CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000667, CR. No. 09-1-0498)
Richard S. Kawana for petitioner.
Stephen K. Tsushima for respondent.
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
This case arises from an incident in which a taxi driver (complaining witness or "CW") was stabbed and robbed after transporting John Walton and Courage Lee Elkshoulder to Manoa Valley. According to the State, after CW drove Walton and Elkshoulder to Manoa, Elkshoulder grabbed CW from behind and stabbed him in the neck; Walton assisted in the attack by reaching over from the rear passenger-side seat and holding CW down.
Police recovered a backpack from CW's taxi, searched the backpack pursuant to a warrant, and recovered a General Nutrition Center (GNC) membership card. Police then contacted GNC and learned that the card was registered in Walton's name. Police also obtained a surveillance video depicting two men crossing the street near where CW had picked up Walton and Elkshoulder. Images from this video were posted on online news sites and shown on the evening news. Police received tips identifying the men in the images as Walton and Elkshoulder and several coworkers identified Walton and Elkshoulder as the men in the images.
The State indicted both Walton and Elkshoulder for Attempted Murder in the Second Degree and Robbery in the First Degree. The Circuit Court of the First Circuit consolidated Walton's and Elkshoulder's trials, and subsequently denied both Walton's and Elkshoulder's motions for severance.
During trial, the State maintained that Elkshoulder stabbed CW while Walton held him down. Elkshoulder and Walton, however, advanced irreconcilable defenses. Specifically, Elkshoulder testified that he was not in the taxi when CW was stabbed. Elkshoulder also introduced a recorded telephone conversation that he had made, in which Walton admitted to stabbing CW. The State argued the recording was not worthy of belief. On the other hand, Walton elicited testimony from CW that it was Elkshoulder who stabbed him. In other words, Walton and Elkshoulder each argued that the other had stabbed CW. The jury found Walton guilty of both Attempted Murder in the Second Degree and Robbery in the First Degree, but found Elkshoulder guilty of only Assault in the First Degree and Robbery in First Degree.
The circuit court sentenced Walton to a life term of incarceration with the possibility of parole for Attempted Murder in the Second Degree and dismissed the robbery charge without prejudice because the jury found that the two offenses had merged, and Walton brought the instant appeal. The Intermediate Court of Appeals affirmed the circuit court's judgment of conviction and sentence.
Walton argues that the circuit court erred in: (1) denying Walton's motion for severance; (2) denying Walton's motion to suppress evidence (i.e., the information obtained from GNC) and identification testimony (i.e., the identification of Walton and Elkshoulder by their co-workers); (3) admitting the recorded telephone conversation; (4) limiting Walton's cross-examination of Elkshoulder concerning the making of the recording; (5) instructing the jury; and (6) denying Walton's motion for judgment of acquittal.
We hold that, on the facts of this case, the circuit court erred in denying Walton's motion for severance. Walton was forced, in effect, to defend against two prosecutors with two different theories of his guilt. The State argued that Walton assisted Elkshoulder by holding CW down, while Elkshoulder argued that it was Walton who stabbed CW. Elkshoulder relied on the recorded telephone conversation in support of his theory, and that evidence appears to have been persuasive. Despite the State's theory of the case, and CW's testimony in support of that theory, the jury — after hearing Walton's admission on the recording — convicted Walton of attempted murder, but convicted Elkshoulder only of assault in the first degree. In these circumstances, Walton was prejudiced and denied a fair trial. The circuit court therefore should have granted Walton's motion for severance. Accordingly, we vacate the ICA's and the circuit court's judgments, and remand Walton's case for a new trial.
Because our resolution of this issue is dispositive, we do not consider several of Walton's other arguments. We do, however, address Walton' s arguments that the circuit court erred in denying his motion to suppress evidence and identification testimony and in instructing the jury, because those issues may arise again on remand in Walton's separate trial. We also conclude that because sufficient evidence supported the jury's verdict, the circuit court did not err in denying Walton's motion for acquittal.
The following factual background is taken from the record on appeal.
