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State v. Scott

Supreme Court of Hawaii

October 16, 2013

STATE OF HAWAII, Respondent/Plaintiff-Appellee,
KEVIN ALEXANDER SCOTT, Petitioner/Defendant-Appellant.


Kevin O'Grady, for petitioner

Linda L. Walton, for respondent




Petitioner/Defendant-Appellant Kevin Alexander Scott (Scott) seeks review of the January 15, 2013 Judgment on Appeal of the Intermediate Court of Appeals (ICA), filed pursuant to its December 17, 2012 Summary Disposition Order, affirming the Judgment of Conviction and Sentence (Judgment) entered by the Circuit Court of the Third Circuit (circuit court) on August 30, 2010.

Scott's appeal arises from the circuit court's denial of his request for the written transcripts or the DVD video recordings of his codefendant's trial. For the reasons set forth herein, we hold that Scott demonstrated that the requested transcripts or DVD video recordings were necessary for an effective defense, where the charges against Scott and his codefendant arose from the same incident and involved identical facts, and the same key witness testified against both Scott and his codefendant at their respective trials. Thus, the circuit court erred by denying Scott's request. Accordingly, we vacate the ICA's Judgment on Appeal and the circuit court's Judgment, and remand for a new trial consistent with this opinion.



The charges against Scott arose out of an incident that occurred on October 18, 2009 and involved Scott, his brother Jefferson Scott (Jefferson), and the complainants Leif Martin (Leif) and Kerry Martin (Kerry). Scott and Jefferson were indicted separately by the State of Hawai'i (State) upon multiple charges related to the incident.

Jefferson was indicted first, upon charges of assault in the second degree, [1] assault in the third degree, [2] and terroristic threatening in the second degree.[3] State v. Scott, No. 30499, 2011 WL 1878851 (Haw. App. May 12, 2011) (SDO). Following a jury trial, on April 14, 2010, Jefferson was convicted of two counts of assault in the third degree and one count of terroristic threatening in the second degree.[4] Id. at *1.

On January 25, 2010, Scott was indicted by a grand jury upon one count of assault in the second degree for intentionally or knowingly causing substantial bodily injury to Leif[5]; two counts of terroristic threatening in the first degree, for threatening to cause bodily injury to Leif and Kerry with the use of a dangerous instrument; and one count of terroristic threatening in the first degree by common scheme.[6] A jury trial was scheduled for June 29, 2010.[7]

On February 17, 2010, the State filed a "Notice of Liability for Conduct of Another" (Notice of Liability), stating that it intended to use evidence that Scott "aided his brother, Jefferson Scott, in committing the crimes charged in this case, " pursuant to HRS §§ 702-221(1) and (2)(c)[8], 702-222(1)(b)[9], and 702-223[10]. The Notice provided that the State intended to introduce evidence that Jefferson "assisted" Scott after Scott "got into a dispute with" Leif and Kerry:

Specifically, the State will introduce evidence that JEFFERSON SCOTT assisted the defendant after the defendant got into a dispute with the defendant's neighbors, LEIF MARTIN and KERRY MARTIN. During what started as a verbal argument between defendant and the Martins, JEFFERSON JOSEPH SCOTT became angry and decided to assist his brother. Defendant's brother, JEFFERSON SCOTT, then punched LEIF MARTIN, who fell to the ground unconscious ....
[T]he defendant's brother then kicked LEIF MARTIN in the head while he was on the ground, unconscious, as the defendant, KEVIN SCOTT, continued to threaten.

(Emphases added).

On June 15, 2010, Scott filed a Motion to Continue Trial with the circuit court, pursuant to Rule 12 of the Hawai'i Rules of Penal Procedure (HRPP) and Rule 7 of the Hawai'i Circuit Court Rules.[11] The motion provided that defense counsel needed additional time to "obtain copies of the recent trial of the co-defendant brother in order to adequately prepare a defense in the instant case." In defense counsel's declaration in support of the motion, counsel explained that the transcripts had not been previously ordered because Scott had authorized him to enter into plea negotiations with the State. Defense counsel believed "the case was headed in the direction of a plea agreement" based on the State's plea offer in April 2010. Defense counsel therefore did not order Jefferson's trial transcripts in an effort to avoid incurring unnecessary expenses. However, "the plea agreement reached by the parties . . . fell out of orbit based on . . . newly discovered information[.]" Counsel additionally stated that he had mistakenly assumed another trial scheduled at approximately the same time as Scott's trial was "first up and was certain to go[.]" Finally, defense counsel represented to the court that he had explained the need for the transcripts to Scott and Scott had agreed "to waive his Rule 48 and constitutional speedy trial rights" in order for the court to consider continuing the trial.

