CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29550; CR. NO. 08-1-0977)
Jason Z. Say for petitioner.
Stephen K. Tsushima for respondent.
ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J., CONCURRING & DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
In this appeal, Petitioner/Defendant-Appellant Enrico Calara challenges multiple evidentiary determinations by the Circuit Court of the First Circuit ("circuit court") Calara was convicted of sexual assault in the fourth degree, in violation of Hawai'i Revised Statutes ("HRS") § 707-733 (1) (a) (1993),  for allegedly fondling the breast of the Complaining Witness ("CW"), his adult niece, while she slept. On certiorari, Calara presents five questions:
1. Whether the ICA gravely erred in holding that Calara's right to present a complete defense was not violated when the circuit court precluded him from introducing evidence of the complainant's drug pipe and by cross-examining the complain[an]t about her drug use for the purposes of attacking her perception and recollection.
2. Whether the ICA gravely erred in deciding the issue of whether the circuit court erred in admitting the police detective's testimony that probable cause was established to arrest Calara for sexual assault in the fourth degree under the plain error standard of review and in failing to hold that the testimony was irrelevant and improper.
3. Whether the ICA gravely erred in concluding that the admission of CW's statement to [her aunt, ] Theresa Nishite as an "excited utterance" was harmless beyond a reasonable doubt.
4. Whether the ICA gravely erred in concluding that the evidence of Calara's prior statements uttered in January 200 and February 200 to establish his intent were relevant.
5. Whether the ICA gravely erred in holding that the circuit court's failure to provide a limiting instruction at the time of CW's testimony regarding Calara's alleged prior statements and as part of the final charge to the jury was not plain error.
We conclude that the second question presented requires vacating Calara's conviction and remanding his case for a new trial. We hold that the circuit court abused its discretion by admitting the testimony of a police detective, a long-time veteran of the Sex Crimes Detail, that probable cause existed for arresting Calara. Such testimony was inadmissible under State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990), State v. Morris, 72 Haw. 527, 825 P.2d 1051 (1992), State v. Ryan, 112 Hawai'i 136, 144 P.3d 584 (App. 2006), and State v. Baron, 80 Hawai'i 107, 905 P.2d 613 (1995), because the testifier was imbued with an aura of expertise due to his experience, and because the testimony implied that the CWs version of the events was truthful and believable, thus invading the province of the jury. This opinion briefly addresses the remaining questions presented to aid the circuit court on retrial.
With regard to the first question presented, we hold that the circuit court should have conducted a Hawai'i Rules of Evidence ("HRE") Rule 104 hearing to determine whether there was admissible evidence concerning the CW s alleged drug use and its effect upon her perception. With regard to the fourth question presented, we hold that the circuit court should have excluded Calara's earlier statements that he wanted to "take" the CW because the statements were, at their core, character evidence used to show action in conformity therewith, and were not admissible under an HRE Rule 404(b) exception. As such, it is not necessary to reach the fifth question presented, whether a limiting instruction should have accompanied the admission of the statements. Lastly, because we remand this case for a new trial, we need not, and do not, reach the third question presented: whether the ICA gravely erred in holding that the circuit court's error in admitting the CWs statements to her aunt as an excited utterance was harmless beyond a reasonable doubt.
On June 23, 2008, Calara was charged by Complaint with "knowingly subject[ing the CW] to sexual contact by compulsion or [causing the CW] to have sexual contact with [him] by compulsion, thereby committing the offense of Sexual Assault in the Fourth Degree, in violation of Section 707-733(1)(a) of the Hawaii Revised Statutes."
The charges stemmed from an incident in the early morning hours of March 13, 2007 in which the CW, Calara's adult niece temporarily staying with the Calara family, accused Calara of entering her bedroom at night and fondling her breast without her consent. Calara, on the other hand, denied that he sexually assaulted the CW, testifying that he was in his bedroom all night when the incident allegedly occurred.