On April 8, 2009, the State indicted Walton for Attempted Murder in the Second Degree, in violation of HRS §§ 705-500,  707-701.5,  and 706-656; and Robbery in the First Degree, in violation of HRS § 708-840(1) (b) (i). The State indicted Elkshoulder for the same offenses on November 26, 2008.
A. Consolidation of trials
The State filed a motion to consolidate the trials of Walton and Elkshoulder, stating that the charges involved the same conduct or series of acts and were connected by a single scheme or plan. The State explained that the only reason Walton and Elkshoulder were charged separately was that police had been unable to locate both defendants at or near the same time. This was a result of the fact that Elkshoulder turned himself in to authorities approximately one week after the incident, while Walton fled the state and was not apprehended until mid-March 2010.
The circuit court held a hearing on the consolidation motion, to which both Walton and Elkshoulder objected. During the hearing, Walton's counsel stated that he had just been informed of a recorded telephone conversation between Walton and Elkshoulder in which Walton allegedly made incriminating statements. Walton argued that the recording presented a problem under Bruton v. United States, 391 U.S. 123 (1968). The circuit court granted the State's motion to consolidate, subject to review in pretrial motions.
Before the start of trial, Walton filed a motion for severance, arguing that his rights to confrontation, effective assistance of counsel, and due process of law would be violated by a joint trial. Walton argued that Elkshoulder, using the recorded telephone conversation, would contend that it was Walton who had stabbed CW. Walton argued that because the recording appeared to directly implicate him, his defense conflicted with that of Elkshoulder. The State filed an opposition to the motion, arguing that the recorded phone conversation included Walton's own statements and that Walton's voice had been verified by two of Walton's co-workers, Jeremy Koki and Matthew Rodrigues. The circuit court denied Walton's motion to sever.
On the eve of trial, Elkshoulder filed a motion to sever his and Walton's trials, in which Walton joined, arguing that Elkshoulder would be prejudiced if the State argued that the defendants had engaged in a conspiracy or mutual agreement in making the recording. The circuit court denied the motion.
After trial began, Walton again moved for severance, arguing that the strategies adopted by himself and Elkshoulder were inconsistent and contradictory, and that a joint trial would deprive him of a fair trial. The circuit court denied the motion, stating that no additional information had been presented that would warrant reversal of the prior ruling denying severance.
After trial, the circuit court issued its Findings of Fact and Conclusions of Law and Order denying severance of trials, finding that Walton and Elkshoulder failed to present any new information that had not already been presented to the circuit court when it consolidated the trials. The order also stated that joinder would not be unfair to either defendant. Specifically, the order stated that the recording did not present a Bruton issue because "[u]nlike Bruton, this phone conversation is not a statement made by a non-testifying co-defendant which implicates a defendant in a joint trial." (Emphasis added).
The order further explained that:
[n]either defendant is being prevented from producing evidence which would have otherwise been inadmissible in their separate trials. Had Defendant Walton gone to trial separately, the State could still introduce the taped phone conversation against Walton as his own statement. . . . Although both defendants may attempt to point the finger at the other, the Court does not find this irreconcilable. There is other evidence that this court may consider and in its discretion finds that these matters should be tried together.
B. Suppression of Identification and Evidence
Walton also filed a motion to suppress evidence and identification testimony. Specifically, Walton sought to suppress the identification testimony of Jeremy Koki and Matthew Rodrigues, who identified Walton in still photos taken from a surveillance video recorded on the day of the incident, and in a photographic lineup array. Walton argued that Rodrigues's and Koki's identifications were the result of impermissibly suggestive procedures and not reliable because Rodrigues and Koki had previously viewed surveillance photos of persons identified by the news media as alleged suspects in the incident and discussed with others their belief that Walton was depicted in those photos.
Walton also sought to suppress information police obtained using a registration number on the GNC card recovered from the backpack found in CW's taxi. Walton acknowledged that police obtained a warrant to search the backpack, but argued that police were required to secure an additional warrant to obtain from GNC any information associated with the card's registration number.
