NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-CR NO. 10-1-1526)
Iokona A. Baker, Deputy Public Defender, for Defendant-Appellant.
Anne K. Clarkin, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.
Leonard, Presiding Judge, Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Martin J. Monahan ("Monahan") appeals from the October 27, 2010 Amended Judgment of Conviction and Sentence; Notice of Entry ("Amended Judgment") entered by the Family Court of the First Circuit ("Family Court"). A jury convicted Monahan of one count of abuse of family or household members in violation of Hawaii Revised Statutes ("HRS") § 709-906. The Family Court sentenced Monahan to, among other things, two years of probation and five days in jail with credit for time served.
On appeal, Monahan contends that the Family Court (1) violated his constitutional right to a trial before a fair and impartial tribunal by telling the prosecutor how to lay sufficient foundation in order to read the complainant's ("Complainant") statement to the police ("Statement") into evidence under the past-recollection-recorded exception to the hearsay rule and (2) otherwise erred in admitting the Statement because the State failed to lay sufficient foundation. Monahan also argues that (3) the Family Court's instructions to the jury regarding self-defense were erroneous because the Family Court failed to state that a person employing protective force "may estimate the necessity for the use of such force under the circumstances as he reasonably believes them to be when the force is used, without retreating or doing any other act that he has no legal duty to do or abstaining from any lawful action."
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 by the parties, we resolve Monahan's points of error as follows:
(1) Monahan argues that the Family Court violated his constitutional right to a trial before a fair and impartial tribunal by giving instructions to the prosecutor on how to lay the foundation to admit the Complainant's Statement under the past-recollection-recorded exception to the hearsay doctrine.We disagree.
The Family Court's alleged misconduct occurred after the prosecutor had attempted to lay the foundation necessary to allow the Statement to be read to the jury by asking the Complainant about various provisions found in the Statement itself—for instance, asking the Complainant, "just above your signature, isn't it true that it says that you have read this statement . . . which consists of typed or handwritten pages and continuation pages?" Monahan's attorney then asked for a bench conference. Monahan's attorney objected to the fact that the prosecutor was "basically reading what's on the report" without laying a foundation to utilize the past-recollection-recorded exception to the hearsay doctrine. The prosecutor responded that she was simply reading "the typewritten portion that she signed to authenticate the document . . . ." The Family Court stated:
I understand the purpose of why you're asking that.
But the fact that you're reading it in, that she attested that it was true at the time and now she's changing her story is raising some issues. So the foundation for this type of evidence is that she has to — it's information about what the witness once had knowledge but now has insufficient recollection, I think that's been laid.
To enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory, and to ...