MITCHELL K. KURODA, obo AMBER S. KURODA, a minor, Petitioner-Appellee,
HOWARD SETH KEITH PECK, Respondent-Appellant.
NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-DA NO. 10-1-0942).
Steven J. Kim (Law Office of Steven J. Kim) for Respondent-Appellant.
Gregory Ryan Shannon Parrott (Law Office of Gregory Ryan, LLLC) for Petitioner-Appellee.
Reifurth and Ginoza, JJ.,
with Leonard, Presiding Judge, concurring and dissenting separately
SUMMARY DISPOSITION ORDER
Respondent-Appellant Howard Seth Keith Peck (Peck) appeals from the July 12, 2010 Order for Protection by the Family Court of the First Circuit (family court) granting Petitioner-Appellee Mitchell K. Kuroda's (Kuroda) "Petition for an Order for Protection on Behalf of a Family or Household Member" to prohibit Peck from, inter alia, contacting Kuroda's minor child Amber (Minor) and coming within a hundred yards of Minor's place of residence and school. The Order of Protection is in effect until November 2 018, when Minor reaches the age of eighteen. Minor was nine years old at the time of the proceedings in the family court, and according to evidence in the record, she is diagnosed as autistic.
On appeal, Peck contends that the family court erred by: (1) permitting Kuroda's hearsay testimony as to Minor's statements; (2) prohibiting cross-examination inquiry into the area of Minor's suggestibility; (3) admitting Kuroda's Exhibit 7, consisting of two photographs; and (4) denying Peck's counsel's request to call additional witnesses. Additionally, Peck contends that he was denied a fair trial due to the professional misconduct of Kuroda's counsel.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised therein, we resolve Peck's appeal as follows:
In his first point of error, Peck contends the family court erred in permitting Kuroda to give hearsay testimony concerning statements made to Kuroda by Minor that Peck had caused the injury on Minor's back. Specifically, Kuroda testified that, while changing Minor's clothes in the morning on June 11, 2010, he noticed a scab about the size of a nickel and bruising in the area below her right shoulder blade. When Kuroda's counsel asked Kuroda whether Minor told him how the injury had occurred, Peck's counsel objected on hearsay grounds. The objection was overruled. Kuroda then testified that Minor told him "[m]ommy and papa were arguing[, ]" that when Minor says "papa" she is referring to Peck, and that Minor further told Kuroda that "he" (apparently meaning Peck) had hit her with his hand. Kuroda further testified that he had asked Minor if it hurt and did she cry, and she told him it hurt and that she cried.
"Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard." State v. Fitzwater, 122 Hawai'i 354, 362, 227 P.3d 520, 528 (2010) (citation and internal quotation marks omitted). Moreover, the family court's decision should be affirmed if it is deemed correct, regardless of the reasoning or lack of reasoning articulated by the family court. See State v. Taniguchi, 72 Hawai'i 235, 240, 815 P.2d 24, 26 (1991) (" [W] e have consistently held that where the decision below is correct it must be affirmed by the appellate court even though the lower tribunal gave the wrong reason for its action."); Reyes v. Kubovama, 76 Hawai'i 137, 140, 870 P.2d 1281, 1284 (1994) . We conclude, however, that based on the record in this case, it was not proper to admit Kuroda's testimony regarding Minor's statements to him.
As noted by Peck on appeal, the family court summarily overruled Peck's hearsay objection and there was no discussion or further consideration of the hearsay issue related to Kuroda's testimony. Significantly, however, this was the only testimony implicating Peck as having caused Minor's injury. Thus, it appears from the record that this testimony was hearsay, that is, "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hawai'i Rules of Evidence (HRE) Rule 801. "Generally, because hearsay is not subject to the same safeguards as are present during in-court testimony before a factfinder, hearsay is inadmissible at trial, unless it qualifies as an exception to the rule against hearsay." State v. Apilando, 79 Hawai'i 128, 131, 900 P.2d 135, 138 (1995) (citation, internal quotation marks, and brackets omitted).
Kuroda argues on appeal that perhaps there were non-hearsay purposes for which Kuroda's testimony was admitted, but makes no credible argument based on the record in this case and does not cite any authority in this regard. Moreover, although Kuroda argues there may be hearsay exceptions, generally, he does not assert any particular exception as applicable in this case.
As noted in Peck's opening brief, there is a hearsay exception pursuant to HRE 804(b)(6) for a statement of ...