At about the same time that the Motion to Continue Trial was filed, defense counsel also submitted a "Request Form for Non Appeal Cases" (Request Form I) to the administrative judge for the Third Circuit (administrative judge).[12] Defense counsel requested the written transcripts of Jefferson's jury trial proceedings, a pretrial motion hearing, and sentencing hearing.

On June 21, 2010, the State filed a "Supplement to Response to Motion to Continue Trial"[13] (Supplemental Response) with the circuit court, contending that Scott had "made no showing that he requested the transcripts of his brother's trial, or that they are necessary for his defense." The State also argued that Scott had access to the transcripts of the grand jury proceedings and a protective order hearing at which Scott and Jefferson testified. The State further asserted that Jefferson's "entire trial was recorded on DVD, which will require less than a day for the defendant to copy" and which fulfilled the "same function as a transcript."

Apparently in response to the Supplemental Response, defense counsel submitted a second "Request Form for Non Appeal Cases" (Request Form II) to the administrative judge. Defense counsel requested the video recordings of the same proceedings related to Jefferson's trial that he had requested written transcripts for in Request Form I.

A hearing on the Motion to Continue Trial was held on June 23, 2010. Following the hearing, the circuit court denied the motion.[14] The record does not include a transcript of the hearing or an order from the circuit court regarding its disposition of the motion. The June 23, 2010 court minutes indicate that the circuit court denied Scott's Motion to Continue Trial because "the information being sought could have been more specific and not be a vague allegation of what might be out there." The court also reasoned that it had summoned a jury and the parties had indicated they were ready to proceed with trial. Finally, the court stated that "if there was a need for expedited transcripts, motions could have been filed, " and Scott had not demonstrated prejudice.

On June 24, 2010, consistent with the circuit court's decision to deny Scott's Motion to Continue Trial, the administrative judge denied Request Form I and Request Form II. Both forms were stamped "Disapproved and So Ordered." On Request Form I, the judge initialed the following handwritten statement next to his signature: "Counsel is appointed in another case. Defendant does NOT HAVE a constitutional right to a 'free' audio in this case." (Underline emphasis added). Similarly on Request Form II, the judge initialed the following handwritten statement: "Counsel is appointed in another case. Defendant does not have a constitutional right to a 'free' video in this case." (Emphasis added). Both Request Forms I and II were filed on June 29, 2010.


Scott's jury trial commenced on June 29, 2010 and adduced the following evidence.

On October 18, 2009, Scott went to visit Jefferson at the latter's home. Jefferson's home was located in a cul-de-sac, next door to Kerry's home. Scott parked his van on the street.

That night, Leif was visiting Kerry and their children at Kerry's home. Leif and Kerry were married but separated. Leif was employed as a federal security officer for the

Transportation Security Administration at the airport. When Leif arrived at Kerry's home, he double-parked his car next to Scott's van, so that his car was closer than three feet from the van. There was apparently a history of problems between the Martins and the Scotts regarding the van being parked in the cul-de-sac.

Later that night, Leif and Kerry came outside to the driveway area of Kerry's home and began "venting" to one another about the van being parked in the cul-de-sac. According to Scott, he and Jefferson were sitting on the porch when he heard Leif yelling about the van being parked, prompting him to walk out to where Leif and Kerry were standing. Kerry and Leif testified that as Scott approached them, Scott stated, "If you wanted me to move it, why didn't you just say so." Kerry responded that she was "really over this drama" and Leif commented that Scott had previously dented Kerry's father's car. Scott approached Kerry and responded, "I talked to that old man about that." While Kerry took a step back, Leif took a step towards Scott. Scott and Leif then stood "face-to-face, " arguing about the van being parked in the cul-de-sac.

While Scott and Leif were arguing, Jefferson came outside and asked what was happening. Leif and Jefferson had an exchange regarding the van. Scott testified that Leif walked towards Jefferson aggressively "with his fists clenched, " and when Leif got to within arm's reach of Jefferson, Jefferson hit Leif on his chin and "knocked him out, " causing Leif to fall backwards and hit the ground. Kerry similarly testified that while Scott and Leif were arguing, Jefferson "came from behind [Scott] and punched Leif in the side of the head." According to Kerry, Leif then fell unconscious for one and a half to three minutes.

Leif could not recall much of the incident after Jefferson came outside. Leif only remembered Jefferson coming around the car towards him, and then being in the ambulance.

Scott testified that after Jefferson punched Leif, he went to his van to retrieve his cell phone so that he could call an ambulance. Kerry testified that as she tried to wake Leif, Jefferson was "being really erratic, " "bouncing around" near Leif's feet while yelling threats at her and Leif. She heard a car door slam, and when she looked over she saw Scott "coming from around the far side of his van" while putting "something shiny" into his waistband. Kerry turned back and saw Jefferson kick Leif in his upper body. Scott testified that as he was returning from his van, he saw Jefferson kick the left side of Leif's face. Scott ran over and told Jefferson to stop hitting Leif, and told Kerry that she and Leif needed to leave. However, Kerry was unable to lift Leif on her own.

