As Corrected February 11, 2014.
[Copyrighted Material Omitted]
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-11-0000758; CR. NO. 10-1-0663.
Summer M.M. Kupau, for petitioner.
ACOBA, McKENNA, AND POLLACK, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J. JOINS.
[132 Hawai'i 100]
Petitioner/Defendant-Appellant Michael W. Basham (Basham) appeals from the January 31, 2013 Judgment on Appeal of the Intermediate Court of Appeals (ICA), affirming the June 14, 2011 Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (circuit court). This appeal raises the issue of whether a prosecutor in closing argument may orally provide definitions to key terms in a critical jury instruction, thereby modifying the instructions read to the jury. For the reasons set forth herein, we vacate the ICA and circuit court judgments and remand for a new trial.
On April 28, 2010, Respondent/Plaintiff-Appellee State of Hawai'i (State) indicted Basham and his son, Aliikea Basham (Aliikea), upon a charge of assault in the first degree under Hawai'i Revised Statutes (HRS) § 707-710. The State alleged that on September 22, 2007, Basham and Aliikea (collectively, " Defendants" ) intentionally or knowingly caused serious bodily injury to Steven Bloom (Bloom).
Defendants' jury trial commenced in circuit court on June 6, 2011.
The State's witnesses testified to the following facts.
On September 22, 2007, Bloom and his wife, Jennifer Chavez (Chavez) were driving in the Ewa Beach area, where they had recently purchased a house. Bloom was driving their car, a white Saturn. As they were driving in search of a beach, they were involved in a minor motor vehicle collision with a blue car, which hit the back of their
[132 Hawai'i 101] car. Neither Bloom nor Chavez was injured in the accident.
Both cars then pulled off to the side of the road. Bloom got out and approached the driver of the blue car (Driver), confirmed that Driver was uninjured, and suggested that they exchange insurance information. Driver responded that he had to call his father.
Bloom returned to his car to retrieve his insurance card. As he walked back towards the blue car, he saw a man, whom he later identified as Aliikea, come running up from the beach. Bloom testified that when Aliikea arrived at the scene, he was " extremely loud, accusing me of causing the accident, saying it's all my fault, trying to intimidate me." Aliikea approached Bloom and pushed him.
Shortly after Aliikea arrived, Basham also came up to the road from the beach. Bloom testified that " when he first came up, [Basham] was . . . just as excited," but within a minute or so, Bloom heard Basham " say to the other one," " don't . . . hit him, don't lick him." Bloom thought, " Oh, he's actually got the cool head in this, so okay, calm down."
Bloom testified that once Aliikea and Basham arrived, Driver " became more vocal." Aliikea then pushed Bloom and pet his hand up to or grabbed Bloom's throat. Bloom knocked Aliikea's hand away, and told Chavez to get behind him. Bloom does not recall what happened next, and remembers only regaining consciousness later in his car.
Chavez testified to a similar sequence of events as Bloom. When Aliikea arrived at the scene, he was " very upset," telling Bloom, " This is your fault," and " kind of pushing [Bloom] back." When Chavez tried to get between Aliikea and Bloom, Aliikea pushed Chavez away. Bloom told Chavez to stay away in Spanish, which is Chavez's first language. Aliikea " start[ed] getting very upset and started pushing" Bloom more strongly. Basham arrived and told Aliikea, " Don't lick him."
Chavez testified that Aliikea then pushed Bloom, causing Bloom to fall backwards on the ground and hit his head. When Bloom tried to get up, Aliikea grabbed Bloom's neck. Bloom tried to take Aliikea's hand away, but fell again. Chavez testified that after Bloom fell again, " [B]y that time [Basham] grab [Bloom] from the back and hold him down, and then . . . [Aliikea] kick him, and then at that moment, the other guy . . . who was driving the car jump on top of [Bloom's] belly."
On cross-examination, Chavez testified that she told Honolulu Police Department (HPD) Officer Chad Barrett about Basham grabbing and holding Bloom down by the shoulders, and about Aliikea kicking Bloom. However, she acknowledged that the written statement, which she had dictated to Officer Barrett just after the incident, did not include such information. Officer Barrett wrote her statement down for her because she was unable to write in English at the time. She signed the statement, attesting that it was " true and correct to the best of my knowledge." Nevertheless, Chavez testified that she told Officer Barrett that Bloom was held down and kicked, but Officer Barrett did not write it down and it was not reflected in the written statement.
Chavez testified that after Bloom fell to the ground, Driver " jump[ed] on top of [Bloom's] belly," and began punching Bloom in the face. Bloom started having a seizure, and Chavez " started screaming," " He's dead. . . . You'll kill him." Chavez testified that was when " they stop[ped]." Chavez helped Bloom walk to the car. She placed Bloom in the front passenger seat, got into the driver's seat, and closed and locked all of the doors.
