riveira II, and thus affirms that
Petitioner’s juvenile evidence is inadmissible in the instant proceedings.
29
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Respectfully, here, the court should have been alerted to the
applicability of HRS § 571-84(h) inasmuch as Petitioner’s
insistence that the evidence was inadmissible bore directly on
the long standing statutory bar to such evidence. Under the
circumstances, HRS § 571-84(h) was directly and obviously
applicable and plainly controlling.27 As a result, in this case,
we take judicial notice of HRS § 571-84(h). Applying it, we
conclude that in light of HRS § 571-84(h), the court erred in
ruling that if Petitioner testified on cross-examination that he
did not know a single punch could cause the death of a person,
Respondent could introduce evidence from Petitioner’s juvenile
proceedings. Alternatively, we also conclude that the court’s
failure to apply HRS § 571-84(h) was plain error.28
27
The dissent refers to the foregoing language as a “test” for when
trial courts or appellate courts must take judicial notice of a statute.
Dissenting opinion at 13. The dissent states this “test” has no basis in our
rules of penal procedure, evidence, appellate procedure, or HRE Rule 202(a).
See id. However, the particular facts of this case give rise to the
conclusion that HRS § 571-84 was directly and obviously applicable and plainly
controlling. Whether this formulation is germane in any particular case would
depend on the circumstances. The facts and circumstances of this case
indicate we should take judicial notice of HRS § 571-84(h).
28
This court has the power to take notice of “[p]lain errors or
defects affecting substantial rights . . . although they were not brought to
the attention of the court.” Hawai#i Rules of Penal Procedure (HRPP) Rule
52(b) (2011). Here, the trial court plainly erred in ruling that evidence
from Petitioner’s juvenile proceedings would be admissible against Petitioner
where the admission of such evidence was prohibited by statute. See State v.
Domingo, 69 Haw. 68, 70, 733 P.2d 690, 692 (1987) (stating that where “the
introduction of the evidence in question [is] prohibited by statute, it
constitute[s] plain error and is noticeable by this court”).
It is well-established that a court’s error can be noticed for
plain error. see State v. Stenger, 122 Hawai#i 271, 282, 226 P.3d 441, 452
(2010) (noting that “the court’s failure to instruct” was reviewed under the
plain error standard of review, which, in the case of erroneous jury
instructions, is merged with the harmless beyond a reasonable doubt standard);
(continued...)
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VIII.
Respondent is incorrect that HRS § 571-84.6(b) and
(c),29 as opposed to HRS § 571-84(h), govern the admissibility of
evidence from juvenile proceedings in subsequent proceedings
involving the minor.
A.
As recounted, Respondent maintains that HRS § 571-84(a)
and HRS § 571-84(h) must be construed with reference to each
other because both HRS § 571-84(a) and (h) deal with transcripts
28
(...continued)
State v. Vellina, 106 Hawai#i 441, 450, 106 P.3d 364, 373 (2005) (noting that
plain error arose when circuit court’s sentence to consecutive terms was based
on the exclusive reliance of unproven assertions by the prosecutor that the
defendant sold guns to a “drug dealer”); State v. Aganon, 97 Hawai#i 299, 304,
36 P.3d 1269, 1274 (2001) (noting that the “court’s [error in] jury
instructions were plainly erroneous”); State v. Fagaragan, 115 Hawai#i 364,
368, 167 P.3d 739, 743 (App. 2007) (“We first consider whether the circuit
court [plainly] erred by entering judgment and sentencing [the defendant] on
both Counts One and Two.”)
Because the court’s error also infringed on Petitioner’s
substantial right to testify, as elucidated herein, it may be noticed for
plain error. See State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915
(1999) (“Because the circuit court’s error infringed upon [the defendant’s]
constitutional right to testify, we address it as plain error.”); see also
State v. Wakisaka, 102 Hawai#i 504, 515, 516, 78 P.3d 317, 328, 329 (2003)
(stating that “the prosecution cannot comment on the defendant’s failure to
testify because this infringes on the defendant’s right not to be a witness
against her-or himself” and “the prosecution[’s] improper[] comment[] on [the
defendant]’s failure to testify” “constitutes plain error which affected
[defendant]’s substantial rights”). This court “will apply the plain error
standard of review to correct errors which seriously affect the fairness,
integrity, or public reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights.” Nichols, 111
Hawai#i at 334, 141 P.3d at 981. Therefore, plain error review applies in
this case.
29
Respondent contends that HRS § 571-84.6(b) and (c) suggest the
transcripts from Petitioner’s juvenile proceedings were admissible against him
in this case. While Respondent notes that records from juvenile proceedings,
that would include transcripts, are open to the public under HRS § 571-84(b),
Respondent does not articulate how the fact that juvenile proceedings are open
to the public under HRS § 571-84.6 would have any bearing on the admissibility
of the transcript of Dr. Camara’s testimony. Thus, our analysis focuses on
whether HRS § 571-84.6(b) is applicable in the instant case.
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of testimony given in juvenile proceedings. (Citing HRS § 1-16).
According to Respondent, since HRS § 571-84(a) is subject to HRS
§ 571-84.6, HRS § 571-84(h) should likewise be subject to HRS §
571-84.6. Respondent invokes HRS § 1-16, which provides that
“[l]aws in pari materia, or upon the same subject matter, shall
be construed with reference to each other,” and “[w]hat is clear
in one statute may be called in aid to explain what is doubtful
in another.” (Emphases added.)
However, HRS § 571-84(a) and (h) do not deal with “the
same subject matter.” HRS § 1-16. HRS § 571-84(a) specifically
provides that “records,” including “transcripts of testimony
taken by the court[,]” “shall be withheld from public
inspection.” (Emphasis added.) On the other hand, HRS § 571-
84(h) provides that “[e]vidence given in juvenile proceedings”
“shall not in any . . . criminal . . . cause be lawful or proper
evidence against the minor therein involved.” It is apparent
that HRS § 571-84(a) deals with public inspection of records,
while HRS § 571-84(h) governs the use of evidence given in a
minor’s juvenile case against such minor in subsequent
proceedings. Accordingly, these two sections do not deal with
the same subject matter and should not be construed with
reference to each other.
Assuming arguendo, the two sections could be said to
deal with the same subject matter, inasmuch as “records” in
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juvenile cases, HRS § 571-84(a), and “evidence given in juvenile
proceedings,” HRS § 571-84(h), both could encompass transcripts
of testimony, HRS § 1-16 relates to the use of one statute to
“explain what is doubtful in another.” But, “‘where the
statutory language is plain and unambiguous, our sole duty is to
give effect to its plain and obvious meaning.’” State v. Kalama,
94 Hawai#i 60, 64, 8 P.3d 1224, 1228 (2000) (quoting Citizens for
Protection of N. Kohala Coastline v. County of Hawai#i, 91 Hawai#i
94, 107, 979 P.2d 1120, 1133 (1999)). HRS § 571-84(h) is not
ambiguous and manifestly directs that evidence in Petitioner’s
juvenile proceedings was inadmissible in his trial herein, for
any purpose whatsoever, impeachment or otherwise. Thus, there is
nothing doubtful in HRS § 571-84(h) that would require resort to
HRS § 571-84(a).
B.
In addition, it is evident from the face of HRS § 571-
84, that while the legislature made HRS § 571-84(a) subject to
HRS § 571-84.6, the legislature did not subject HRS § 571-84(h)
to the provisions of HRS § 571-84.6. HRS § 571-84(a) expressly
provides that, “[e]xcept as provided in section 571-84.6,”
“transcripts of testimony taken by the court” in juvenile
proceedings, “shall be withheld from public inspection[.]”
Contrastingly, HRS § 571-84(h), which makes no mention of HRS
§ 571-84.6, is not qualified by an exception clause. It is
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logical that HRS § 571-84(a) would be subject to HRS § 571-84.6,
and HRS § 571-84(h) would not. HRS § 571-84(a) prohibits public
inspection of records of juvenile proceedings, while HRS
§ 571-84.6(b) contains an exception to the prohibition in HRS
§ 571-84(a), by allowing public access to such records in certain
prescribed instances. On the other hand, none of the subsections
of HRS § 571-84.6 contain any exception to the prohibition in HRS
§ 571-84(h) that have to do with the inadmissibility of juvenile
case evidence in subsequent proceedings.
C.
Nor is it conceivable that, although HRS § 571-84(h) is
not subject to HRS § 571-84.6, the phrase “[n]otwithstanding any
other law to the contrary” in HRS § 571-84.6(b) indicates that
its provisions are to apply even when a conflicting statute does
not specifically make an exception for HRS § 571-84.6. The term
“contrary” denotes a “conflict.” See Merriam Webster’s
Collegiate Dictionary 765 (10th ed. 1989) (defining “contrary,”
inter alia, as “being opposite to or in conflict with each
other”). “[T]wo statutes conflict” where “[i]t is not possible
to give effect to both[.]” State v. Richie, 88 Hawai#i 19, 35,
960 P.2d 1227, 1243 (1998). It is possible, however, to give
effect to both HRS § 571-84.6 and HRS § 571-84(h). The
transcripts of testimony given in Petitioner’s prior juvenile
proceedings could be open to the public for inspection, while at
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the same time, evidence given in such proceedings would be
precluded from use in subsequent adversarial proceedings.
Accordingly, HRS § 571-84(h) is not a “law to the contrary” of
HRS § 571-84.6, and, thus, HRS § 571-84.6 is inapplicable here.
D.
As observed, Respondent also maintains that the
admission of the subject evidence would promote the legislature’s
objective of eliminating confidentiality of certain juvenile
records and of sending a message.30 Initially, the legislative
history that Respondent quotes does not apply here inasmuch as it
governs public inspection of juvenile records, not the
admissibility of evidence given in juvenile proceedings. Thus,
such legislative history is irrelevant.
Moreover, contrary to Respondent’s position, the
legislature did not “announce its departure from the previous
‘rehabilitative approach to juvenile justice’” in favor of “a new
legislative policy to protect the public.” In enacting HRS §
571-84.6, the legislature explained that “the juvenile system in
Hawai#i and other states was originally designed to shield
children from publicity, out of concern for the welfare of the
child” and “‘protect the young person from the stigma of his
30
As indicated before, we conclude that HRS § 571-84(h) is plain and
unambiguous. We address the legislative history of HRS § 571-84.6 only insofar
as Respondent argues that the legislative history indicates such evidence
would be admissible.
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misconduct and is rooted in the principle that a court concerned
with juvenile affairs serves as a rehabilitative and protective
agency of the state.’” 1997 Haw. Sess. Laws Act 317, § 1 at 756
(citing Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105 (1979)
(emphasis added).
As opposed to Respondent’s assertions, the legislature
confirmed the rehabilitative objective of juvenile proceedings,
stating that, “[w]hile continuing to support the rehabilitative
approach to juvenile justice,” the legislature believed that
“public safety and waning public confidence in the juvenile
justice system necessitate the development of a legislative
policy which balances these concerns with the principles of
protection and rehabilitation.” Id. (emphases added). The
legislature attempted to strike this balance by “eliminat[ing]
the confidentiality of certain records and proceedings of
juvenile law violators[,]” and did not express any intent to
allow for the admissibility of evidence from juvenile proceedings
in subsequent adversarial proceedings. Id. (emphases added).
Thus, the foregoing legislative history does not support the
admission of evidence from Petitioner’s juvenile proceedings in
this case.31
31
Finally, Respondent’s reliance on Hussein is misplaced. In
Hussein, this court considered the Commentary on HRS § 706-604(2), that
requires the court to furnish a copy of the PSI to the defendant and the
attorneys because “‘[t]he question of whether the defendant should be
sentenced to imprisonment or to probation is no less significant than the
(continued...)
36
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IX.
