CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000705; CR. NO. 10-1-2075)
Recktenwald, C.J., Nakayama, and McKenna, JJ.
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
Petitioner/Defendant-Appellant Barabbas Dietrich's application for writ of certiorari filed on August 9, 2013, is hereby rejected.
DISSENT BY ACOBA, J., WITH WHOM POLLACK, J., JOINS
I respectfully dissent to the rejection of the certiorari application. It is well established that the burden is on Respondent/Plaintiff-Appellee the State of Hawai'i (the State or the prosecution) to disprove beyond a reasonable doubt any non-affirmative defense raised by Petitioner/Defendant-Appellant Barabbas Dietrich (Dietrich). State v. Gabrillo, 10 Haw.App. 448, 456, 877 P.2d 891, 895 (1994). Here, in a prosecution for robbery, Dietrich raised the defense that no robbery took place, and that the complaining witness, Joel Pedro (Pedro), voluntarily gave him the money.
In closing argument, the prosecutor suggested that Dietrich did not call two other witnesses because their testimony would have been harmful to Dietrich. By telling the jury, in effect, that Dietrich needed to call the two witnesses to establish his defense, the prosecution improperly shifted the burden to Dietrich of proving he was not guilty rather than proving Dietrich was guilty beyond a reasonable doubt. State v. Mainaaupo, 117 Hawai'i 235, 259, 178 P.3d 1, 25 (2008) (Acoba, J., concurring and dissenting).
Further, there was no evidence demonstrating that the testimony of either witness would have been adverse to Dietrich. Had the prosecution believed that the testimony of either witness would have been favorable to its position, as the prosecution intimated, it could have sought to locate those witnesses and called them to testify. Instead the prosecutor argued, without a basis evident in the record, that those witnesses could have been called by Dietrich. Because these assertions were raised in closing argument, Dietrich was unable to respond with any evidence.
Finally, the prosecutor's statement infringed on Dietrich's constitutionally guaranteed right to testify in his own defense. By using Dietrich's testimony to impose a burden on Dietrich to prove his defense, the prosecutor would have compelled Dietrich to choose between foregoing his right to testify in his own defense or having the jury incorrectly believe that he had a burden to call further witnesses to prove his innocence.
In sum, the prosecutor's closing argument appears to have shifted the burden of proof to Dietrich to produce additional witnesses and undermined Dietrich's credibility without any evidence in the record for doing so, based on the prosecutor's speculation about what the witnesses might have testified to. Thus, Dietrich was denied a fair trial. This error would not be harmless. First, the case turned on the jury's evaluation of the credibility of Dietrich and Pedro. The prosecutor's assertions regarding the testimony of other witnesses would have undermined Dietrich's credibility. Thus, there is a reasonable possibility that the prosecutor's speculation as to the testimony of the absent witnesses could have contributed to Dietrich's conviction. See State v. Walsh, 125 Hawai'i 271, 290, 260 P.3d 350, 369 (2011) (emphasis in original) (internal quotation marks omitted).
Second, there is a reasonable probability that the jury would have interpreted the prosecutor's closing argument to mean that the jurors should not have acquitted Dietrich unless he presented further evidence. Mainaaupo, 117 Hawai'i at 261, 178 P.3d at 27 (Acoba, J., concurring and dissenting). Such a belief also may have contributed to Dietrich's conviction. Id. Because the ICA affirmed Dietirch's conviction under these circumstances, I would accept certiorari to subject the case to a second review.
At trial, Pedro testified that after finishing work, he went to "Anna Miller's" restaurant at around 11:30 p.m. Before he entered the restaurant, he paused to smoke a cigarette while standing next to the passenger side of his car. While smoking the cigarette, Dietrich's car parked in the stall next to Pedro. Dietrich exited his car, approached Pedro, and asked him for a cigarette. According to Pedro, Dietrich then asked him if he had twenty dollars. When Dietrich asked about the money, he "was standing right in front of [Pedro]" and "looked mad." Pedro responded that he did not have any money, and Dietrich then told Pedro "Oh, you like me lick you right now?" Dietrich asked Pedro to see his pockets, and when Pedro showed him that there wasn't anything in his pocket, he asked to see his wallet as well.
Pedro then took out his wallet and gave Dietrich twenty dollars. Dietrich then asked if Pedro had any more money. After Pedro told him that he did not have any more money, Dietrich again said "Like me lick you? Take out your wallet. I want to see you wallet." Pedro showed Dietrich his wallet but attempted to hide a fifty dollar bill that was inside. However, after Dietrich saw the money, Pedro gave him the money because he didn't "want to get hurt" or "beaten up."
Dietrich, on the other hand, testified that he was at Anna Miller's to sell his "Xbox 360." Dietrich had posted an ad to sell the Xbox on craigslist, and Justin Castillo had offered to purchase the Xbox and suggested they meet at Anna Miller's. However, Castillo was not at Anna Miller's and did not respond to Dietrich's calls. Dietrich wanted a cigarette, but did not want to go to the store to buy one because he didn't want to miss Castillo. Dietrich then saw Pedro, and approached him and asked for a cigarette.
After Pedro gave him a cigarette, Pedro offered Dietrich twenty dollars. Dietrich related that he thought Pedro gave him the money because Pedro was "interested" in Dietrich and found him "attractive." Pedro began to smoke another cigarette. Dietrich asked if he had another cigarette, and Pedro told him that he was out, but that he would give him five dollars to buy a pack. Dietrich responded that he smoked Newports, which cost more than five dollars. Pedro then gave him two five dollar bills. Pedro then gave him twenty more dollars for "protection" against ...