Chavez clarified that Basham held Bloom down by the shoulders, " [o]nly in the beginning," when Driver jumped on Bloom. No one held down Bloom's shoulders when Driver began punching Bloom. On cross-examination, however, Chavez testified that after Bloom fell, " they pushed him down again,"
[132 Hawai'i 102] and by the time Driver jumped on Bloom, " [b]y that moment . . . [o]ne was on the left side, the other on the right side. And that's why [Bloom] couldn't stand up."
Chavez was on the phone with a 911 operator throughout the incident. Following the operator's instructions, once she and Bloom were back in their car, she turned on the car in order to drive away. However, Basham began punching the window on the driver's side door. The paramedics and police arrived soon after.
Aliikea and Basham remained at the scene when the police arrived. However, Driver had already run away at that point.
HPD Officer Michael Dela Cruz testified that he was patrolling in the Ewa Beach area on September 22, 2007. He responded to a dispatch and arrived at the scene of the accident at around 3:00 p.m. When he arrived, Bloom, Chavez, Basham and Aliikea were present at the scene. Officer Dela Cruz testified that he conducted a field show-up, in which officers " detain possible suspects to have a witness or a complainant make positive identification." Bloom participated in the field show-up and informed Officer Dela Cruz that " he could not positively identify either males [sic] at that time." Chavez also participated in the field show-up and identified Basham.
HPD Officer Keola Kopa testified that on September 22, 2007, the police were dispatched to respond to " several males fighting." Officer Kepa's responsibility " was only to document the accident, . . . nothing more, just the vehicles involved." He attempted to identify the driver of each car involved in the accident. He explained that " if there's no one behind the driver's seat, then we try to get witnesses, and we try to ascertain the driver, either by asking or just - anything at the scene that we can see to help us ascertain who was driving." Based on his investigation, Officer Kopa determined that Basham was the driver of the blue car. Officer Kopa spoke to Basham, but could not remember whether Basham stated that the blue car was his.
HPD detective John Coleman testified that on September 25, 2007, he was assigned to be the lead investigator on the case. He testified that during the course of his investigation, he determined that neither Basham nor Aliikea had any prior criminal history of arrests or convictions. Officer Barrett, who wrote down Chavez's dictated statement after the incident, was not called as a witness by the State.
Basham did not testify during the trial and did not present any witnesses on his behalf.
Aliikea testified to the following facts. He testified that his father, Basham, most recently worked as an adult correctional officer at the Halawa prison. On September 22, 2007, Aliikea and his father were at the beach with family and friends. At some point during the day, his brother left to go and get some ice.
Aliikea was on the beach when he noticed what appeared to be an accident on the road involving his father's car, which he knew his brother was driving. Basham told Aliikea to go and check on what had happened. Aliikea testified that when he approached the cars, he was " not calm" and " appeared angry 'cause I was just frustrated with my brother" and could not " see how people could get in [an] accident on that bridge." Upon arriving, he said, " [W]hat the hell is going on" to both his brother and to Bloom and Chavez. He went to talk to Driver about what had happened. Bloom came towards them to ask about insurance, and Aliikea told him, " [C]an you just back away and so I can figure out what is going on, my dad is almost here." Bloom backed away but then " came back and kept on coming back to talk about the insurance." Aliikea put up his hand to push Bloom away. He testified that he did not yell at Bloom or grab or choke Bloom's neck.
When Basham arrived, he began talking to Bloom, while Aliikea tried to calm Driver down because " [Driver] was getting a little
[132 Hawai'i 103] crazy." Basham then came back to where Aliikea and Driver were standing. Aliikea's attention was directed towards Driver. Aliikea explained that as he was telling Driver to " just let dad handle it," he heard Basham say watch out, and felt Basham push him out of the way. Aliikea turned and saw Bloom falling. He testified that Basham had pushed Bloom. He saw Bloom try to get up, and " all of a sudden" Driver was on top of Bloom, straddling him. Then Driver began punching Bloom in the face. Aliikea stood there " in shock" at first and then pulled Driver off of Bloom. Basham walked over to try to help Bloom up, but Chavez started " whacking" Basham, saying " you're killing him." At some point, Aliikea realized that Driver was no longer present.
Aliikea testified that neither he nor Basham held Bloom to the ground at any time. He also testified. that once Bloom and Chavez were in the car, Basham told him to stop the car because it looked like they were attempting to leave. Aliikea knew that the police were on their ...