Having determined that the court’s ruling that evidence
of Petitioner’s juvenile proceedings could be admissible violated
HRS § 571-84(h), we conclude the ruling constitutes reversible
error. This court has explained that
“[e]rror is not to be viewed in isolation and considered
purely in the abstract. It must be examined in light of the
entire proceedings and given the effect to which the whole
record shows it to be entitled. In that context, the real
question becomes whether there is a reasonable possibility
that error might have contributed to conviction. ”
State v. Duncan, 101 Hawai#i 269, 278, 67 P.3d 768, 777 (2003)
(quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308
(1981)).
A.
As related, defense counsel noted on the record that
the court’s ruling was a reason Respondent decided not to
testify. In this way, the court’s error infringed upon
Petitioner’s constitutionally and statutorily protected right to
testify. Tachibana v. State, 79 Hawai#i 226, 231, 900 P.2d 1293,
31
(...continued)
question of guilt[.]’” 122 Hawai#i at 529, 229 P.3d at 347 (quoting
Commentary on HRS § 706-604(2)) (brackets in original). According to
Respondent, because juvenile records may be included in a PSI for purposes of
sentencing, they should likewise be admissible against the defendant during
the “guilt” phase. However, the Commentary cited in Hussein concerned the
defendant’s right to controvert the contents of the PSI. While the sentencing
phase may be no less significant to a defendant inasmuch as both phases
involve the defendant’s liberty, the same rationale does not support a right
of the prosecution to use evidence against a defendant, where such use is
plainly prohibited by statute.
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1298 (1995)32 (quoting State v. Silva, 78 Hawai#i 115, 122-23, 890
P.2d 702, 709-10 (App. 1995)). Error that infringes on one’s
constitutionally protected right cannot be said to be harmless
beyond a reasonable doubt. State v. Cuevas, 53 Haw. 110, 115,
488 P.2d 322, 325 (1971) (concluding that “error is neither
unimportant nor insignificant” where “it infringes upon a basic
right of the accused”; “[in such instances, the error] raises a
reasonable possibility that it might have contributed to the
conviction” such that it “cannot [be said] that it was harmless
beyond a reasonable doubt”); see also State v. Amorin, 61 Haw.
32
The Tachibana court explained that a defendant’s right to testify
is guaranteed by the constitutions and statute.
The right to testify in one’s own behalf arises
independently from three separate amendments to the United
States Constitution. It is one of the rights guaranteed by
the due process clause of the fourteenth amendment as
essential to due process of law in a fair adversary process.
. . .
The right to testify is also guaranteed to state
defendants by the compulsory process clause of the sixth
amendment as applied through the fourteenth amendment. . . .
Lastly, the opportunity to testify is also a necessary
corollary to the Fifth Amendment's guarantee against
compelled testimony, since every criminal defendant is
privileged to testify in his [or her] own defense, or to
refuse to do so.
Because the texts of sections 5, 14, and 10 of article
I of the Hawai#i Constitution parallel the fourteenth,
fifth, and sixth amendments to the United States
Constitution, . . . the right to testify is also guaranteed
by these parallel provisions of the Hawai#i Constitution.
. . .
There is also a statutory protection for the right to
testify. HRS § 801-2 (1985) states:
In the trial of any person on the charge of any
offense, he or she shall have a right . . . to be
heard in his or her defense.
79 Hawai#i at 231-32, 900 P.2d at 1298-99 (quoting Silva, 78 Hawai#i at 122-23,
890 P.2d at 709-10 (ellipses in original) (brackets omitted).
38
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356, 362, 604 P.2d 45, 50 (1979) (concluding that because “trial
court’s error in admitting the defendant’s illegally obtained
confession infringed upon the defendant’s constitutional right,”
“the error raised the reasonable possibility of having
contributed to the conviction below” such that it “cannot [be]
sa[id] that it was harmless beyond a reasonable doubt”); State v.
Mitchell, 88 Hawai#i 216, 227-28, 965 P.2d 149, 160-61 (App.
1998) (concluding that the error that “violated [the defendant’s]
due process rights” “was not harmless beyond a reasonable doubt”
because “[a]n accused’s right to due process is of overriding
importance”).
The relevant question under the harmless beyond a
reasonable doubt standard is “‘whether there is a reasonable
possibility that error might have contributed to conviction.’”
Duncan, 101 Hawai#i at 278, 67 P.3d at 777 (quoting Heard, 64
Haw. at 194, 638 P.2d at 308) (emphases added). Here, the
admission of Dr. Camara’s testimony was highly contested at trial
and the court’s erroneous ruling affected Petitioner’s decision
not to testify. Consequently, there is a “reasonable
possibility” that the court’s error “might have” contributed to
his conviction.
B.
The court’s ruling was a factor in precluding testimony
39
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from Petitioner negating the requisite reckless state of mind.33
As related, Petitioner indicated that he would testify he was
unaware a single punch could cause the death of a person.
However, the court ruled that if Respondent laid a foundation as
recounted, supra, and Petitioner testified as indicated, the
court would be inclined to allow Respondent latitude in admitting
the evidence from the juvenile proceeding. An assertion by
Petitioner that he did not know his one punch carried with it a
substantial risk of death was evidence that could have negated
the requisite state of mind. Cf. State v. Pacheco, 96 Hawai#i
83, 97, 26 P.3d 572, 586 (2001) (stating that, “had the jury
believed Pacheco’s testimony, it may well have harbored a
reasonable doubt as to whether Pacheco had possessed the state of
mind requisite to committing the offense of second degree
escape”). Such testimony would have been corroborated, at least
to some extent, by the medical examiner’s testimony that the
injury that caused decedent’s death was “not very common” and
“unique.” However, the court’s announced decision to allow
evidence from the juvenile proceeding impeded Petitioner’s
proffer of evidence regarding his state of mind. Hence, it is
reasonably possible that the court’s error might have contributed
to Petitioner’s conviction inasmuch as the error was a
33
Respondent was required to prove, as an element of the offense,
the requisite state of mind, i.e., that Petitioner knew there was a
substantial and unjustifiable risk that his conduct could cause the death of
another person and that Petitioner consciously disregarded that risk.
40
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consideration in his decision not to testify, and, thus, was not
harmless beyond a reasonable doubt.
C.
Such an error also affected Petitioner’s claim of
self-defense. See Domingo, 69 Haw. at 70, 733 P.2d at 692
(holding that the trial court’s admission of a physician’s
testimony to impeach the defendant’s testimony that decedent had
“c[o]me at him with a sharp object[,]” where such admission was
statutorily prohibited, “[could not] be said to be harmless
beyond a reasonable doubt[,]” “[g]iven the assertion of
self-defense and the fact that the jury might have returned a
verdict of manslaughter, rather than murder”). “[T]he use of
force upon or toward another person is justifiable when the actor
believes[34] that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force
by the other person on the present occasion.” HRS § 703-304(1)
(1993) (emphasis added). “The facts of consequence to the
determination of self-defense . . . all concern the actor’s state
of mind: (1) whether the actor reasonably believed that [] force
was necessary; and (2) whether the actor reasonably believed that
he or she was threatened with one of the specified harms[.]”
34
HRS § 703-300(1) (1993), which defines “believes,” states that
“‘[b]elieves’ means reasonably believes[,]” and applies the “reasonable man
standard with respect to justification for the use of force in self
protection, in the protection of property, and in the protection of others.”
Commentary on HRS § 703-300 (quotation marks omitted).
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State v. Kupihea, 80 Hawai#i 307, 316, 909 P.2d 1122, 1131 (1996)
(emphases added).
Consequently, “the critical factor in determining
whether an actor’s conduct is justified is the actor’s state of
mind or belief respecting facts and circumstances.” Supplemental
Commentary on HRS § 703-300 (1993); see also State v. Augustin,
101 Hawai#i 127, 128, 63 P.3d 1097, 1098 (2002) (stating that the
reasonableness as to a defendant’s use of force “‘is determined
from the point of view of a reasonable person in the
[d]efendant’s position under the circumstances as he believed
them to be”; in other words, the jury “must consider the
circumstances as the [d]efendant subjectively believed them to be
at the time he tried to defend himself”) (quoting State v.
Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990)) (brackets in
original).
Petitioner was the only person who could testify as to
his subjective belief of the facts and circumstances surrounding
his use of force. The crux of his defense would be testimony
regarding his belief that force was necessary and that decedent
had in fact threatened him with harm. Petitioner’s defense would
have been corroborated by Reverio’s testimony. Again, it is
reasonably possible that the court’s error might have contributed
to Petitioner’s conviction inasmuch the court’s ruling as to the
juvenile proceedings was a factor in his decision not to testify.
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Thus, the error cannot be said to be harmless beyond a reasonable
doubt.
X.
We next consider Petitioner’s third question, whether
the DPA engaged in misconduct during closing argument by advising
the jury that the instructions were “mumbo jumbo,” that the jury
instructions could be disregarded,35 and that the jurors could
decide the question of guilt based on their “gut feeling[.]”
Respondent argues that the court’s instruction that the jury was
not bound by the closing arguments would ensure the jury would
base its decision on the evidence and law;36 that the DPA made
these statements in discussing reasonable doubt and reiterated
that the jurors were to “‘apply common sense, the law[,] and the
facts’ when determining whether the evidence proved Petitioner’s
guilt beyond a reasonable doubt”; and that the court “took the
35
Petitioner did not challenge this specific statement in his
opening brief to the ICA. This statement was first noticed by the ICA. See
Schnabel, 2010 WL 4546655, at *4.
36
In its Response, Respondent points to the following instruction:
Statements or remarks made by counsel are not
evidence. You should consider their arguments to you, but
you are not bound by their recollections or interpretations
of the evidence. . . .
. . . .
. . . . [W]e’re going to hear closing arguments as
you’re well aware. You’ve heard the evidence. You have the
law. It’s the attorneys’ views. Listen carefully but
you’re not bound by their recollections of the evidence or
the law. . . .
(Ellipses in original.)
43
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uncommon and additional prophylactic step of issuing [an]
admonition” to the jury that Respondent was required to prove
Petitioner’s guilt beyond a reasonable doubt “after [closing]
arguments[.]” (Emphasis in original.)
Respondent concedes that “in hindsight, the [DPA]
should have eschewed the inclusion of the obviously colloquial
expression ‘mumbo jumbo of all the words’ for a more conventional
phrase[,]” but argues that, “[c]onsidering the context in which
the [DPA] made the statements, the immediate curative instruction
of the court, and the ‘strength of the evidence’ against
Petitioner,” the ICA did not gravely err “in concluding the
statements were ‘harmless beyond a reasonable doubt.’” (Quoting
Schnabel, 2010 WL 4546655, at *4.)
XI.
Here, the DPA’s remarks during closing argument
constituted misconduct.37 The DPA stated, “And when you go in
the deliberation room, read the[ jury] instructions but . . .
[d]on’t get too caught up in the mumbo jumbo of all the words but
use your common sense.” (Emphasis added.) The term “mumbo
jumbo,” as used in the foregoing context, would mean
“unnecessarily involved and incomprehensible language:
37
Although Petitioner alleges that the DPA’s comments regarding
“mumbo jumbo” and “gut” were two separate instances of misconduct, they are
addressed together.
44
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gibberish[.]” Merriam Webster’s Collegiate Dictionary at 765
(capitalization omitted). Thus, the DPA essentially suggested to
the jury that the jury instructions were incomprehensible
gibberish, thereby denigrating statements of law on which the
jury had been or would be instructed.
The DPA reinforced the “mumbo jumbo” reference by
telling the jury to “[p]ut aside those words [of the
instructions].” By doing so, the DPA again reinforced the
proposition that the jurors could disregard the law embodied in
the instructions. The DPA told the jurors more than once, and in
more than one way, to decide the case by “gut feeling,” imploring
each juror to “dig deep down inside and ask yourself,” “based on
your gut feeling[,] . . . Is he guilty?” (Emphasis added.) He
further misstated the law in telling the jurors that basing
Petitioner’s guilt on their “gut feeling” was equivalent to the
exercise of their “common sense.”