The State opposed Walton's motion, stating that the identification procedures used were not unfair or inherently suggestive, because both Koki and Rodrigues had worked with Walton and Elkshoulder for nearly a year, were very familiar with Walton's and Elkshoulder's appearances and personal information, and had already recognized Walton and Elkshoulder in news reports showing the surveillance photos and video before being contacted by police to confirm the identities of Walton and Elkshoulder in photo lineups. The State argued that Koki's and Rodrigues's familiarity with Walton and Elkshoulder supported an unequivocal recognition of them both in the surveillance images and photographic lineups. The State noted that Walton and Elkshoulder were captured on surveillance video while at the corner of Pensacola and Young streets — the approximate location where CW told police he picked up Walton and Elkshoulder — and that police provided the images to television news stations, which broadcast the images. According to the State, police subsequently received an anonymous call identifying the men in the images as Walton and Elkshoulder, and stating that they worked for the Hawai'i Medical Service Association (HMSA). Police then contacted HMSA to speak with anyone who might be familiar with Walton or Elkshoulder.
Regarding the information obtained using the GNC card, the State argued that the police's contact with a GNC store to ascertain ownership of the card based on the card's registration number was allowable under the warrant police obtained to search the backpack found in CW's taxi, which contained the card.
During a hearing on Walton's motion, Rodrigues testified that on November 20, 2008, he went to a news website to view photos of two men accused of a crime, after his supervisor called him and told him to check out the news. Rodrigues testified that he believed his supervisor told him that Elkshoulder and Walton might be depicted in the video.
Rodrigues explained that he was a quality assurance coordinator for HMSA, and that he had supervised Walton for about five months and Elkshoulder for about seven months. Rodrigues testified that he looked at the photos on the website about 20 times and consulted with his family, who had met Elkshoulder. At first, Rodrigues thought that the online images did not depict Walton and Elkshoulder. However, by the time Rodrigues saw the images on the evening news, it was clear to him that Walton and Elkshoulder were the men depicted in the images. Rodrigues testified that he was able to identify Walton based on his stature, his overall appearance, the style of his hair, his glasses, and his backpack.
Rodrigues further testified that a day or two later, police contacted him and showed him the same surveillance photo. About a month after that, Rodrigues was again contacted by police to view a photographic lineup, from which he identified Walton.
Koki testified that he worked for HMSA and that in November 2008, he received a phone call telling him to look at a surveillance photo in an online news report. The person told Koki, "I think it's one of your guys" but did not identify the person depicted in the photo by name. Koki stated that he looked at the online photo about ten times over ten minutes, after which he called his manager and stated that he believed the men depicted in the photo were Walton and Elkshoulder. Koki testified that he concluded on his own that it was Elkshoulder and Walton in the photo.
Koki further testified that he viewed the photo repeatedly because he did not want to believe that it was Walton and Elkshoulder in the photo, but that after he was confident that it was them, he decided to report it to his manager. Koki identified Elkshoulder in the photo by his clothing and hair, and identified Walton by his hair and backpack. Koki stated that almost a month later, he identified Walton and Elkshoulder from a lineup of photos.
HPD Detective Michael Ogawa testified that he prepared a photographic lineup using photos from Hawai'i driver's licenses and state IDs, and showed them to Rodrigues, Koki, and Richard Laumauna, another of Walton's co-workers. Detective Ogawa also showed Koki and Rodrigues photographs taken from the surveillance video.
Detective Ogawa explained that CW identified the two men in the surveillance photo as the men who were involved in the incident. Although CW was able to identify Elkshoulder from a photo lineup, he was unable to identify Walton.
Detective Ogawa further testified that another detective obtained a search warrant to search the contents of the backpack found in CW's taxi. Detective Ogawa explained that the GNC card was found in the backpack, and described the card as a rewards card attached to a key ring. Detective Ogawa further explained that the GNC card did not have a name on it, but that it had an identification number, which he provided to GNC to determine who might be associated with the number.
