This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the Circuit Court of the First Circuit (CR. No. 08-1-1504).
Summer M.M. Kupau, Deputy Public Defender, on the briefs, for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.
FUJISE, Presiding Judge, REIFURTH and GINOZA, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Toi Nofoa (Nofoa) appeals from a Circuit Court of the First Circuit (Circuit Court) October 9, 2012 Judgment of Conviction and Sentence (Judgment). Nofoa was convicted of: (1) Kidnapping, in violation of Hawaii Revised Statutes (HRS) § 707-720(1)(e) (Supp.2013)  (Count 1); and (2) Terroristic Threatening in the Second Degree, in violation of HRS § 707-717 (1993)  (Count 2), and sentenced to twenty years in prison in Count 1 and one year in prison in Count 2, with the terms to run concurrently.
On appeal, Nofoa maintains that (1) the Circuit Court erred in admitting the unavailable complaining witness's (CW) preliminary hearing testimony; (2) the Circuit Court erred in admitting a recording of a 911 emergency call; (3) the Circuit Court exhibited' bias against him in allowing the Deputy Prosecuting Attorney (prosecutor) to inform the jury that CW was unavailable because she was dead; (4) the prosecutor committed prosecutorial misconduct; and (5) the evidence was insufficient to prove Kidnapping as a class A felony.
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, we resolve Nofoa's appeal as follows and affirm.
1. Nofoa argues that the Circuit Court erred by admitting CW's preliminary hearing testimony at trial because: (1) it did not qualify as former testimony and admission violated his right of confrontation, and (2) submitting a recording of the testimony to the jury during deliberations was an abuse of discretion. We disagree.
a. CW's testimony was admissible as former testimony pursuant to Hawaii Rules of Evidence (HRE) Rule 804(b)(1). See State v. Moore, 82 Hawaii 202, 225, 921 P.2d 122, 145 (1996) (stating that HRE Rule 804(b)(1) only requires " that the party against whom the [former] testimony is later offered had the opportunity and motive" to conduct direct, cross, or redirect examination). Admission of CW's testimony did not violate Nofoa's right to confrontation as CW was unavailable at trial and Nofoa was afforded adequate opportunity to cross-examine CW at the preliminary hearing, Crawford v. Washington, 541 U.S. 36, 59, 68 (2004); State v. Fields, 115 Hawaii 503, 516, 168 P.3d 955, 968 (2007), which involved the same motives as those at trial to discredit the State's case and demonstrate that Nofoa was not guilty of the alleged offenses, State v. Lopez, 258 P.3d 458, 462 (N.M.2011). Nofoa faced the same charges and defense counsel, who extensively and thoroughly cross-examined CW at the preliminary hearing, resulting in twenty-one pages of cross-examination transcript, was not restricted by the court during cross-examination nor by objections by the State, and voluntarily terminated his cross-examination following CW's response to all of the questions posed. See Fields, 115 Hawaii at 523, 168 P.3d at 975; see also State v. Faafiti, 54 Haw. 637, 641-42, 513 P.2d 697, 701 (1973); The authority Nofoa relies on appears to hinge on the court placing overt or covert restrictions on defense counsel's ability to conduct cross-examination, which is not the case here.
b. The Circuit Court did not abuse its discretion in submitting a recording of CW's testimony to the jury during deliberations. Nofoa's reliance on State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987), and State v. Minn, 79 Hawaii 461, 903 P.2d 1282 (1995), is misplaced as each case involved denial of a jury's request to reread testimony of an available witness. Estrada, 69 Haw. at 229, 738 P.2d at 828-29; Minn, 79 Hawaii at 466, 903 P.2d at 1287. See also United States v. Washington, 596 F.3d 777, 782-83 (10th Cir.2010) (holding that where transcript of prior testimony was admitted as a trial exhibit, the district court did not abuse its discretion and there was no undue emphasis by the court in allowing the exhibit to go to the jury during deliberations with all the other exhibits). Nofoa's reliance on HRE Rule 1102 and State v. Nomura, 79 Hawaii 413, 417, 903 P.2d 718, 722 (App.1995), is likewise misplaced as the Circuit Court did not comment upon the evidence or advocate that CW's version of events should be believed over Nofoa's, and we presume that the jurors followed the Circuit Court's instructions that they were the sole judges of witness credibility. Aga v. Hundahl, 78 Hawaii 230, 237, 891 P.2d 1022, 1029 (1995).
2. Nofoa next argues that the Circuit Court erred by admitting the 911 call recording at trial because: (1) CW's statement did not constitute an excited utterance and admission violated his right of confrontation, and (2) portions of the 911 call were inadmissible on other grounds. We disagree.
CW's statement qualified as an excited utterance pursuant to HRE Rule 803(b)(2) because the facts establish that a startling event occurred, CW made her statement while under the stress of excitement caused by the event, and her statement related to this event.State v. Machado, 109 Hawaii 445, 451, 127 P.3d 941, 947 (2006). Under the totality of the circumstances, State v. Clark, 83 Hawaii 289, 297, 926 P.2d 194, 202 (1996), we conclude that CW's statement was " a spontaneous reaction to the exciting event" rather than " the result of reflective thought[,]" Moore, 82 Hawaii at 219, 921 P.2d at 139 (citation and internal quotation marks omitted), as the elapsed time between the startling event and CW's statement, the nature of the event, CW's mental and physical condition, the lack of intervening ...