The court instructed the jury that reasonable doubt “is
a doubt in your mind about the defendant’s guilt which arises
from the evidence presented or from the lack of evidence and
which is based upon reason and common sense.” (Emphasis added.)
“Reason” is defined, among other things, as “the power of
comprehending, inferring or thinking esp[ecially] in [an] orderly
rational way[.]” Id. at 974. “Common sense” is defined in part
45
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as “[g]ood, sound, ordinary sense” or “good judgment[.]”
Webster’s Third New Int’l Dictionary 540 (1960). In contrast, a
“gut feeling” is something “visceral” “arising from one’s inmost
self[.]” Merriam Webster’s Collegiate Dictionary at 519. Giving
way to a “gut feeling” is the antithesis of reason--thinking in
“an orderly and rational way,” and common sense--exercising sound
and prudent judgment, as extolled by the instruction.
Accordingly, Respondent was incorrect in equating a “feeling
inside” to common sense.
Respectfully, the court also erred in accepting
Respondent’s argument that “gut feelings” could be equated with
common sense, and in ignoring the fact that common sense is to be
considered in tandem with “reason.” The DPA’s statement, then,
improperly “invite[d] the jury to base its verdict on
considerations other than the evidence in the case,” unguided by
the law. State v. Mars, 116 Hawai#i 125, 143, 170 P.3d 861, 879
(App. 2007). In sum, the DPA’s remarks were plainly erroneous
and amounted to prosecutorial misconduct. State v. Cardus, 86
Hawai#i 426, 433, 439, 949 P.2d 1047, 1054, 1060 (App. 1997)
(concluding that the prosecutor’s statement during rebuttal
argument “urg[ing] the jury to, in effect, ignore the jury
instructions and follow their ‘common sense’” “was improper” and
“constituted prosecutorial misconduct”).
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XII.
Having determined that the DPA’s statements amounted to
misconduct, we must decide whether such misconduct warrants
vacation. “‘Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard,’” and do
not warrant vacation or reversal unless “‘there is a reasonable
possibility that the error complained of might have contributed
to the conviction.’” State v. Mainaaupo, 117 Hawai#i 235, 247,
178 P.3d 1, 13 (2008) (quoting State v. Iuli, 101 Hawai#i 196,
204, 65 P.3d 143, 151 (2003)). In deciding the foregoing
question, we must consider the following factors: “‘(1) the
nature of the conduct; (2) the promptness of a curative
instruction; and (3) the strength or weakness of the evidence
against the defendant.’” Id. at 252, 178 P.3d at 18 (2008)
(quoting State v. Hauge, 103 Hawai#i 38, 47, 79 P.3d 131, 140
(2003) (quoting Pacheco, 96 Hawai#i at 93, 26 P.3d at 582)).
A.
The nature of the prosecutor’s conduct was not
harmless. As officers of the court, counsel are bound to respect
the law, as embodied in the instructions, not to impugn it. The
DPA’s argument to the jurors encouraged disdain for the law.
Contending that the jurors could decide the case on their “gut
feelings” clashed with the instruction on reasonable doubt. In
47
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essence, the DPA’s argument abrogated Respondent’s duty to prove
each element of the offense under the standards set forth in the
reasonable doubt instruction as is constitutionally and
statutorily required.38 See Murray, 116 Hawai#i at 10, 169 P.3d
at 962 (“The defendant’s right to have each element of an offense
proven beyond a reasonable doubt is a constitutionally and
statutorily protected right.”). “[A]lthough this court has
previously allowed the prosecution wide latitude when making
closing remarks, . . . a prosecutor’s comments may not infringe
on a defendant’s constitutional rights.” State v. Mattson, 122
Hawai#i 312, 325, 226 P.3d 482, 495 (2010). Based on the
foregoing, the misconduct was not harmless as to the first
factor.
B.
As to the second factor, no curative instruction was
given in this case. The overarching fact, with respect to the
impact of the court’s ruling on the jury, was that the defense’s
objection was overruled. Pacheco, 96 Hawai#i at 96, 26 P.3d at
585 (“Regarding the second factor, the circuit court gave no
curative instructions to the jury. Indeed, when the DPA first
characterized Pacheco as an ‘asshole’ during his
38
As noted in State v. Murray, 116 Hawai#i 3, 10 n.8, 169 P.3d 955,
962 n.8 (2007), HRS § 701-114 (1993) provides in relevant part that “no person
may be convicted of an offense unless” “[e]ach element of the offense” is
“proved beyond a reasonable doubt.” (Emphases omitted.)
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cross-examination of him, the circuit court overruled defense
counsel’s objection.”); see also State v. Meyer, 99 Hawai#i 168,
172, 53 P.3d 307, 311 (App. 2002) (stating that “no specific
curative instruction was given by the court in this case because
the court overruled defense counsel’s objection to the DPA’s
[statements]”); State v. McGriff, 76 Hawai#i 148, 160, 871 P.2d
782, 794 (1994) (“Generally, a prosecutor's improper remarks are
considered cured by the court’s instructions to the jury, because
it is presumed that the jury abided by the court's admonition to
disregard the statement.” (Internal quotation marks and citation
omitted).); Pemberton, 71 Haw. at 475, 796 P.2d at 84 (noting
that it is “presumed” that the jury will abide by a court’s
admonition to disregard an improper argument); State v. Melear,
63 Haw. 488, 497, 630 P.2d 619, 626-27 (1981) (noting that the
circuit court “instructed the jury to disregard the arguments of
the prosecutor[,]” which “removed any harm or prejudice . . .
caused by the prosecutor’s statements”); State v. Cavness, 46
Haw. 470, 473, 381 P.2d 685, 686-687 (1963) (“When the Court has
instructed that something which the[ jurors] have heard is not to
be considered by them, we must presume in favor of their oath and
public duty.” (Internal quotation marks and citations omitted).).
Consequently, “by overruling defense counsel’s objection, the []
court, at least tacitly, placed its imprimatur upon the DPA’s
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[improper remarks.]”39 Pacheco, 96 Hawai#i at 96, 26 P.3d at
585.40
Unlike in Cardus, where the ICA concluded that similar
comments did not warrant a mistrial,41 the jurors here were never
39
From the dissent’s point of view, “overruling of the objection did
not convey approval” of the prosecutor’s improper remarks, or
“vitiate the effect of the court’s comments reminding the jury to follow the
instruction on reasonable doubt[,]” the court cured the improper remark by
referring to the jury instruction on reasonable doubt. Dissenting opinion at
42. But it is clear the court’s overruling of the defense’s objection
indicates that the improper prosecution argument was permissible. Further, by
stating that it would allow the argument and noting for the jury that the DPA
had “latitude” in making an argument, the court wrongly conveyed to the jury
that equating common sense in the court’s instruction with a “gut feeling” was
acceptable and could guide the jurors’ decision.
40
The dissent suggests that “all” of the foregoing cases are
distinguishable, but refers only to Pacheco and Meyer. See dissenting opinion
at 42-43. According to the dissent, all of the cases including Pacheco and
Meyer are distinguishable because in those cases, the trial court did not
refer the jury to an instruction that was “contrary to the argument being made
by the prosecutor.” Id. The dissent maintains it was the reasonable doubt
instruction that was “contrary” to the prosecutor’s argument and thus
curative. Id. at 43. But the court did not sustain the objection and tell
the jury to disregard the improper argument. See discussion supra; see State
v. Espiritu, 117 Hawai#i 127, 143, 176 P.3d 885, 901 (2008) (holding that
“[n]o curative instruction was given[,]” and the court’s instructions did not
“disabuse[]” the jury of the prosecutor’s improper remarks); Pacheco, 96
Hawai#i at 96, 26 P.3d at 585 (noting that “the circuit court gave no curative
instructions to the jury[]” insofar as it “overruled defense counsel’s
objection[,]” thereby “plac[ing] its imprimatur upon the [prosecutor’s
improper argument], risking the implication that it, too,” believed the
improper argument, and “invit[ed] the jury to share in that belief”); Rogan,
91 Hawai#i at 415, 984 P.2d at 1241 (noting that the failure to sustain the
defendant's objection and, consequently, the lack of curative instruction
weighed in favor of the conclusion that prosecutorial misconduct was not
harmless beyond a reasonable doubt); Meyer, 99 Hawai#i at 172-73, 53 P.3d at
311-12 (recognizing that there “was no specific curative instruction given by
the court in this case because the court overruled defense counsel's
objection”). Indeed, it confirmed the prosecution equating “gut feeling” with
common sense. Citing the standard jury instruction on reasonable doubt but
overruling the objection, as the court did in the instant case, does not
suggest to the jury that the prosecutor’s argument was “contrary” to the
instruction, but rather, that the objection was wrong, leaving in place the
prosecutor’s improper remarks.
41
In Cardus, 86 Hawai#i at 433, 949 P.2d at 1054, the prosecutor
“urged the jury to, in effect, ignore the jury instructions and follow their
‘common sense.’” Following an objection and bench conference, defense counsel
moved for a mistrial. Id. The trial court denied the defense’s motion for
(continued...)
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instructed to reject the DPA’s entreaties. In that connection,
the court’s instruction that “pity, passion and prejudice have no
play” in determining “reasonable doubt” was also insufficient to
cure the misconduct because the instruction did “not relate[] to
the prejudicial effects of the prosecutor’s assertions” or
“specifically address and correct the misstatements [] given.”42
Espiritu, 117 Hawai#i at 143-44, 176 P.3d at 901-02.43 Similarly,
although Respondent noted that the court instructed the jury that
statements or remarks made by counsel are not evidence, that
instruction was not a “curative instruction” because the court
overruled the objection and, moreover, “the specific
misstatements in question have to do with law and not evidence.”
Id. at 143, 176 P.3d at 901 (emphasis omitted); see also id.
41
(...continued)
mistrial but struck the statement and told the jury to disregard the argument.
Id. The trial court then instructed the jury as follows: “Ladies and
gentlemen, at this time I am going to ask you to please disregard the
prosecutor’s last statement. And ask you to please disregard the prosecutor
[sic] last statement.” Id. (brackets in original).
42
The dissent maintains that the court’s reference to the foregoing
jury instruction “nullified” the prosecutor’s “improper argument” that the
jury could ignore the law, and “sufficiently addressed” the “prejudicial
impact” of that argument. Dissenting opinion at 41. But the court sustained
the “gut feeling” remark as the prosecution’s “take on common sense.” And
inasmuch as the court did not overrule the prosecutor’s “improper argument,”
the court could not have “nullified” such argument.
43
The dissent maintains that, unlike in Espiritu, here the court
referred the jury to the reasonable doubt instruction in regard to the
prosecutor’s arguments. Dissenting opinion at 45. However, Espiritu
expressly stated that “[n]o curative instruction was given[,]” 117 Hawai#i at
143, 176 P.3d at 901 (emphasis added), because, as in the instant case, the
court did not “disabuse” the jury of the incorrect prosecutorial argument,
leaving the jury with the perception that the misstatement was not incorrect.
Id.
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(where the prosecutor misstated the law by implying that an
attempted manslaughter defense had additional elements not set
forth in the statute, holding that, “[a]lthough the court did
instruct the jury as to the elements of an attempted manslaughter
defense, . . . [t]he jury was not disabused of this error”
“[b]ecause [the defense’s] objections to these arguments were
overruled, [and] the jury would reasonably perceive that the
misstatement of the law was not incorrect”). Here, the court’s
instruction simply did not address the DPA’s misstatements.44
Lastly, because the court did not state its reasons for
twice instructing the jury on reasonable doubt, any suggestion by
Respondent that the second instruction was “prophylactic,” after
an apparent two-day break in the proceedings, is nothing more
than speculation. The second general instruction on reasonable
doubt also did not specifically address the improper nature and
prejudicial effects of the comments. Thus, “the second factor
. . . weighs heavily in favor of [Petitioner].” Rogan, 91
Hawai#i at 415, 984 P.2d at 1241.