The circuit court denied Walton's suppression motion. The circuit court found that Koki and Rodrigues identified Walton and Elkshoulder independently as a result of their familiarity with Walton and Elkshoulder, and that the photo lineup had not been impermissibly suggestive. The order noted that Koki and Rodrigues saw the surveillance images of Walton and Elkshoulder shown by news media the day before they were contacted by police to identify Walton and Elkshoulder, and that police did not know Koki and Rodrigues had seen the photos. Specifically, the order explained that:
[e]ach of the witnesses identified Elkshoulder and Walton independently as a result of their contact with defendants. The fact that the photos used in the photo lineup array [are] pictures of the defendants not in the video stills, but pictures of them as they appeared on different dates and times (i.e., photos from driver's license or state identification cards) is not impermissibly suggestive.
The circuit court also concluded that the police inquiry to establish ownership of the GNC card found in the backpack was within the scope of the search warrant and that the card was not a closed container requiring an additional warrant.
C. Recording of telephone conversation
Prior to trial, the circuit court held an HRE Rule 104 hearing regarding the recorded telephone conversation between Elkshoulder and Walton. Elkshoulder indicated that he would offer parts of the recording into evidence as exceptions to the hearsay rule, as an admission by a party-opponent, or as a statement against interest.
Walton objected to the admission of the entire transcript of the recording and the recording itself, arguing that the recording was irrelevant, prejudicial, and that its admission would violate Walton's right of confrontation. The circuit court ruled that it would admit certain portions of the recording, including the portion in which Walton stated that he stabbed CW two to three times. The circuit court stated that it would address confrontation and evidentiary issues at trial.
1. State's Case-in-Chief
CW testified that on November 15, 2008 at approximately 1:00 p.m., two men approached him outside his taxicab near the corner of Pensacola and Young streets and requested a ride. There is no dispute that the two men were Walton and Elkshoulder. CW agreed to give Walton and Elkshoulder a ride, and they entered his taxi. Elkshoulder sat in the rear seat directly behind CW, and Walton sat in the rear seat on the passenger side. At their request, CW drove the men to Manoa.
As the taxi approached Manoa, Elkshoulder asked CW the cost of a fare to Waianae, and whether CW had change for a $100 bill. CW responded that he was not sure if he had change, and Elkshoulder told CW that he would not need change. Walton was on a cell phone during much of the ride and did not speak to CW. Elkshoulder directed CW to drive to a park in Manoa, then changed his mind and said he wanted to go to his sister's home. Eventually, the taxi reached a dead-end street, and Elkshoulder told CW to stop because they had arrived at his sister's house. CW then stopped the taxi and reached to his right to stop the taxi meter.
CW testified that as he turned his head to the right, a left arm grabbed him around the neck from directly behind, and he was cut on the right side of his neck. CW was certain that Elkshoulder had stabbed him, because, at the time, he saw Walton still seated on the rear passenger side of the taxi. CW testified that both men then pinned him down between the two front seats. CW was facing the ceiling of the car and could see both men pinning him down. CW then saw another hand start stabbing him a few more times with a knife. CW grabbed the knife with his left hand, which was cut as he struggled with the person holding the weapon. CW did not see who was holding the knife, but saw three hands trying to pin him down while a fourth hand was trying to stab him. CW was unsure exactly how the struggle ended. The two men opened the rear doors of the taxi, exited and ran.
When police arrived at the scene, they recovered various pieces of evidence, including two knives. One knife was found in the taxi behind the driver's seat. The second knife was found under the taxi, closer to the driver's side of the vehicle. The police also recovered a backpack from inside the taxi. The police obtained a search warrant to search inside the backpack, and its contents included the GNC card.
CW explained that, following the attack, about $90 to $100 was missing from one of his pants pockets, and that his wallet was also missing from another pants pocket. However, CW also testified that he received his wallet and cell phone from the hospital when he was discharged a few days later.
Detective Ogawa testified that on November 17, 2008, he reviewed evidence recovered from the backpack pursuant to a search warrant, including the GNC card and a Powerhouse Gym membership card. Detective Ogawa called the Ala Moana branch of GNC, provided the store with the number that was printed on the GNC card, and GNC provided him with a name associated with the card. Detective Ogawa also called Powerhouse Gym, which provided him with a name associated with the gym membership card. The GNC card was associated with Walton and the Powerhouse Gym card was associated with Elkshoulder.
