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 CWs 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 ...