44
Relying on cases from outside this jurisdiction, the dissent
maintains that the test for the second prong should be whether “the entirety
of the court’s comments were sufficient to alleviate the prejudice caused by
the prosecutor’s improper remarks.” Dissenting opinion at 47-49 (citing
Rodriguez v. Peters, 63 F.3d 546, 559 (7th Cir. 1995); People v. Katzenberger,
101 Cal. Rptr. 122, 128 (Cal. Ct. App. 2009); Uvalle v. State, Nos. 05-98-
0466-CR, 05-98-0467-CR, 05-98-00468-CR, 199 WL 592397, at *6 (Tex. Ct. App.
Aug. 9, 1999) (not designated for publication); Morrison v. State, No. 05-94-
01649-CR, 1997 WL 282232, at *4 (Tex. Ct. App. May 29, 1997) (not designated
for publication)). With all due respect, the established and precedential
test in this jurisdiction for this prong is whether a curative instruction was
given, see cases cited supra, at 47-51, notwithstanding foreign decisions that
conflict with our precedent.
52
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C.
The third factor requires consideration of the strength
or weakness of the evidence against Petitioner. Mainaaupo, 117
Hawai#i at 252, 178 P.3d at 18. Although the medical examiner
testified that decedent died as a result of a “traumatic
subarachnoid hemorrhage” caused by an “assaultive blunt force
injury to the head[,]”45 physicians at the hospital who treated
decedent concluded that the he had died from an aneurysm. The
medical examiner offered an explanation for the different
conclusions. However, a question as to the “unique”46 injury
resulting in decedent’s death was raised in the evidence by the
medical examiner. The medical examiner indicated that the injury
was “unique” because, “usually, if somebody falls, . . . [that
is] what’s called [a] subdural hemorrhage[,]” but decedent
“didn’t have any of that.”
45
According to the dissent, “the medical examiner’s testimony
provided strong support that Reuther’s injury was caused by a punch that he
did not anticipate.” Dissenting opinion at 51. But there is nothing in the
record indicating the medical examiner opined that decedent “did not
anticipate” a punch. Id. Instead, the examiner stated that when a person
expects to be hit, it is unlikely that the brain will suffer trauma, but even
if it is unexpected and a “blow is not really hard,” trauma can occur. The
medical examiner testified that a “traumatic subarachnoid hemorrhage” occurs
“mostly when [the impact is] unexpected[,]” but “anything is possible[,]” so
the medical examiner could not definitively state that the injury “can never
happen[]” when a victim does not expect a blow.
46
The dissent asserts that this opinion takes the medical examiner’s
testimony out of context by stating that there was disputed evidence as to
whether the punch caused death. Dissenting opinion at 51 n.27. However, the
issue is not whether decedent died from the punch, but whether Petitioner
acted recklessly in striking decedent; in that regard, testimony regarding the
“unique” injury, would be a consideration in whether Petitioner acted
recklessly.
53
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In addition, as previously noted, while Respondent’s
witnesses who had invited decedent to camp with them and observed
the incident from a distance testified that Petitioner’s action
was unprovoked, there was contrary testimony. Reverio, who was
standing next to Petitioner at the time of the incident,
testified that after a disagreement, Reverio thought Petitioner
and decedent “were going to fight” when Petitioner punched
decedent once. Consequently, there was a dispute in the evidence
as to what had occurred and whether Petitioner acted in self-
defense.47 Thus, the evidence in this case was not so
overwhelming48 as to “outweigh” the effect of the misconduct and
47
The dissent focuses on the testimony of two witnesses, to the
exclusion of Reverio’s testimony. See dissenting opinion at 47. Reverio’s
testimony contradicted the testimony of Kaeo and Ako. Further, we do not
dispute the medical examiner’s testimony, see dissenting opinion at 50-51.
However, as stated, the hospital believed decedent’s cause of death was an
aneurysm.
48
As opposed to the dissent’s position that the evidence must be
only “very strong[,]” dissenting opinion at 46-47 (citing State v. Klinge, 92
Hawai#i 577, 593, 994 P.2d 509, 525 (2000), “overwhelming” evidence is the
precedential standard by which to assess the strength of the evidence against
a defendant. See Tuua, 125 Hawai#i at 17, 250 P.3d at 280 (“[T]he strength
of the evidence was not overwhelming and the credibility of the witnesses’
versions of events was the pivotal issue at trial.”); Mainaaupo, 117 Hawai#i
at 255, 178 P.3d at 21 (“[W]e think that the evidence in this case is not so
overwhelming that we are convinced that the DPA’s intrusion into [the
defendant’s] right to remain silent may not have contributed to his
conviction.”); see also Wakisaka, 102 Hawai#i at 516, 78 P.3d at 329 (“In
short, the evidence was not so overwhelming that we are convinced the
prosecution’s intrusion on [the defendant’s] rights under article I, section
10 of the Hawai#i Constitution may not have contributed to [the defendant’s]
conviction.”); Pacheco, 96 Hawai#i at 87, 26 P.3d at 586 (“[W]e cannot say
that the evidence against [the defendant] was so overwhelming as to render the
DPA's personal disparagements of him and vigorous and improper attack on his
credibility harmless beyond a reasonable doubt.”); Rogan, 91 Hawai#i at 415,
984 P.2d at 1241 (“[I]t can hardly be said that the case against [the
defendant], which hinged on the credibility of the Complainant, was so
overwhelming as to outweigh the inflammatory effect of the deputy prosecutor’s
comments.”); State v. Knight, 80 Hawai#i 318, 327, 909 P.2d 1133, 1142 (1996)
(continued...)
54
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to render the DPA’s improper comments harmless beyond a
reasonable doubt, as previously noted.49 Shabazz, 98 Hawai#i at
382, 48 P.3d at 629; cf. Pacheco, 96 Hawai#i at 83, 26 P.3d at
586 (“[W]e cannot say that the evidence against [the defendant]
was so overwhelming as to render the DPA’s personal
48
(...continued)
(“In regard to the third factor, the strength or weakness of the evidence
against the defendant, the evidence against [the defendant], as described
above, is overwhelming.”); State v. Samuel, 74 Haw. 141, 149, 838 P.2d 1374,
1379 (1994) (“Furthermore, there was overwhelming evidence in the record to
support the . . . verdict beyond a reasonable doubt[.]”); State v. Shabazz,
98 Hawai#i 358, 382, 48 P.3d 605, 629 (App. 2002) (“Hence, like the supreme
court in Rogan, we cannot conclude that the case against [the defendants],
which hinged on the credibility of the Complainant, was so overwhelming as to
outweigh the inflammatory effect of the deputy prosecutor’s comments.”)
(Internal citation and quotation marks omitted); State v. Schmidt, 84 Hawai#i
191, 203, 932 P.2d 328, 340 (App. 1997) (“Thus, in light of the overwhelming
evidence of [the d]efendant’s guilt, we conclude that those of the
prosecutor’s comments which were improper were harmless beyond a reasonable
doubt.”). Klinge is distinguishable. Klinge focused on whether the
misconduct prejudicially affected the defendant’s substantial rights under
plain error review; it did not, as here, analyze whether the error was
harmless beyond a reasonable doubt such that vacation is warranted. Id. at
593, 994 P.2d at 525 (“[I]n light of the nature of the prosecutor's statement,
the failure of defense counsel to object, and the strength of the evidence
against [the defendant], we hold that any error . . . by the prosecutor did
not prejudicially affect Klinge’s substantial rights.”) (Emphasis added.).
Thus, contrary to the dissent’s position, Klinge cannot be relied upon for the
proposition that the evidence need not be overwhelming in ascertaining whether
the misconduct is harmless beyond a reasonable doubt.
49
The dissent maintains that this opinion “focuses” on the fact that
“some evidence” contradicting Respondent’s evidence was introduced, which,
according to the dissent, is a “departure from this court’s harmlessness
jurisprudence[]” insofar as the “question” is whether Respondent’s evidence is
“strong enough to overcome the potential effect of the misconduct.”
Dissenting opinion at 50 (citing State v. Valdivia, 95 Hawai#i 465, 484, 24
P.3d 661 680 (2001); Klinge, 92 Hawai#i at 593, 994 P.2d at 525; Rogan, 91
Hawai#i at 415, 984 P.2d at 1241). Again, the “question” is whether the
State’s evidence, here, Respondent’s, is “so overwhelming as to outweigh the
[prejudicial] effect of the [improper] comments[,]” such that the improper
comments “might [not] have contributed” to the defendant’s conviction, as
noted supra. Rogan, 91 Hawai#i at 415-16, 984 P.2d at 1241-42 (emphasis
added). Second, despite the dissent’s assertion that the majority opinion
“focuses” on evidence that contradicts Respondent’s evidence, this opinion
considers the entire record, in arriving at the conclusion that improper
remarks might have contributed to the conviction.
55
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disparagements of him and vigorous and improper attack on his
credibility harmless beyond a reasonable doubt.”)50
D.
The prosecutor’s remarks brought the jury instructions
into disrepute, and uncorrected, such remarks “seriously affect
the fairness, integrity, [and] . . . public reputation of [the]
judicial proceedings,” Nichols, 111 Hawai#i at 334, 141 P.3d at
981. Hence, based on these three factors, “there is a reasonable
possibility[, then,] that [the DPA’s improper remarks] might have
contributed to [Petitioner’s] conviction,” Duncan, 101 Hawai#i at
278, 67 P.3d at 777, and the ICA gravely erred in concluding that
50
The dissent reaches the opposite conclusion by arguing the
evidence demonstrated that Petitioner was “reckless” and did not act in self
defense. Dissenting opinion at 47-48. According to the dissent, this
evidence consisted of two “independent” witnesses who stated that the attack
was unprovoked and unexpected and that Petitioner was under the influence of
methamphetamine, the medical examiner who testified that the injury resulted
from a punch that decedent did not anticipate, (this is rebutted supra), and
an “independent witness” who testified that Petitioner was larger than
decedent. Id. at 47.
First, there is no “overwhelming evidence” of recklessness, for
the reasons previously stated. Additionally, the two witnesses who believed
Petitioner to be under the influence of methamphetamine, by their own
admission, were under the influence of drugs themselves. Harold Kaeo had
smoked marijuana and had a shot of alcohol, and Nicole Ako stated that she was
“high on crystal methamphetamine.” In any event, Petitioner’s physical size,
alleged drug use, and the testimony of two witnesses apparently under the
influence of drugs themselves, would not present “overwhelming and
compelling,” State v. Toyomura, 80 Hawai#i 8, 27, 904 P.2d 893, 912 (1995),
evidence of recklessness that could be concluded, outweighed the prejudice
engendered by the prosecutor’s comments in final argument. In light of other
evidence that the injury was “unique” and Reveiro’s testimony regarding self
defense that is part of the record, the improper comments cannot be deemed
harmless.
Second, as to the dissent’s statement that the foregoing evidence
showed Petitioner did not act in self defense, aside from Reveiro’s testimony,
Petitioner’s “subjective[] belie[f,]” Augustin, 101 Hawai#i at 128, 63 P.3d at
1098, as to the circumstances regarding the use of force, would have had to be
considered by the jury. However, a reason Petitioner did not testify was the
court’s erroneous ruling on admission of the juvenile evidence.
56
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“the statements of the DPA were harmless beyond a reasonable
doubt[,]” Schnabel, 2010 WL 4546655, at *4.51
XIII.
In sum, the dissent maintains that judicial notice may
not be taken of HRS § 571-84(1); only plain error review is
permissible, plain error review should not be granted with
respect to the applicability of HRS § 571-84(1), and the
prosecutor’s remarks in final argument were harmless.