Detective Ogawa testified that he showed CW the photos from a surveillance video taken near the corner where CW had indicated he picked up the passengers who attacked him. CW identified the men in the photos as the passengers who attacked him, and Detective Ogawa then released copies of the photos to news media via Crime Stoppers. Detective Ogawa then received tips via Crime Stoppers identifying Walton and Elkshoulder. The tips also revealed that Walton and Elkshoulder worked for Staffing Partners as temporary workers in the HMSA building. Detective Ogawa contacted a Staffing Partners employee who confirmed that Walton and Elkshoulder were employees of the company. Detective Ogawa then contacted HMSA and interviewed Koki, Rodrigues, and Laumauna. Detective Ogawa showed the surveillance photos to Koki and Rodrigues, who identified Walton and Elkshoulder. Detective Ogawa also showed Koki and Rodrigues photographic lineups that included state identification photos of Walton, Elkshoulder and others with similar appearances. Koki and Rodrigues each identified Walton and Elkshoulder from the lineups.
Rodrigues testified that he worked at HMSA and supervised both Walton and Elkshoulder. On approximately November 18, 2011, Rodrigues's supervisor, Koki, directed him to view photos on an online news site to try to determine who was in the photos. Rodrigues recognized Elkshoulder and Walton in the photo, but he did not want to believe that it was them. Rodrigues looked at the photo on the news site repeatedly because it appeared fuzzy, but seeing a clearer image on the evening news confirmed to him that the men in the photo were Elkshoulder and Walton.
Rodrigues testified that Elkshoulder called him on November 19, 2011, and Rodrigues asked Elkshoulder if he knew his face was being shown on the news. According to Rodrigues, Elkshoulder responded that "he's sorry, that he messed up" and that "[t]hings weren't supposed to go down that way." Elkshoulder also told Rodrigues that he did not mean to hurt anybody.
Rodrigues further testified that Elkshoulder and Walton always worked together, arrived together, and left together. According to Rodrigues, Elkshoulder seemed like an adult leader and Walton seemed like a follower who was young and clueless. Elkshoulder would tell Walton what to do, and Walton would listen and not argue. On cross-examination by Elkshoulder, Rodrigues stated that during his telephone conversation with Elkshoulder, Elkshoulder did not discuss details of the incident involving CW, or refer to who stabbed anyone.
Laumauna testified that he worked with Elkshoulder and Walton at HMSA, and that he had invited them to his grandniece's birthday party at Ala Moana Beach Park on November 15, 2008, but that neither Elkshoulder nor Walton attended. While Laumauna was at the party that day, he received a call from Elkshoulder, who asked him for a ride from his sister's house in Manoa. Elkshoulder told Laumauna that "they" needed a ride from Manoa, which Laumauna understood to mean that Walton was with Elkshoulder. Laumauna did not pick up Elkshoulder because he was hosting the party. In court, Laumauna was shown one of the surveillance video photos, and he identified the two men in the photo as Elkshoulder and Walton.
Trauma surgeon Frederick Yost, M.D. testified that he treated CW for two stab wounds to the neck. Dr. Yost testified that CW also suffered lacerations on his right forearm and left hand and a puncture wound on his right hand. On cross-examination, Dr. Yost testified that one of CW's neck wounds could have caused death if untreated, but that death from his other wounds was unlikely.
After the State rested, Walton and Elkshoulder each moved for a judgment of acquittal. The circuit court denied the motions.
2. Elkshoulder's defense
Elkshoulder testified in his own defense. Elkshoulder stated that on November 15, 2008, he had planned to go to Laumauna's grandniece's birthday party at Ala Moana Beach with Elkshoulder's girlfriend and her friend. According to Elkshoulder, Walton showed up unexpectedly at Elkshoulder's apartment at around 11:30 a.m. According to Elkshoulder, Walton told him that he needed a place to stay, and asked if he could stay with Elkshoulder, who declined. At some point, Elkshoulder's girlfriend no longer wanted to go to the party, so, at about 12:30 p.m., Elkshoulder and Walton began walking down Pensacola Street toward Ala Moana.
