NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-FEB-2023
07:52 AM
Dkt. 141 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
EVELIN ITURBIDE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Chan, JJ.)
Defendant-Appellant Evelin Iturbide appeals from the
"Judgment of Conviction and Sentence" entered by the Circuit
Court of the First Circuit on November 15, 2021.1 For the
reasons explained below, we vacate the Judgment and remand for a
new trial.
A grand jury indicted Iturbide for Murder in the Second
Degree, for intentionally or knowingly causing the death of her
husband, Juan Iturbide. After a jury trial, Iturbide was
convicted of the included offense of Reckless Manslaughter.
Iturbide was sentenced to 20 years in prison. The Judgment was
entered on November 15, 2021. This appeal followed.
Iturbide raises four points of error. One is
dispositive.2 She contends:
1
The Honorable Paul B.K. Wong presided.
2
We need not address Iturbide's contentions that the circuit court
erred by denying her request to have the proposed jurors wear clear masks
(continued...)
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The circuit court erred in refusing the evidence of
Jessica[ Estrada]'s infidelity and the burglary because the
evidence was admissible as probative of her
untrustworthiness and credibility pursuant to [Hawaii Rules
of Evidence] 608 and 609.1. The circuit court's errors
constituted reversible error because Jessica's credibility,
as a percipient witness, was critical to the State's case
and conflicted with [Iturbide]'s testimony and her defense.
The evidence was also crucial because Jessica's testimony
had changed a number of times and the bases for her
inconsistencies were at issue. The errors cannot be
considered harmless as there is a reasonable possibility
that it contributed to [Iturbide]'s conviction.
[Iturbide]'s rights to due process and fair trial were
violated, and her conviction must be vacated. U.S. Const.
amend. V, VI, and XIV; Haw. Const. art. I, §§ 5, 14.
The incident that resulted in Juan's death took place
in the Iturbides' apartment. A friend of the Iturbides, Jessica
Estrada, was in the apartment and witnessed the incident. There
were no other eyewitnesses.
Iturbide filed a notice of intent to introduce evidence
of other crimes, wrongs, or acts involving Jessica. The notice
stated, in relevant part:
9. The credibility of State witness, Jessica
Estrada, will also be at issue during the trial. Therefore,
Defense will also seek to introduce the following evidence
of other crimes, wrongs or acts of Ms. Estrada as specific
instances of untruthfulness and/or for the purpose of
establishing her motive, bias, interest and/or intent:
a. Ms. Estrada was cheating on her husband
with a man named Julio. Julio was in the
Marines. Ms. Estrada gave him the
nickname "Cookie" in her phone to hide the
affair from her husband.
b. Ms. Estrada admitted to [Iturbide] that
she had cheated on her husband with
another individual.
. . . .
e. On February 22, 2018, Ms. Estrada broke
into [Iturbide]'s residence . . . . She
also took property from the home (the same
date as her fourth statement to HPD
detectives).
The State filed a motion in limine to preclude Iturbide
from questioning Jessica about the alleged extramarital affair
2
(...continued)
during jury selection, allowing rebuttal testimony by two witnesses, and
denying Iturbide's motion for mistrial.
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and the alleged burglary. The motion was heard on March 2, 2020.
The circuit court precluded Iturbide from eliciting evidence of
Jessica's affair with Julio/Cookie and the burglary, stating:
The Court doesn't find infidelity to be probative here. And
after reviewing Rule 608, 609 and 609.1, the Court doesn't
find this to be admissible on the rules -- under the rules.
Nor would infidelity be probative. And the prejudicial
value on this side trial as to Ms. Estrada's extramarital
affairs would confuse the jury. So under all of those rules
the Court denies the use of what's in paragraphs 9(a) and
9(b).
. . . .
The Court's going to disallow the alleged burglary on
February 25th [sic], 2018, during Ms. Estrada's -- or at any
time. Whether or not she did or did not commit that
particular offense is not relevant here. That kind of bad
act again is controlled by Rule 608, 609 and 609.1. After
review of all of those rules, the Court doesn't find an
avenue of admissibility for that bad act. And it is highly
prejudicial and will be kept out.
(Emphasis added.) A written order was entered on August 17,
2021.
The circuit court's rulings characterizing the
proffered cross-examination not being probative of truthfulness,
see, e.g., United States v. Ulloa, 942 F. Supp. 2d 202, 207
(D. N.H. 2013) (holding that under Federal Rules of Evidence Rule
608(b) marital infidelity is not probative of character for
truthfulness), aff'd, 760 F.3d 113 (1st Cir. 2014),3 or being
"[e]vidence of other crimes, wrongs, or [bad] acts" not
admissible under Hawaii Rules of Evidence (HRE) Rules 404(b) and
403, was not error.
We disagree, however, with the circuit court's ruling
that the proffered cross-examination was not probative of bias,
interest, or motive under HRE 609.1(a).