Specifically, the dissent asserts, (1) pursuant to HRE Rule 103,
Petitioner waived the argument that HRS § 571-84 precluded
admission of the juvenile evidence by failing to specifically
object on the ground that the admission of such evidence was
barred by HRS § 571-84, dissenting opinion at 3, 9-10; (2) HRE
202(b) does not allow this court to take notice of Petitioner’s
“potential objection,” id. at 3, 9; (3) the “argument” that HRS §
571-84 precluded admission of the evidence is not noticeable as
plain error, id. at 3, 26-31; (4) the court did not violate HRS §
51
The dissent asserts that as in State v. Sawyer, 88 Hawai#i 325,
329 n.6, 966 P.2d 637, 641 n.6 (1998), the court “‘effectively sustained’”
Petitioner’s objection to the improper remarks by reminding the jury that the
of the instructions on reasonable doubt and that “pity, passion and prejudice
have no play[.]’” Dissenting opinion at 47 n.25. In Sawyer, the prosecutor
told the jury during closing arguments not to “‘let the law try to cloud you
with all of these instructions when you look at it.’” Id. at 328, 966 P.2d at
640. Sawyer held that the court “effectively sustained and immediately cured
any error by stating that the ‘law has to be followed[.]’” In this case, the
court could not have “effectively sustained” Petitioner’s objection inasmuch
as it expressly overruled Petitioner’s objection. Also, a general reference
to an instruction on reasonable doubt did not specifically address the
denigration of the court’s instructions.
57
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571-84(h), id. at 32-38; and (5) the prosecutor’s closing
argument was improper, but was cured by the court’s instructions
to the jury, id. at 38-51.52
XIV.
The dissent’s first argument that Petitioner “waived”
any “argument” pertaining to HRS § 571-84(h) is incomplete. HRE
Rule 103(a)(1) provides that “[e]rror may not be predicated upon
a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and[,]” “[i]n case the ruling is
one admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground of objection, if
the specific ground was not apparent from the context[.]”
(Emphasis added.)
To reiterate, at trial, Petitioner sought to prevent
Respondent from admitting Dr. Camara’s testimony, arguing that
such evidence was not relevant, and that its probative value was
substantially outweighed by the risk of prejudice. Consequently,
and plainly, Petitioner did not “waive” his objection to the
admissibility of the juvenile evidence.53 Seemingly, the
52
Because this argument was addressed in footnotes accompanying the
analysis of prosecutorial misconduct, see supra, it is not discussed further.
53
Assuming, arguendo, Petitioner “waived” any argument pertaining to
HRS § 571-84, the court’s error would be subject to plain error review. As
stated both supra and infra, the court’s error is noticeable for plain error
under the facts of this case. For the same reasons, “a substantial right of
[Petitioner was] affected” as a result of the court’s error, as required by
HRE Rule 103(a)(1).
58
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dissent’s disagreement with this opinion, at least with respect
to objections, comes down to its belief that Petitioner was not
precise enough in objecting to the admission, of Dr. Camara’s
testimony. See dissenting opinion at 3, 9-10. “Case law from
our state indicates . . . that the purpose of requiring a
specific objection is to inform the trial court of the error.”
State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002).
However, Long explained that an appellate court will “consider a
meritorious objection not voiced to the trial judge” when “the
ground for exclusion should have been obvious to [the] judge and
opposing counsel[,]” 98 Hawai#i at 354, 48 P.3d at 601 (internal
quotation marks, citation, and emphasis omitted) (emphasis
added). Although Petitioner did not specifically raise HRS §
571-84(h), its applicability should have been “apparent from the
context[,]” HRE Rule 103(a)(1) of Petitioner’s objection.54
Applying Long’s rationale, the ground for exclusion in HRS § 571-
84 should have been obvious. Id.55
54
Also, this court has recently affirmed that general objections are
sufficient to preserve an error for appeal. Cf. State v. Walker, No. SCWC-
29659, -- P.3d --, 2012 WL 1139312, at *15 (Haw. Mar. 28, 2012) (noting that
as in Wheeler, 121 Hawai#i at 387, 219 P.3d at 1174, “in which the defendant
generally moved to dismiss on the ground that the charge failed to state an
offense without specifying which element of the offense was deficient[,]”
Walker’s general objection to the charge was sufficient to deem the charge to
have been objected to).
55
The dissent states that based on Petitioner’s objection in this
case, the applicability of HRS § 571-84 would not be “apparent or obvious” to
the court. Dissenting opinion at 10 n.5. To the contrary, the proposition
that juvenile evidence may not be used against the minor in subsequent
criminal proceedings has been well established in this jurisdiction. See HRS §
(continued...)
59
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XV.
The dissent’s second argument suggests that HRE Rule
202(b) does not allow this court to take judicial notice of HRS §
571-84. According to the dissent, “the doctrine of judicial
notice does not provide an alternative basis for an appellate
court to address [the] issue” of whether the use of evidence from
Petitioner’s juvenile proceedings was barred by HRS § 571-84, or
“to address a potential objection to the admissibility of
evidence which was not raised below.”56 Dissenting opinion at 3;
see also dissenting opinion at 14-25. With all due respect, the
dissent confuses the concepts of judicial notice and plain error.
Indisputably, judicial notice does not allow a court to take
notice of a “potential objection” or of error.57 Id. Judicial
notice, however, does allow this court to take notice of a
55
(...continued)
571-84; see also Nobriga, 56 Haw. at 77, 527 P.2d at 1271; Riveira, 92 Hawai#i
521, 993 P.2d 555.
56
We apply the neutral principle that a court should take judicial
notice of a law that is directly and obviously applicable and plainly
controlling. It is error for the court not to do so, without regard to
whether the prosecution or defendant would benefit by judicial notice. See
e.g., West, 95 Hawai#i at 26-27, 18 P.3d 884, 888-89 (holding that the trial
court must take judicial notice of the speed schedules, even where judicial
notice is not “expressly requested by counsel[,]” and the speed limits
properly noticed constitutes sufficient evidence in support of the
prosecution’s case).
57
Thus, judicial notice has nothing to do with whether “an issue
. . . is properly preserved” or “properly addressed” on appeal, see dissenting
opinion at 16, or to “notice arguments raised for the first time on appeal.”
Id. at 25. Similarly, this opinion does not take “judicial notice of an
evidentiary objection that was waived.” Id. at 19.
60
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statute, here, HRS § 571-84, even though it was not raised
below.58
As mentioned, West construed HRE Rule 202(b) as
allowing courts of this state to take judicial notice of statutes
even if not “expressly requested by counsel.” 95 Hawai#i at 27,
18 P.3d at 889. Moreover, Life of the Land, 61 Haw. at 418-19,
606 P.2d at 884-85, Eli v. State, 63 Haw. 474, 480, 630 P.2d 113,
115 (1981), Demond v. Univ. of Hawaii, 54 Haw. 98, 102-04, 503
P.2d 434, 437-38 (1972), establish this court’s power to take
judicial notice of enactments such as HRS § 571-84 not raised by
the parties at trial.
In West, the defendant was charged with speeding, and
during trial, the prosecution asked the circuit court to take
judicial notice of ordinances establishing the speed limit to
prove that the defendant’s speed was in excess of the limit. 95
Hawai#i at 24, 27, 18 P.3d at 886, 889. On appeal, this court
observed that HRE Rule 202(b) requires the courts to take
judicial notice of the content of the applicable ordinances even
when not expressly requested by counsel. Id. at 26-27, 18 P.3d
at 888-89.
58
The dissent asserts that judicial notice “establishes rules for
determining how courts can ascertain the content of the law.” Dissenting
opinion at 3 (emphasis omitted). We do not take issue with this. However,
HRE Rule 202 also presumes that “courts are at liberty to discover and apply
the law, whatever its source, to the issues at hand.” Manual on the Hawai#i
Rules of Evidence § 202-2 (Supp. 2011) (emphasis added).
61
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In Life of the Land, the plaintiffs, who opposed the
construction of a high rise condominium building, referred to the
“Kakaako Ordinance,” an ordinance that was to control
development, 61 Haw. at 394, 606 P.2d at 871, as “[s]ui generis”
and “the only ordinance of its kind[,]” id. at 417-18, 606 P.2d
at 884. However, this court took judicial notice of twenty-five
other ordinances, despite the fact that only two were in the
appellate record, to explain the City and County of Honolulu’s
land development and procedure, and to reject the plaintiffs’
assertion that the approval of development was invalid. Id. at
422, 606 P.2d at 886. The parties had not asked the court to
review those ordinances, nor had they discussed the ordinances in
their briefs. Id. at 416, 418, 419, 606 P.2d at 883, 884, 885.59
59
The dissent asserts that the instant case is different from Life
of the Land because Life of the Land did not involve taking notice of “an
evidentiary objection that was waived.” Dissenting opinion at 19. First, to
reiterate, the concept of judicial notice has nothing to do with waiver and
must not be confused with plain error. In addition, although the dissent
states that there is an “evidentiary framework” in place under which parties
must specifically object or waive the objection, id. at 25, in fact, if a
party fails to raise any argument, evidentiary or otherwise, that argument is
generally deemed waived. See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d
940, 947 (2004) (“As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on appeal[.]”)
Because the ordinances in Life of the Land were neither in the record nor
raised in their briefs, under the dissent’s approach the defendants presumably
“waived” any argument regarding those twenty-five ordinances. Dissenting
opinion at 3, 17. Nevertheless, in Life of the Land, this court took judicial
notice of the ordinances for substantive purposes. That case established that
this court may take judicial notice of sources of law when such notice
obviously bears directly on the merits, even if such sources were not raised
below or by the parties.
62
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In Eli, also instructive, the defendant sought post-
conviction relief pursuant to HRPP Rule 40, arguing, inter alia,
that his guilty plea was not made knowingly, intentionally, and
voluntarily. 63 Haw. at 480, 630 P.2d at 115 (1981). As to the
foregoing claim, Eli noted that this court must “look at the
entire record in order to determine whether the [defendant’s]
claims or recantation are credible and worthy of belief.” Id. at
477, 630 P.2d at 116. “A silent record or a minimal record
places the burden on the State to prove waiver.” Id. at 477,
478, 630 P.2d at 116. But the record of the proceeding in which
the defendant entered his plea was never submitted into evidence
during the Rule 40 proceedings.” Id. at 478, 630 P.2d at 116.
Eli stated that “[o]rdinarily, matters not presented to
the trial court may not be considered by the appellate court on
appeal.” Id. Eli declared, however, that “[w]here the equity of
the situation dictates, we will use our discretion to take
judicial notice of matters of which courts may properly take
judicial notice but which are not part of the record on appeal.”
Id. (emphasis added). This court took judicial notice of the
transcript of the proceeding in which the defendant had pleaded
guilty and determined that the defendant’s plea was made
voluntarily and intelligently.60 See id. We conclude in line
60
The dissent suggests that Eli took judicial notice on appeal
because it was an HRPP Rule 40 petition and, thus, required the circuit court
(continued...)
63
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with Eli that “equity . . . dictates” notice of HRS § 571-84
under the circumstances of this case.
In Demond, the plaintiff challenged the denial by the
Labor and Industrial Relations Appeal Board (Board) of her
workmen’s compensation claim against the University of Hawai#i
(UH), for injuries incurred ten years earlier while she was
employed by UH, but working in California. 54 Haw. at 99, 503
P.2d at 435. The plaintiff argued on appeal that although she
had not given notice to UH of her injuries sooner, UH failed to
disclose the existence and availability of workmen’s compensation
benefits as required by California law. Id. at 102, 503 P.2d at
437.
This court noted Demond neither argued that California
law applied nor indicated a desire to take advantage of
California law in the proceedings below. Id. at 102-03, 503 P.2d
at 437. Demond said that “[w]e have held in numerous cases that
this court on appeal will not consider issues beyond those that
are properly raised in the trial court[,]” and applied that
principle to workmen’s compensation proceedings. Id. at 103, 503
P.2d at 437. Demond acknowledged, however, that this court had
the “power to take judicial notice of applicable foreign law, or
60
(...continued)
to look at the entire record. Dissenting opinion at 21-22. But Eli’s
decision to take judicial notice of a “matter[] not presented to the trial
court,” by its own language, hinged on taking judicial notice “where equity of
the situation dictates,” 63 Haw. at 478, 630 P.2d at 116.