According to Elkshoulder, Walton suggested catching a taxi to go and get some money from a friend, at which point Walton approached CW's taxi and asked for a ride. Elkshoulder testified that Walton directed CW where to go. According to Elkshoulder, when the taxi stopped in Manoa, "it just happened real fast." Elkshoulder explained that Walton whispered to him to "get my back, " and Elkshoulder thought that Walton was going to run out of the taxi without paying. Elkshoulder testified that Walton then jumped on CW, at which point Elkshoulder exited the taxi. Elkshoulder stated that once he exited the taxi he walked away at a fast pace but did not run. Elkshoulder stated that he heard the taxi's horn honking repeatedly, and looked back and saw the taxi shaking. According to Elkshoulder, Walton exited the cab from the back driver's side. Elkshoulder testified that he continued walking, heard running behind him, turned and saw Walton running toward him. Elkshoulder stated that he began to run away because he saw what looked like blood on Walton's shirt and shorts. Elkshoulder stated that Walton followed him into a small ravine, and that the following exchange occurred:
I turned to him and just the look on his face and he said I can't believe it, I can't believe it. And I said what and he said I stabbed him, I stabbed him. And my -- my heart just sank when I heard him say that, especially when I put together that what was on him when he came out was blood. And I didn't know if [CW] was -- I didn't know what happened to him, if he was still alive or whatever.
Elkshoulder stated that he kept walking and wanted to get away from Walton. Elkshoulder stated that he called Laumauna to ask for a ride, and that Laumauna said he was busy setting up at the party. According to Elkshoulder, he walked from Manoa to Kapiolani Park and stayed there for several days. On November 17, 2008, Elkshoulder walked to Walton's girlfriend's house, told Walton he planned to turn himself in to police, and urged Walton to turn himself in. Elkshoulder stated that Walton refused to turn himself in and said he would leave, but did not say where he would go.
Elkshoulder testified that Rodrigues called him a few days after the incident, and informed Elkshoulder that his face was "all over the news and the paper." Elkshoulder testified that he told Rodrigues: "I didn't have anything to do with it. I messed up by going with John Walton and that was it." Elkshoulder further testified that he told Rodrigues that "[i]t wasn't supposed to happen that way, I didn't know it was going to happen that way, " and that "I said I didn't hurt anybody and I would never mean to hurt anybody." Elkshoulder turned himself in to authorities and was arrested on November 21, 2008.
According to Elkshoulder, Walton called Elkshoulder's cell phone on November 17, 2009 at about 10:00 a.m. from a number with a Kansas area code. Elkshoulder told Walton that he was busy and to call back in the evening. After hanging up, Elkshoulder immediately called his attorney, a deputy public defender (DPD). After consulting with the DPD, Elkshoulder obtained a tape recorder and audio tape. Elkshoulder stated that his purpose for getting the tape recorder was to get Walton's side of the story and "[t]he truth of what happened that day."
Walton called back that evening, while Elkshoulder was at his parents' home. Elkshoulder put his cell phone on speaker mode and began to record his conversation with Walton. Elkshoulder stated that he did not record the entire conversation, because the cassette tape had 60 minutes of recording capacity and he did not want to waste any recording space on small talk. Consequently, there were gaps in the tape that indicated times when Elkshoulder turned the recorder on and off. Elkshoulder identified his Exhibit C as an accurate but edited and shortened version of the taped recording. Elkshoulder offered it into evidence, upon which Walton requested and conducted a voir dire examination.
During the voir dire examination, Walton asked Elkshoulder about his conversation with the DPD prior to making the cassette recording. The DPD objected and, at a bench conference, stated that such questioning infringed on the attorney-client privilege. Walton argued that the DPD had made himself a witness to how the recording was made. Walton also complained that the recording was not authenticated by any means other than Elkshoulder's self-serving statements. Walton asked the circuit court to allow questioning of the DPD about his involvement in producing the recording.
The State agreed with Walton that the DPD had made himself a witness in this case by trying to introduce the recording. The DPD stated that he was not a witness because he was not present when the recording was made. The DPD also argued that an adequate foundation was laid for the recording, and that Walton's and the State's arguments went to the weight of the evidence rather than its admissibility. The circuit court stated that it would be a fair line of questioning to ask Elkshoulder why the tape had been made, but that the DPD could not be questioned as a witness.