At this point, Scott and Kerry's version of the events substantially diverge.

According to Kerry, Scott helped her lift Leif, leaned Leif against her, and then stepped back. Jefferson was "still jumping around a lot, " "just acting . . . really kinda crazy." Leif was "just barely conscious" and Kerry tried unsuccessfully to "drag him." As she was telling Leif, "We need to go, " Scott came up along her right side, pulled out a "small pistol-style gun" from his waistband, and placed it "flat against the side of Leif's face." Scott told them to get into their house, then pointed the barrel of the gun at the side of Leif's temple and threatened him. Then as Kerry continued to hold Leif up, Scott "hit Leif in the side of the head with the butt of the gun." Leif went unconscious again, and Kerry lowered him to the ground. When she looked back up, Scott was standing over her, pointing the gun at her while threatening her and yelling at her to get in the house. After trying unsuccessfully to get Leif into his car, Kerry ran into the house and called 911. Kerry testified that the entire altercation lasted about fifteen minutes.

According to Scott, he put his cell phone in his pocket, raised Leif to his feet, and then helped Kerry move Leif towards the driveway. As they were walking, Scott could feel Leif "beginning to get some feet underneath him again, " and tried to get Kerry to take Leif. However, Kerry pushed Leif back onto Scott and "had words" with Jefferson while Scott continued to hold Leif from behind and attempt to walk him towards his driveway. Leif "began to come to" and tried to turn to see who was helping him; when he realized that it was Scott, he broke free and appeared to regain his composure. Scott took his cell phone out of his pocket and told Leif to get back into the car. When Leif approached Scott aggressively and got to "about half an arm's length" from Scott, Scott testified, "I gave him a right hook and I hit him in his eye, and he fell down." Scott's cell phone, which he was holding in his left hand, flew onto the ground. Scott then got into his van and locked the door.


Scott was convicted of assault in the second degree (Count I), the lesser included offense of terroristic threatening in the second degree as to Leif (Count II), and terroristic threatening in the first degree as to both Leif and Kerry (Count IV).[15]

On August 30, 2010, the circuit court sentenced Scott to an indeterminate term of imprisonment of five years in Count I, one year of imprisonment in Count II, and an indeterminate term of five years imprisonment in Count IV, with all terms to run concurrently.[16]


On appeal to the ICA, Scott argued in relevant part that the "trial court erred when it refused to provide" his court-appointed counsel with the requested "transcripts of testimony of the complaining witness and another state witness, " thereby depriving him of his right to a fair trial and his right to mount an effective defense. Scott argued in support of this point that Jefferson's trial involved the same victims, Leif and Kerry, and the same primary witness, Kerry. Without the transcripts of Jefferson's trial proceedings, defense counsel was unable to adequately prepare to cross-examine these witnesses during Scott's trial. Furthermore, Scott contended that he was not provided an adequate substitute for the requested transcripts, as even his request for a DVD video recording of the relevant proceedings was denied.

The State responded that the administrative judge did not err in denying Scott's request for transcripts because Scott did not make the requisite showing of necessity. The State also argued that Scott did not adequately preserve this point of error on appeal because the administrative judge's denial of Scott's Request Form was a denial of a pro forma transcript request form and not a denial of a formal motion explaining the necessity of having the transcripts, and Scott further failed to file a motion to reconsider the judge's decision. Additionally, the State contended that Scott did not file a motion to obtain the transcripts of Jefferson's trial proceedings with the circuit court judge.

The ICA affirmed Scott's conviction. State v. Scott, No. CAAP-10-0000037, 2012 WL 6568233 (Haw. App. Dec. 17, 2012) (SDO). The ICA reasoned that Scott's Request Form I[17] did not provide any reason for the request or indicate, on its face, any reason that the transcripts were "necessary for an adequate defense" in Scott's case. Id. at *1. The ICA further found that Scott had not claimed that "all of the seven transcripts requested contain the testimony of witnesses he anticipated would testify in his trial." Id.

The ICA stated that Scott had failed to cite any authority to support his contention that he was entitled to transcripts of proceedings in another case. Id. The ICA differentiated this case factually from State v. Mundon, 121 Hawai'i 339, 219 P.3d 1126 (2009) and Britt v. North Carolina, 404 U.S. 226 (1971), in which the courts held that an indigent criminal defendant is entitled to transcripts of prior proceedings in the defendant's own case when such transcripts are necessary for an effective defense or appeal. 2012 WL 6568233, at *1.

Finally, the ICA faulted Scott for not submitting his request for transcripts until, at the earliest, June 15, 2010, when trial was scheduled for June 23, 2010. Id. at *2. Thus, the ICA concluded that Scott had failed to establish that the ...

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