64
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to remand for its application[.]” Id. at 103, 503 P.2d at 437-38
(citing HRS § 623-1 (repealed 1980).)61
Despite the dissent’s argument that these prior cases
are “factually distinguishable[,]” dissenting opinion at 19, the
cases establish the principle that this court may take judicial
notice on appeal, even for substantive purposes. See West, 95
Hawai#i at 27, 18 P.3d at 889, Life of the Land, 61 Haw. at
418-22, 606 P.2d at 884-86, Eli, 63 Haw. at 476-78, 630 P.2d at
115-16, and Demond, 54 Haw. at 103, 503 P.2d at 437-38.62 Taking
judicial notice of HRS § 571-84 is appropriate and necessary
because the applicability of HRS § 571-84 was direct and obvious,
61
HRS § 623-1 provided:
§ 623-1 Judicial notice of common law, state laws,
and other statutes; ruling reviewable. Every court of this
State shall take judicial notice of the common law and
statutes of every state, territory, and other jurisdiction
of the United States. The court may inform itself of such
laws in such manner as it may deem proper, and the court may
call upon counsel to aid it in obtaining information. The
determination of such laws shall be made by the court and
not by the jury, and shall be reviewable.
62
This court determined that under the specific circumstances in
Demond, the plaintiff “should not at this late stage be allowed to rely on the
law of California to establish her claim to benefits in this State.” 54 Haw.
at 103, 503 P.2d at 438. The dissent maintains that in light of the
foregoing, Demond supports the position that this court may not take judicial
notice of HRS § 571-84 since it was not raised below. See dissenting opinion
at 22-25. In Demond, at all times prior to the appeal, the plaintiff “not
only failed to rely on California law but affirmatively argued that she was
eligible for compensation under Hawaii law.” Id. at 103, 503 P.2d at 438
(emphasis added).
This case is unlike Demond. In this case, Petitioner did not
“affirmatively argue” at trial, id. at 103, 503 P.2d at 438, that HRS § 571-84
was inapplicable, or that the evidence given in his juvenile proceedings was
admissible. Rather, Petitioner consistently maintained that such evidence was
inadmissible. Moreover, in Demond, the plaintiff sought application of
foreign law that was not directly and obviously applicable and plainly
controlling. But we hold that judicial notice of HRS § 571-84 is controlling
in light of the facts of this case.
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and the statute plainly controlled in light of the facts of this
case. In that regard, waiver of any “argument” by the parties
has no relevance. See, e.g., Stenger, 122 Hawai#i at 282, 226
P.3d at 452.63 Thus, the court erred in failing to take notice
of HRS § 571-84 and, hence, we take notice of the statute.64
Next, the dissent states that HRS § 571-84 is
“analytically indistinguishable” from the HRE and, hence, under
our holding, trial courts must sua sponte consider all sources of
law identified in HRE Rule 202(b), including the HRE since it is
codified by statute. Dissenting opinion at 12-13, 14. We do not
so hold. First, HRS § 571-84 is not a rule of evidence. A
narrow construction of HRS § 571-84(h) as solely relating to the
admissibility of evidence would be wrong. See id. at 14. HRS §
571-84(h) establishes, by statute, a state policy, as explained
supra, of excluding certain juvenile proceedings from subsequent
legal cases in order to protect and rehabilitate juveniles.
Moreover, the dissent’s view that this opinion requires
trial and appellate courts to notice all errors grounded in one
63
HRE Rule 103(a) does not govern when, or under what circumstances,
this court may take judicial notice of a statute.
64
To reiterate, we do not take judicial notice of the court’s error,
as the dissent seemingly maintains. Dissenting opinion at 27. The issue is
not whether Petitioner failed to object to the admission of Dr. Camara’s
testimony on the ground that such admission would violate HRS § 571-84(h).
Rather, it is apparent that judicial notice of HRS § 571-84(h) should have
been taken. Consequently, State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675
(1988) and Republic v. Nenchiro, 12 Haw. 189, 220 (Rep. 1899) cited by the
dissent for the proposition that parties must raise objections to evidentiary
errors, dissenting opinion at 12-13, are not relevant.
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of the sources of law identified in HRE Rule 202, without regard
to whether substantial rights were affected, id. at 15, is
mistaken. This opinion quite clearly does not require courts to
“notice any error, even those that do not implicate substantial
rights.” Id. (emphasis in original). Where, as in this case,
the court fails to notice a statute that obviously and undeniably
governs, the failure of which has affected the substantial rights
of a defendant, this court will apply the statute and vacate for
the court’s error.
XVI.
The dissent’s third argument is that the court’s error
in failing to apply HRS § 571-84(h) is not noticeable for plain
error because (1) “objections”65 to the admission of incompetent
evidence that the defense failed to raise at trial are
“generally” not subject to plain error review, id. at 27, and (2)
defendant’s right to testify was not implicated in this case, id.
at 29. Because we indicate that plain error may be an
65
To emphasize, the issue is not whether Petitioner “object[ed]” to
the admission of evidence (for the failure to object is a prerequisite for
application of the plain error rule), but whether the court erred in
indicating it would grant admission of the juvenile evidence, so as to affect
the substantial rights of the defendant. State v. Miller, 122 Hawai#i 92,
100, 223 P.3d 157, 165 (2010) (noting that, if error in the proceedings
adversely affected the substantial rights of the defendant, the error is plain
error); see HRPP Rule 52(b) (2008) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court.”)
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alternative ground for vacation, respectfully, we respond to what
appears to be the dissent’s wrong view of the plain error rule.
A.
In tandem with the “purpose” of any “waiver rule[]” is
the obligation to follow the law to ensure fairness and
justice.66 See State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705,
712 (1982) (noting that the “inherent power of the court is . . .
the power to administer justice”). It is evident that in any
scenario, this court may notice errors affecting a defendant’s
substantial rights, such as in this case. This is true even
where the error may be related to the admissibility of evidence.
See State v. Pastushin, 58 Haw. 299, 302, 568 P.2d 504, 506
(1977) (stating that “where inadmissible hearsay is so
prejudicial as to deprive the defendant of his constitutional
right to a fair trial, its admission will constitute ground for
reversal, although defense counsel has failed to object”); cf.
State v. Grindles, 70 Haw. 528, 530, 777 P.2d 1187, 1189 (1989)
(noting for plain error, the “trial court’s action in compelling
[the defendant] to put on his evidence prior to the conclusion of
the State’s evidence[,]” because such error “violated his due
process right to a fair trial”). Under the facts and
66
It should be noted that the dissent maintains this court may not
take judicial notice of HRS § 571-84, and the court’s failure to apply HRS §
571-84(h) is not noticeable for plain error. The result is that the bar in
HRS § 571-84(h) would be negated. Respectfully, the dissent’s position would
result in this court being complicit in a violation of HRS § 571-84(h).
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circumstances of the cases cited to by the dissent,67 the
defendants’ substantial rights were not affected, and therefore,
plain error did not apply. On the other hand, in the instant
case, the court’s erroneous ruling infringed upon Petitioner’s
right to testify.
In fact, plain error review does apply to erroneous
evidentiary rulings that affect a defendant’s substantial rights.
In State v. Santiago, 53 Haw. 254, 261, 492 P.2d 657, 662 (1971),
this court examined whether the prosecution’s introduction of the
defendant’s prior convictions to impeach his credibility violated
the defendant’s constitutional right to testify in his own
defense. Concluding that it did, and, thus, that plain error
review was appropriate, this court emphasized that it was
“concern[ed]” that admission of prior convictions would “compel
[the defendant] to forego his privilege to testify.” Id. at 260,
492 P.2d at 661.68 Similarly, in the instant case, the court’s
ruling “compel[led Petitioner] to forego” testifying insofar as
he expressly stated that he did not testify in part due to the
67
State v. Wallace, 80 Hawai#i 382, 410, 910 P.2d 695, 723 (1996)
and State v. Uyesugi, 100 Hawai#i 442, 463-64, 60 P.3d 843, 864-65 (2002).
68
The dissent notes that the instant case does not “implicate” the
concerns raised in Santiago because Respondent “offered to introduce the
evidence without mentioning the result of the adjudication.” Dissenting
opinion at 28 n.12. With all due respect, the “adjudication” itself is not at
issue inasmuch as no party or the court took the position that the
adjudication in Petitioner’s juvenile proceeding was admissible. The
dissent’s distinction, therefore, is inapposite.
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court’s ruling, thereby infringing upon his “substantial right”
to testify.69
Additionally, State v. Cummings, 49 Haw. 522, 528, 423
P.2d 438, 442 (1967), demonstrates that evidentiary rulings, if
affecting a defendant’s substantial rights, can be reviewed for
plain error. There, the defendant was convicted, after a jury-
waived trial, of robbery in the second degree. Id. at 522, 423
P.2d at 440. At trial, a detective testified that, subsequent to
his arrest, the defendant told the detective that he was
“look[ing] for trouble with haoles[.]” Id. at 525, 423 P.2d at
441. There was no objection to the detective’s testimony. The
circuit court “sua sponte” addressed whether it could consider
the oral statement in light of the fact that a statement elicited
by police during an interrogation cannot be used against the
defendant, if the defendant had requested and had been denied an
opportunity to consult with a lawyer. Id. at 526, 423 P.2d at
441.
69
The dissent suggests that plain error is inappropriate because
Petitioner did not make an “offer of proof as to what his testimony would have
been.” Dissenting opinion at 31. “[T]he purpose of an offer of proof . . . is
to provide an adequate record for appellate review and to assist the trial
court in ruling on the admissibility of evidence.” State v. Pulse, 83 Hawai#i
229, 248, 925 P.2d 797, 816 (1996) (citing 1 Wigmore, Evidence § 20(a)
(Tillers rev. 1983)) (emphasis in original). In this regard, Petitioner
stated on the record that if Respondent asked Petitioner on cross-examination
whether he knew a single punch “could,” cause death, Petitioner’s “answer
[would] be ‘no.’” Thus, no offer of proof was necessary inasmuch as the
foregoing plainly “assist[ed]” and was considered by “the trial court in
ruling on the admissibility of [the] evidence” from Petitioner’s juvenile
proceedings, and, as a result, there is “an adequate record for appellate
review” as to what Petitioner would have testified to. Id.
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This court, noting that “the alleged error” could be a
“matter not raised[]” insofar as “the question of the
admissibility of defendant’s damaging statement [was] not
properly presented for the trial judge’s ruling, nor specified as
error in this appeal,” nevertheless reviewed for plain error
because the “[e]rroneous admission of evidence may constitute
plain error if a fair trial of the accused was thereby impaired,
or if it substantially prejudiced the accused.” Id. at 528, 423
P.2d at 442 (internal quotation marks, citations, and parentheses
omitted). In the instant case, as recounted, the erroneous
ruling that would admit improper evidence affected Petitioner’s
substantial right to testify.70 See Domingo, 69 Haw. at 70, 733
P.2d at 692 (stating that, where “the introduction of the
evidence in question [is] prohibited by statute, it constitute[s]
plain error and is noticeable by this court”).
B.
As to (2), the dissent disagrees that Petitioner’s
right to testify was infringed upon, emphasizing that (a) the
court’s ruling was subject to change, (b) Petitioner could have
testified and refrained from asserting that he did not know a
70
The dissent emphasizes that Petitioner stated on the record that
the court’s ruling was “‘one [of] the factors’” Petitioner considered in
deciding not to testify, and suggests this should be considered in our plain
error analysis. Dissenting opinion at 33-34. We respectfully reject the
plain error analysis posited by the dissent under which this court would need
to quantify the effect of a particular error on the defendant’s fundamental
rights. The error need only “affect[ a] substantial right[]” to be noticed
for plain error. (Emphasis added.) HRPP Rule 52(b).