The sixth amendment to the United States Constitution
and article I, section 14 of the Hawai#i Constitution
guarantees an accused the right to confront adverse
witnesses. Indeed, the main and essential purpose of
3
"Although cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules of
Evidence." State v. Davis, 140 Hawai#i 252, 258 n.14, 400 P.3d 453, 459 n.14
(2017) (citing State v. Jhun, 83 Hawai#i 472, 478, 927 P.2d 1355, 1361
(1996)).
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confrontation is to secure for the opponent the opportunity
of cross-examination, and the exposure of a witness's
motivation in testifying is a proper and important function
of the constitutionally protected right of cross
examination. Additionally, [HRE] Rule 609.1(a) (2016)
provides that the "credibility of a witness may be attacked
by evidence of bias, interest, or motive." This court has
established that bias, interest, or motive is always
relevant under HRE Rule 609.1.
State v. Miranda, 147 Hawai#i 171, 179, 465 P.3d 618, 626 (2020)
(cleaned up) (emphasis added).
In Miranda, the supreme court discussed State v.
Balisbisana, 83 Hawai#i 109, 924 P.2d 1215 (1996), State v.
Marcos, 106 Hawai#i 116, 102 P.3d 360 (2004), State v. Levell,
128 Hawai#i 34, 282 P.3d 576 (2012), and State v. Acacio, 140
Hawai#i 92, 398 P.3d 681 (2017), and summarized:
These cases demonstrate that the appropriate inquiry
when reviewing an alleged violation of a defendant's
constitutionally protected right to demonstrate bias or
motive is whether the trier of fact had sufficient
information, including as to its source, from which to make
an informed appraisal of the witness's potential motive and
bias. Once the defendant is afforded the threshold level of
inquiry under the confrontation clause, the trial court may
conduct a balancing test to weigh the probative value of any
additional motive evidence against its potential for undue
prejudice.
147 Hawai#i at 180, 465 P.3d at 627 (cleaned up) (emphasis
added).
As to Jessica's alleged extramarital affair with a
Marine named Julio/Cookie, or Jessica's alleged admission to
Iturbide that [Jessica] had cheated on her husband, we note that
the circuit court denied the State's motion in limine to preclude
Iturbide from cross-examining Jessica about "having an affair
and/or inappropriate relationship with Mr. Iturbide." The court
stated: "9(d)[4] comes in under 609.1. [Jessica] arguably has an
interest in the outcome of the case. And therefore it affects
her bias."5
4
Item 9(d) of Iturbide's notice of intent stated: "[Jessica] was
having an affair and/or inappropriate relationship with Mr. [Juan] Iturbide."
5
During the trial Iturbide did not cross-examine Jessica about an
alleged affair with Juan.
4
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We note that Juan was a cook in the Marine Corps. The
circuit court should have conducted the threshold level of
inquiry into whether the trier of fact would have had sufficient
information from which to make an informed appraisal of Jessica's
potential motive and bias without cross-examination on items 9(a)
and 9(b) — in other words, whether Julio/Cookie was actually
Juan. The circuit court could then, if necessary, have balanced
whether the probative value of Jessica's bias, interest, or
motive under HRE 609.1(a) was "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" under
HRE Rule 403. See Miranda, 147 Hawai#i at 180, 465 P.3d at 627;
Balisbisana, 83 Hawai#i at 114, 924 P.2d at 1220 (citing HRE Rule
403).
As to Jessica's alleged burglary of the Iturbides'
apartment four days after the stabbing, Levell is instructive.
The defendant in that case was charged with harassment for
allegedly shoving the complaining witness. The defendant was not
permitted to cross-examine the complaining witness about whether
she had stolen and used his credit cards. The supreme court held
that the defendant's constitutional right to confront the
complaining witness had been violated. 128 Hawai#i at 40, 282
P.3d at 582. The supreme court
explained that if the defendant had been allowed to ask
about the alleged theft, he might have elicited testimony
tending to show that the complainant was biased or motivated
to fabricate or exaggerate a story about harassment, which
may have affected the trial court's view of the
complainant's testimony and, ultimately, whether the State
had proven its case.
Miranda, 147 Hawai#i at 180, 465 P.3d at 627 (citing Levell, 128
Hawai#i at 40, 282 P.3d at 582).
Similarly, in this case the circuit court should have
conducted the threshold level of inquiry to determine whether the
trier of fact would have had sufficient information from which to
make an informed appraisal of Jessica's potential motive and bias
without cross-examination about the alleged burglary. The
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circuit court could then, if necessary, have balanced whether the
probative value of Jessica's bias, interest, or motive under HRE
609.1(a) was "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" under HRE Rule 403. See
Miranda, 147 Hawai#i at 180, 465 P.3d at 627; Balisbisana, 83
Hawai#i at 114, 924 P.2d at 1220 (citing HRE Rule 403).
Based on the foregoing, we vacate the "Judgment of
Conviction and Sentence" entered by the circuit court on
November 15, 2021, and remand for a new trial.
DATED: Honolulu, Hawai#i, February 7, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Taryn R. Tomasa, Chief Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Brian R. Vincent, /s/ Derrick H.M. Chan
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
6