Walton argued that the DPD made himself a witness by being directly involved in transferring the tape to CD format. Walton argued that he should be able to inquire about the conversation the DPD had with Elkshoulder prior to the making of the recording.
Walton filed a memorandum in support of his request to question Elkshoulder regarding his discussions with the DPD regarding the recording. The court sustained Elkshoulder's objection as to attorney-client communications, but ruled that Elkshoulder was subject to cross-examination concerning his purpose and motive for recording the conversation, and concerning various copies of the recording. The circuit court stated that Elkshoulder laid a proper foundation for the recording, and also stated that prior to trial, the court listened to the original CD recording and the enhanced CD recording several times to evaluate the content of the recording. The circuit court stated that Walton had no legitimate need to determine what was communicated between Elkshoulder and the DPD concerning the taped conversation.
The circuit court further ruled that Walton's inquiries regarding whether the contents of the recording that were transferred to the CD went to the weight of the evidence and noted that Elkshoulder had made himself subject to cross-examination. The circuit court noted that all copies of the recording had been available for weeks prior to trial to both the State and Walton's counsel to listen to and compare. The circuit court further stated that Walton had moved to continue the trial date on more than one occasion for the specific purpose of conducting tests on the recording and had never filed a timely motion regarding the recordings.
The CD version of the recording was entered into evidence over objections by Walton and the State. The court instructed the jury that the recording included portions of a telephone conversation between Elkshoulder and Walton, noted that the recording had been edited by the court, instructed that the jury must not speculate about what may have been edited out, and explained that the recording would be available to the jury to listen to during deliberations. The recording was then played for the jury.
The recording included the following exchange:
ELKSHOULDER: Dude . . . Dude . . . how many times did you stab that guy, do you remember . . . between you and me . . .
WALTON: I think 2-3 times . . .
ELKSHOULDER: Oh . . . okay . . . well, the thing is this . . .
WALTON: I just remember stabbing like to the side . . . but 2-3 times. Elkshoulder testified about the recording on direct examination as follows:
BY DPD: Okay. . . . [S]o when you made these recordings, why did you make these recordings?
A: I wanted the truth to come out. I wanted to basically just the truth to come out.
Q: Is there a way that you had planned to converse with [Walton] during these conversations?
A: No. When he called me the first time, that's when I called you . . . and then we -- we consulted. And then the second time it wasn't a plan, it was just a matter of him calling and just recording and trying to really put Mr. Walton at ease. And when I say at ease, there were some things that I had to say that were not true.
Q: Like what?
A: I told him I took the heat for both of us. Again, I hadn't talked to him in a year, I didn't know where he was except for the 785 area code, even [if] it was his phone. So, again, with respect to the recording of the conversations that we had, there were other things in there, again to put him at ease, I had to say that were not true.
Q: So the first recording, this was -- well, the first phone call was, again, what day?
A: November 17th and that was in the morning --
A: -- on or around about 10 AM. And the second phone call was the same day that evening.
Q: Okay. The second phone call you called him or he called you?
A: He called me.
On cross-examination by Walton, Elkshoulder acknowledged that the backpack found in CW's taxi had his name written on it, but testified that he had given the backpack to Walton more than one month before the incident. Elkshoulder said a hair-band and computer flash drive that police found in the backpack belonged to him, but that he did not know whether a Powerhouse Gym membership card found in the backpack was the one Walton had given to him.
On cross-examination by the State, Elkshoulder testified that he immediately exited the taxi when Walton jumped on CW because he was scared, but acknowledged that he did not see Walton with a knife or other weapon. According to Elkshoulder, when he was 30 or 40 feet away from the taxi, he heard its horn honking, turned, and saw Walton running toward him, then Elkshoulder began running while Walton began calling his name. Elkshoulder stated that he saw blood on Walton's shorts and shirt.
Elkshoulder further testified that he later spoke to Rodrigues on the telephone and told him that he did not mean for anyone to get hurt and that he "didn't have anything to do with it." Elkshoulder stated that he recorded his conversation with ...