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single punch would cause a substantial risk of death, and (c) the
court’s ruling was “‘one of the factors’” contributing to
Petitioner’s decision not to testify. Dissenting opinion 31.
As to (a), the court’s in limine ruling was not subject
to change insofar as the court ruled that it would allow the
cross-examination and later reconfirmed its ruling after the
prosecution had rested its case. The court stated that it would
“give latitude[]” to the prosecution to discuss the issue, over
the defense’s “objection[,]” and explained that it “would allow”
on cross-examination the question whether Petitioner knew that
one punch “could” cause death. After defense counsel stated that
Petitioner did not testify in part because Respondent would be
allowed to introduce Dr. Camara’s testimony, the court
acknowledged that Petitioner’s statement was “accurate” and that
it would “allow [the prosecutor] to get into the earlier
[juvenile] situation[,]” thereby reconfirming that the court
would have allowed the admission of such evidence if Petitioner
testified. Thus, the ruling did not change. See U.S. v. Greer,
791 F.2d 590, 594 (7th Cir. 1986) (reviewing the error of an in
limine ruling even where the defendant failed to testify because
there was a complete record insofar as the legal, not factual,
“determinative question[]” was “whether a confession elicited in
violation of a defendant’s [F]ifth [A]mendment rights may ever be
used for impeachment purposes”).
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As to (b), respectfully, criticism in response to the
Supreme Court’s decision in Luce v. United States, 469 U.S. 38,
41-43 (1984), highlights the flaw in the dissent’s reasoning. In
Luce, the Supreme Court held that a defendant must testify to
preserve his or her right to appeal a trial court’s in limine
ruling that prior convictions are admissible for impeachment
purposes. 469 U.S. 38, 40-42 (1984). “Luce has been subjected
to little but steady and unrelenting criticism[.]” James Joseph
Duane, Appellate Review of In Limine Rulings, 182 F.R.D. 666
(1999). One criticism of Luce, out of many, is that it “forces
upon an accused what is arguably an unfair choice; testify under
circumstances where it is virtually certain the prosecutor will
regale the jury with tales of prior convictions, or refrain from
testifying, deprive the jury of the accused’s side of the story,
and lose all chance to appeal.” 28 Charles Alan Wright, et al.,
Federal Practice and Procedure: Evidence § 6119 at 123 n.49 (1st
ed. 1993). Since Luce, the Supreme Court has formally settled
into the position that a defendant has a right to testify in his
own behalf, Rock v. Arkansas, 483 U.S. 44, 49-51 (1987), and
“[i]n a host of other contexts, . . . has held that a
constitutional right may be violated, even where the accused is
not strictly forbidden from exercising that right, as long as
some trial ruling undermines the right by improperly and unfairly
making its exercise costly[,]” Duane, Appellate Review of In
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Limine Rulings, 182 F.R.D. 666 (emphasis added) (internal
quotation marks omitted). Indeed, requiring the defendant to
testify in order to preserve the issue for appeal is wrong, since
it fails to recognize “the significance that such impeachment has
on the defendant’s decision concerning the testimony.” Paul F.
Rothstein, Federal Rules of Evidence: A Fresh Review and
Evaluation, 120 F.R.D. 299, 363 (1987).
States declining to adopt Luce have reasoned that
the problem of meaningful review is unfounded when the
record sufficiently demonstrates, through an offer of proof,
the nature of the defendant’s proposed testimony and that
the defendant refrained from testifying when faced with
impeachment by a prior conviction. Under such conditions, a
reviewing court would have a sufficient record to conduct a
harmless error analysis.
Warren v. State, 124 P.3d 522, 527 (Nev. 2005) (emphases added).
In the instant case, it would be unwise to “apply” a rule that,
in effect compelled Petitioner to make an “unfair choice” of
either testifying under circumstances where it was “virtually
certain” the prosecutor would “regale the jury” with Dr. Camara’s
testimony, or remain silent and “deprive the jury” of his
testimony and “lose all chance of appeal.” 28 Charles Alan
Wright, et al., supra, § 6119 at 123 n.49. Of course, as noted
previously, HRS § 571-84 bars the admission of evidence from a
juvenile proceeding in the instant case, precluding any effort to
“regale the jury” with Dr. Camara’s testimony, further
underscoring the inapplicability of Luce’s rationale to this
case.
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As to (c), as discussed supra, Petitioner’s testimony
was critical to his claim of self-defense insofar as the defense
is based on the defendant’s subjective belief and state of mind
with respect to the facts and circumstances surrounding his or
her use of force. Although the effect of the court’s ruling on
Petitioner’s decision not to testify cannot be measured with
precision, any error that infringes on a substantial right such
as the right to testify may be noticed for plain error. See
Staley, 91 Hawai#i at 286, 982 P.2d at 915 (“Because the circuit
court’s error infringed upon [the defendant’s] constitutional
right to testify, we address it as plain error”) (emphasis
added); see also Wakisaka, 102 Hawai#i at 515, 516, 78 P.3d 317,
at 329).
XVII.
The dissent’s fourth argument that the court’s ruling
was not in violation of HRS § 571-84, maintains that (1) no
appellate court has ruled on whether HRS § 571-84 “precludes a
defendant’s cross-examination regarding juvenile matters in order
to rebut testimony by the defendant which the State argues was
false or misleading[,]” dissenting opinion at 32; (2) “other
state courts” have recognized that a defendant may not use
“similar statutes to shelter such testimony from adversarial
testing,” id.; (3) the court’s ruling was “contingent on
[Petitioner] ‘opening the door’” by testifying that he did not
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know that one punch could kill, id. at 36; and (4) in the in
limine ruling the court “offered the option of introducing the
relevant evidence without reference to the adjudication or its
result[,]” id. at 37.71
A.
As to (1), respectfully, HRS § 571-84 plainly and
unambiguously provides that such evidence may not be used “for
any purpose” whatsoever. Nobriga and Riveira I & II have already
directly confirmed that evidence, or what the dissent refers to
as “juvenile matters[,]” dissenting opinion at 32, from a
juvenile proceeding are inapplicable in any adversary proceeding.
Nevertheless, the dissent contends that Nobriga did not deal with
the question of whether “and to what extent evidence from prior
juvenile adjudications was admissible at trial[,]” but held that
“such evidence” was available for use in sentencing. Id. at 32
n.15. But Nobriga expressly stated that the juvenile evidence is
inadmissible in an “adversary proceeding.” 56 Haw. at 79, 527
P.2d at 1272. In that regard, it expressly “ruled” on the issue
of “whether” evidence from prior juvenile adjudications was
admissible, see dissenting opinion at 32, and concluded that it
was not.
71
Luce, see supra, is persuasive as to the dissent’s fourth argument
which is therefore, not addressed further.
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Riveira I & II also confirmed that the subject evidence
is inadmissible in a criminal trial. In that case, this court
adopted the analysis set out in the Riveira I dissent, including
that portion of the dissent stating that, pursuant to HRS § 571-
1, any evidence used in juvenile law violation proceedings
“cannot be offered as evidence for any purpose whatever [] in any
court[,]” Riveira I, 92 Hawai#i at 559, 993 P.2d at 593 (Acoba,
J., dissenting) (internal quotation marks and citation omitted)
(brackets in original).72
B.
As to (2), despite the controlling precedent from this
jurisdiction flatly prohibiting the use of the challenged
evidence, the dissent looks to three cases from outside this
jurisdiction for support, suggesting that such evidence may be
admissible. See dissenting opinion at 32-36. With all due
respect, the dissent’s reliance on such cases overlooks the
72
According to the dissent, Riveira II’s holding that “a juvenile
adjudication” may not be treated as a “conviction for purposes of applying a
repeat offender sentencing statute[,]” makes it distinguishable from the
instant case. Dissenting opinion at 32 n.15. But the ICA dissent’s reasoning
in Riveira I, that was adopted in Riveira II, is directly applicable. There,
because the express language of HRS § 571-1 provides that no adjudication by
the family court shall be deemed a conviction, such an adjudication could not
be treated as a conviction. Riveira I, 92 Hawai#i at 559, 993 P.2d at 593;
see Riveira II, 92 Hawai#i at 523-24, 993 P.2d at 556-57 (adopting dissent’s
observation in Riveira I that treating a juvenile adjudication as a criminal
conviction is violative of the provisions in HRS chapter 571 and a rejection
of the family court system). Similarly, HRS § 571-84 expressly prohibits the
admission of evidence from a juvenile proceeding for any purpose whatsoever,
and, “in the absence of any specific language in a statute to the contrary,”
Riveira I, 92 Hawai#i at 559, 993 P.2d at 593, HRS § 571-84(h) “control[s,]”
id.
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fundamental fact that HRS § 571-84(h) mandates the exclusion of
such evidence, despite what may be culled from the law of other
jurisdictions. Moreover, two of the three cases cited are not
contrary,73 and the third case, State v. Rodriguez, 612 P.2d 484,
73
In Lineback v. State, 301 N.E.2d 636, 637 (Ind. 1973), the Indiana
Supreme Court determined that a character witness can be asked whether he knew
the defendant was an “incorrigible juvenile” so that the “jury may determine
whether the so-called character witness is, in fact, conversant with the
defendant’s reputation in the community . . . .” The dissent maintains in
Lineback, stands for the general proposition that evidence from juvenile
proceedings may be admissible in “certain narrow circumstances.” Dissenting
opinion at 33 n.16. But unlike the statute in Lineback which precluded our
statute, HRS § 571-84, prohibits the use of evidence from juvenile proceedings
“for any purpose whatever,” with the exception of use in subsequent juvenile
proceedings of the type set forth under the statute.
In addition, the dissent states that Lineback suggests that “‘an
entirely different principle of law’ arguably prevails if a defendant gives
false or misleading testimony.’” Dissenting opinion at 35 n.16 (quoting
Lineback, 301 N.E.2d at 637). First, Lineback more specifically stated that
“‘an entirely different principle of law prevails when a defendant directly
places his reputation in the community before the jury through character
witnesses.’” 301 N.E.2d at 637. Elaborating on that “different principle of
law[,]” id. Lineback explained that, “‘[w]hen a defendant tenders his supposed
good character in evidence, he thereby invites scrutiny and disclosure of
specific instances of his misconduct to depreciate the weight of the testimony
of his character witness, although the answers elicited may incidentally
impute to him other guilt.’” Id. (quoting Jordan v. State, 110 N.E.2d 751,
753 (1953)). Lineback explained, “[a]lthough juvenile matters are secret and
the results thereof not open to public scrutiny as a general proposition, a
defendant who places his reputation before the jury through character
witnesses opens his entire life to scrutiny.” Even if this jurisdiction had
adopted a similar exception to the prohibition set forth in HRS § 571-84(h),
such exception would not be implicated under the facts of this case.
Petitioner did not “directly place[] his reputation in the community” thereby
opening “his entire life to scrutiny.” Id. Lineback is thus inapposite.
Also, subsequent to Lineback, the Indiana Supreme Court determined
that such questioning “is proper only as a means of testing the witness’
actual knowledge of the defendant’s general reputation in the community, and
not as a means of discrediting the defendant or of proving the truth of the
assertion.” Randolph v. State, 378 N.E.2d 828, 833 (Ind. 1978) (emphasis
added). Insofar as the instant case did not involve the attempted admission
of evidence as a means of testing a character witness’s “actual knowledge” of
reputation evidence, Lineback is inapplicable.
In State v. Marinski, 41 N.E.2d 387, 388 (1942), “the
defendant[,] upon his own insistence and over the prosecuting attorney’s
objection[,]” testified as to how he spent the previous years of his life, but
failed to mention that he was incarcerated for juvenile delinquency.
(Emphasis added). The prosecutor, on cross-examination, asked about this part
of the defendant’s history. The Ohio court relied heavily on the fact that
because the “defendant himself” “insisted upon narrating the story of his
(continued...)
