NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT KONA DIVISION (FC-CR. NO. 10-1-0329K)
Nakamura, C.J., and Fujise and Leonard, JJ.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Kaolino Richard Baker (Baker) with abuse of a family or household member, in violation of Hawaii Revised Statutes (HRS) § 709-906(1) (Supp. 2012). The complaining witness (CW) was Baker's girlfriend. Baker and his counsel signed a "Waiver of Jury Trial." After a bench trial, the Family Court of the Third Circuit (Family Court) found Baker guilty as charged and sentenced him to two years of probation. Baker's term of probation was subject to the special condition that he serve thirty days of imprisonment, with twenty-five days suspended as long as he remained compliant with certain other conditions of his probation. Baker's sentence was stayed pending appeal.
Baker appeals from the Judgment of the Family Court that was entered on August 10, 2011. On appeal, Baker argues that: (1) the Family Court plainly erred in failing to ensure that Baker fully waived his right to a jury trial; (2) the Family Court erred in finding Baker guilty because there was insufficient evidence to negate a "choice of evils" justification defense; and (3) the Family Court violated Baker's rights by relying on a written police report of Baker's interview statement, which had not been admitted at trial, to find Baker guilty and in relying on that report, which Baker claims he did not have the opportunity to review, controvert, or supplement, in sentencing him. For the reasons explained below, we affirm the Family Court's Judgment.
Baker's prosecution stemmed from an altercation with the CW, who at the time was his girlfriend. Baker and the CW lived together for six years and owned a house together. At the time of trial, they no longer lived together, but still jointly owned the house.
On the night in question, the CW and her friend Tara had left a bar at about 2:00 a.m., after the last call. The CW had agreed to give Tara a ride to her car. Baker, who had also been at the bar, arrived at the CW's car after the CW and Tara had entered it. All three of them were intoxicated. Baker reached into the car and attempted to grab the keys from the CW. A struggle ensued and Baker ended up with the keys.
Officer Jared Cabatu (Officer Cabatu) of the Hawai'i County Police Department was on duty "staging" with several officers in an area near to the CW's parked car. Officer Cabatu testified that he heard a female yell for help and say that "her friend was getting hit by her boyfriend." As Officer Cabatu responded to the call for help, he saw Baker look towards the police officers and then quickly walk away from the scene.
According to Officer Cabatu, the CW was crying and appeared intoxicated. The CW told Officer Cabatu that she had been hit twice, once in the face and once in the arm. Officer Cabatu saw a red mark on the CW's face and took photographs of her face and arm. Officer Cabatu had the CW fill out a "Domestic Violence Statement Form, " which the CW filled out and signed. The CW wrote: "My boyfriend tried to get my keys in my car and hit me in my face and grabbed my keys." According to the answers to questions set forth in the form, Baker had hurt the CW with his "fist, " and the CW felt pain which was described as "mild." The CW signed the form under the statement, "I AFFIRM THAT THE INFORMATION IN THIS DOCUMENT IS TRUE AND CORRECT."
The police subsequently located Baker, and Officer Cabatu placed Baker under arrest. Baker waived his Miranda rights, signed a waiver of rights form, and made a statement regarding the incident to Officer Cabatu. Prior to the prosecutor questioning Officer Cabatu about Baker's interview statement, Baker's counsel requested that he be allowed to voir dire Officer Cabatu on the voluntariness of Baker's statement, and the Family Court granted the request. After defense counsel's voir dire, the State introduced Baker's waiver of rights form. Officer Cabatu testified that Baker stated that: (1) Baker and the CW, his girlfriend, got into a verbal argument because the CW saw Baker talking to another woman at the bar; (2) Baker was trying to get the keys away from the CW while she was driving; and (3) Baker "denied any physical contact with anybody in the car."
During Officer Cabatu's direct examination, the prosecutor used Officer Cabatu's police report of Baker's interview statement to refresh the officer's recollection about Baker's statement:
Q. Would looking at your report regarding the interview refresh your recollection as to [Baker's] statement?
A. Yes, sir.
[Prosecutor]: I'm showing one page from the officer's report to defense counsel at this time.
May I approach?
THE COURT: All right.
[Prosecutor]: Q. And when your memory is refreshed, please look up. Officer, is your memory refreshed?
[Officer Cabatu]: A. Yes, sir.
The prosecutor also used the "OBTS" portion of the police report to refresh Officer Cabatu's recollection as to the time of Baker's arrest.
The bench trial began on June 8, 2011, with Officer Cabatu's testimony. The State had subpoenaed the CW to appear on that date, but the CW failed to appear and left a voice mail that she was sick. The Family Court continued the trial, which resumed on August 10, 2011.
When the trial resumed, the CW appeared and was called as a witness by the State. The CW denied that Baker had hit her. When confronted with her Domestic Violence Statement Form, the CW acknowledged that the statement "My boyfriend tried to get my keys in my car and hit me in my face and grabbed my keys" was in her handwriting and that she had signed the form. However, the CW claimed that she did not remember filling out the form and that other portions of the form were not in her handwriting. The State offered the CW's Domestic Violence Statement Form as substantive evidence in light of the CW's recantation, and the Family Court admitted it in evidence. On cross-examination, the CW testified that Baker did not hit her intentionally and that she did not feel any pain during the incident.
After the State presented its case-in-chief, Baker moved for judgment of acquittal based on the State's failure to introduce sufficient evidence that the CW suffered pain, which Baker argued was required to establish the charged offense. The Family Court denied the motion.
Baker testified in his own defense. According to Baker, he and the CW were at a bar, and the CW was "really intoxicated and stumbling." When the CW left the bar and got into her car, Baker became concerned because he did not want the CW to get into an accident. He reached into the car to pull the keys from the ignition and a struggle ensued, with the CW biting Baker's arm. Baker stated that he did not hit the CW but he "did elbow her." The CW's friend, Tara, started screaming, and Baker left because he did not "want to deal with her screaming like that."
On cross-examination, Baker acknowledged that he was intoxicated on the night in question. When cross-examined about his statement to the police, Baker asserted that he had not had an opportunity to read the police reports regarding his statement and had not reviewed the statement with his attorney. Baker indicated that he may have hit the CW accidentally.
The defense also called Chad, a long-time friend of Baker, who said he witnessed the incident. Chad saw Baker go up to the CW's car, argue with the CW, then close the door. Chad testified that he did not see Baker hit or strike the CW in any way. After Baker closed the door to the CW's car, Baker walked over to Chad and asked Chad to pick him up at a different location. Chad's car was parked in the same ...