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486 (Ariz. 1980), which the dissent maintains is “particularly
instructive[,]” dissenting opinion at 34, is in fact inapposite.
There, the Arizona court held that “juvenile records” are
admissible when “the defendant presents favorable evidence
regarding his juvenile history[.]” 612 P.2d at 487.
The Arizona court was applying a statute, unlike the
one in the instant case, that provided in pertinent part that
“[t]he disposition of a child in the juvenile court may not be
used against the child in any case or proceeding in any court
other than a juvenile court[.]” Id. at 486 (emphasis added).
The dissent concedes that the Arizona statute is narrower than
HRS § 571-84 insofar as it does not prohibit “[e]vidence given
73
(...continued)
previous years[,]” the prosecutor could question the defendant about the
testimony. Contrary to the dissent’s suggestion, see dissenting opinion at
35, in this case, Petitioner did not “insist upon narrating the story of his
previous years.” Marinski, 41 N.E.2d at 388. In fact, Petitioner “insist[ed
that there be no mention of his “previous years.” Id.
Furthermore, Malone v. State, 200 N.E. 473, 477 (1936), which was
discussed in Marinski, is directly applicable to this case. There, the
prosecutor asked the defendant if he had “wrecked a railroad train[,]” which
was a “matter[]” “disposed of” in juvenile court. Id. The Ohio Supreme Court
explained that the “defendant was being examined as to matters which had been
the subject of proceedings in the juvenile court,” id. at 478, and held that
the questioning was improper inasmuch as “the law prohibits the use of
juvenile court proceedings, or of proof developed thereon, against a child in
any other court to discredit him or to mark him as one possessing a criminal
history[,]” id. (emphases added).
Similarly, in the instant case, the prosecutor would have
questioned Petitioner about “matters[,]” i.e., Dr. Camara’s testimony, that
were “developed” in a prior juvenile proceeding, to “discredit” Petitioner,
and, thus, the evidence was inadmissible. Although the dissent attempts to
distinguish Malone, see dissenting opinion at 35-36 n.17, noting that the
prosecutor in that case pointed to several matters in the defendant’s juvenile
proceedings, Malone’s decision did not hinge on the number of “matters which
had been the subject of proceedings in the juvenile court.” Id. at 452. The
reference to a single matter from those proceedings would have been improper
under Malone. Likewise, under HRS § 571-84(h), the use of any evidence from a
defendant’s juvenile proceedings is plainly prohibited.
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in” juvenile proceedings, HRS § 571-84(h), but maintains that the
“reasoning” applies because Rodriguez stands for the proposition
that even a seemingly absolute bar on the admission of juvenile
evidence must yield to competing concerns on occasion.
Dissenting opinion at 35-36 n.19. However, unlike HRS § 571-
84(h), the statute at issue in Rodriguez did not expressly
provide that the disposition of the minor in the juvenile court
may not be used against the minor “for any purpose whatever[.]”
In view of the foregoing statutory language in HRS § 571-84(h),
the dissent’s approach would run counter to the express directive
in the statute.
C.
In connection with (3), the dissent maintains that the
ruling was “contingent on” Petitioner “opening the door” on
direct examination by testifying that he did not know that one
punch could kill. Dissenting opinion at 36. According to the
dissent, because Dr. Camara stated that “a punch and some kicks
carried a substantial risk of death[,]” it would be reasonable
that Petitioner “should have known” that a single unexpected
punch also carried such a risk. Id.
Respectfully, this is wrong. Initially, inasmuch as
HRS § 571-84(h) expressly prohibits the admission of evidence,
irrespective of the substance of his testimony, Petitioner could
not “open” any “door” that would have admitted the evidence from
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the prior juvenile proceeding. Despite the court’s ruling, such
evidence was barred.74 See Nobriga, 56 Haw. at 79, 527 P.2d at
1272 (expressly stating that the evidence is inadmissible in an
“adversary proceeding”); cf. Santiago, 53 Haw. at 260, 492 P.2d
at 661 (“[T]o convict a criminal defendant where prior crimes
have been introduced to impeach his credibility as a witness
violates the accused’s constitutional right to testify in his own
defense.”). HRS § 571-84(h) establishes a state policy that
evidence in a family court juvenile proceeding is inadmissable in
any adversary proceeding in other courts because the core
purposes of juvenile proceedings are to protect and rehabilitate
the juvenile.
In any event, realistically, Petitioner would not have
“opened the door”75 to the use of the juvenile evidence on direct
74
The dissent disagrees with the proposition that Petitioner could
not have “opened the door” to the use of the juvenile evidence because HRS §
571-84 completely bars the use of such evidence under all circumstances. The
dissent contends that there is a distinction between “using a privilege as a
as a ‘sword’ rather than merely a ‘shield.’” Dissenting opinion at 36 n.20
(emphasis added). In light of the plain language of HRS § 571-84 prohibiting
the use of juvenile evidence “for any purpose[,]” the barring of evidence is
not a “privilege” similar to the “physician-patient privilege” as asserted by
Petitioner, and so the shield/sword reference is not apt. Id. Because HRS §
571-84 is not a “privilege,” State v. Peseti, 101 Hawai#i 172, 180, 65 P.3d
119, 127 (2003), cited by the dissent, see id., in which this court stated
that the statutory privileges “may often give way to a strong public
interest[,] is inapplicable. Moreover, Peseti held “that, when a statutory
privilege interferes with a defendant’s constitutional right to cross-examine,
then, upon a sufficient showing by the defendant, the witness’ statutory
privilege must, in the interest of the truth-seeking process, bow to the
defendant’s constitutional rights. Id. at 181, 65 P.3d at 128. The dissent
does not point to a right of constitutional magnitude to which HRS § 571-84(h)
must give way.
75
“Opening the door” has been defined as where “the party introduces
evidence or takes some action that makes admissible evidence that would have
(continued...)
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examination. It was not Petitioner that sought to introduce Dr.
Camara’s testimony in this case but Respondent that sought to
admit Dr. Camara’s testimony in its case-in-chief. The court’s
ruling, although it would have disallowed Respondent from
introducing the evidence in its case-in-chief would have allowed
Respondent to use the evidence to impeach Petitioner on cross-
examination. Without any reference to the juvenile incident or
the evidence by Respondent, Petitioner could not have “opened the
door” to its use.
In connection with (4), the dissent suggests that
because “HRS § 571-84(h) does not apply absent an adjudication[,]
. . . [i]t would follow that . . . the admission of information
relating to [the] misconduct” of the juvenile who was adjudicated
would be admissible in adult adversarial proceedings because
“[o]therwise a juvenile who was adjudicated would stand in a
substantially better position at his adult trial than one who was
not adjudicated, despite having engaged in the same conduct.”
Dissenting opinion at 37-38. It should be apparent, however,
that there would be even more reason for the court to exclude
75
(...continued)
previously been inadmissible; e.g., when a criminal defendant introduces
evidence of his good character, he ‘opens the door’ to prosecution evidence of
bad character.” 21 Charles Alan Wright, et al., Federal Practice and
Procedure: Evidence § 5039 at 829 (2d ed. 2000); State v. McElroy, 105
Hawai#i 352, 357, 97 P.3d 1004, 1009 (2004) (“When a defendant testifies to
certain facts or issues during his direct examination, he ‘opens the door’ to
further inquiry into those matters on cross-examination.”) (Internal
quotation marks and citation omitted.)
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reference to the “misconduct[,]” id., of a juvenile where he or
she was not adjudicated a law violator. The dissent suggests,
nevertheless, that evidence of the misconduct, without the
adjudication of a law violation, should be admissible. This
would contravene the ban against use of the evidence for any
purpose whatsoever in HRS § 571-84(h). The same would apply to
efforts of admitting “bad acts” under HRE Rule 404(b).
Dissenting opinion at 38 n.22.
E.
Ultimately, in any event, it would not be a “reasonable
inference” that Petitioner “should have known,” based on Dr.
Camara’s testimony, that one punch could have caused death. See
HRE Rules 403, 404. As stated previously, Dr. Camara did not
expressly testify that punching and kicking someone several times
in the face could cause a substantial risk of death. The State
asked Dr. Camara, “[B]ased on your education, training and
experience, with respect to the injuries to [complainant] . . . ,
did the injury create a substantial risk of death? (Emphasis
added.) He replied, “No.” (Emphasis added.) The State then
showed Dr. Camara “HPD Form 13.” He explained, “When I filled
this out, I was thinking more in terms of an injury of the
severity that [complainant] had[,] could have led him to have a
subdural hematoma.” On cross-examination, Dr. Camara affirmed
that, “when [he] talked about substantial risk of death with
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brain hemorrhaging causing a subdural hematoma, [he] said . . .
the type of injury [complainant] had could cause a subdural
hematoma but in this case it didn’t[.]” (Emphasis added.) Dr.
Camara was asked on cross-examination whether in his conclusion
regarding complainant’s injuries creating a substantial risk of
death, he was “talking about possibilities[,]” and he responded,
“The risk, yes.” (Emphasis added.)
The instant case involved a single punch to decedent’s
head that did not result in a fracture of any kind, and plainly,
the multiple kicks and punches in the juvenile case did not cause
death. In the instant case only one punch caused death. In
light of the logical opposing conclusions that would be drawn
from the two incidents, the existence of the supposed fact that
one punch could cause death and that Petitioner would know this,
would not be made more or less probable by evidence that the
multiple kicks and punches in the juvenile case that were far
more “severe” did not cause death.
Because similarity between the two incidents is
lacking, evidence of Dr. Camara’s testimony, and the
qualifications therein, would not tend to prove the “fact” that
Petitioner would know from such testimony that one punch could
create a substantial risk of death more or less probable. The
facts in the juvenile proceedings were not so similar to the
facts in this case so as to impute to Petitioner knowledge of the
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fatal effect of one punch. See discussion, supra. Moreover, Dr.
Camara testified on cross-examination that the “risk” of death
was only a “possibility,” not that it was “substantial,” removing
the existence of Petitioner’s knowledge as a fact from the realm
of probability.
Also, admission of the doctor’s testimony rests on
several unstated assumptions that undercut the testimony’s
probative value. There is nothing to establish that Petitioner,
who was a juvenile at the time, could deduce from Dr. Camara’s
opinion testimony that a single punch could cause the same
injuries, of the same severity, suffered by complainant, which
could then in turn, create a substantial risk of death to
decedent. It would have to be assumed that Petitioner, as a
juvenile, understood the import of the testimony and that
although the doctor rendered an opinion with respect to a
specific case, that opinion could be treated as a matter of
incontrovertible fact in all cases so as to impeach Petitioner in
the instant case. Under these circumstances, Dr. Camara’s
testimony was not probative of whether Petitioner knew a single
punch could purportedly cause a substantial risk of death. In
sum, the juvenile evidence was neither relevant nor probative of
the fact that Petitioner would know a single punch could cause a
substantial and unjustifiable risk of death, but would only
result in unfair prejudice. See HRE Rules 403, 404.
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XVIII.
For the reasons set forth herein, the September 10,
2008 judgment of conviction and sentence filed by the court as to
Manslaughter is vacated and the case remanded to the court for a
new trial. The ICA’s December 15, 2010 judgment is affirmed in
part and vacated in part on the grounds set forth herein.
Emmanuel V. Tipon /s/ Simeon R. Acoba, Jr.
(Sparlin & Tipon,
for petitioner/ /s/ James E. Duffy, Jr.
defendant-appellant
/s/ Sabrina S. McKenna
Donn Fudo, Deputy
Prosecuting Attorney,
City and County of
Honolulu, for respondent/
plaintiff-appellee
86
State v. Schnabel.
Court: Hawaii Supreme Court
Date filed: 2012-05-11
Citations: 127 Haw. 432, 279 P.3d 1237, 2012 WL 1981217, 2012 Haw. LEXIS 153
Copy CitationsCombined Opinion