A. Pre-Trial Motions in Limine
1. Drug Pipe
Relevant to the first question presented, in a Notice of Intent to Use Evidence, Calara signaled his intent to introduce at trial the following "evidence of other crimes, wrongs, or acts involving" the CW:
d. When packing up the Complainant's personal belongings on or about March 14, 2007, Mrs. Calara discovered a pipe in the room the Complainant had been using. Mrs. Calara called HPD to do a test on the pipe. The pipe had a bulb[o]us end and smelled "funny." Previously, this room had only been used by [Calara's] nine-year old daughter.
The State filed its Motion in Limine to exclude evidence of the CWs prior bad acts. The circuit court heard the pre-trial motions on December 2, 2008 and precluded the admission of the pipe into evidence, concluding the following:
I think the evidence is so remote, so tangential and so unreliable as to whether or not this is [the CWs] pipe and whether she smoked it on March - the early morning hours of March 13th, that the court should not allow this.
It's more prejudicial than probative and it is really very - shall I use the word - flimsy evidence that right now, based on what you've presented, that this was her pipe and that she used it on or about the date of the alleged offense so that it has relevance to the allegations in this case .
Defense counsel then requested a HRE Rule 104 hearing to call Mrs. Calara to testify that she found the pipe within the CWs belongings, to call the CW to testify as to whether she used the drug pipe on March 13, 2007, and, if so, whether drug use affected her perception of the incident, arguing as follows:
At the 104 hearing I'd be prepared to present my client's wife as a witness to testify exactly where she found [the pipe], in what belongings, because the only person using that room for four months was the complainant. No one used the room after she left until they packed up her things. And it was found in her things. . . . It's clear [the pipe] belonged to her. At - I think a 104 hearing is at least necessary to clarify that she was not under the influence - or did not use that item on the date of this incident and affecting her perception.
The circuit court denied the request as follows:
The court's ruling is that the 104 hearing is not going to be able to establish who used the pipe, when it was used, and therefore it has no relevance to the case. And the fact that it involves marijuana, or at least - I don't know what it involves, what kind of drug. We don't know. Only that it smelled funny - is more prejudicial than probative. I don't know what smelled funny means. . . . And a 104 hearing is not going to cure [the problem of what substance was in the pipe] because the HPD did not do a test on the pipe .
2. Police Testimony Regarding Probable Cause
Relevant to the second question presented, Calara's Motion in Limine also sought to exclude "references by HPD officers, to the effect that , all elements' were met for an arrest/crime as irrelevant under HRE 403 and because such legally conclusive language invades the province of the jury."
The circuit court granted Calara's motion in limine and further ruled as follows:
With regard to legally conclusive language as to HPD saying all elements of the crime were met, the court is going to grant the request. However, the court is going to allow the prosecution to ask the question whether or not in the police officer's mind probable cause was met for an arrest to be made.
And the reason for the court's ruling is to avoid any confusion in the jury's mind as to whether or not the standard of conviction is somehow less than proof beyond a reasonable doubt, which includes proving all the elements of the offense and not the standard for the arrest of any individual.
3. January and February 2007 Statements
Relevant to the fourth question presented, in a Notice of Intent to Use Evidence, the State signaled its intent to introduce at trial the following two statements "pursuant to Hawaii Rules of Evidence Rule 404(b), as evidence of [Calara's] intent, motive, modus operandi and lack of mistake or accident . . . [but] not ... to prove the character of the defendant or to show [Calara] acted in conformity with these other acts":
5. In January 2007 in Hawai'i, [Calara] made sexual advances towards [the CW]. [Calara] said that he just wanted to grab and take [the CW].
6. In February 2007 in Hawai'i, [Calara] again told [the CW] that [Calara] wanted to take her.
Calara filed a Motion in Limine to exclude the January and February 2007 statements as "unfairly prejudicial under HRE 404 and irrelevant under HRE 403. ..." The circuit court denied Calara's motion in limine to exclude the statements, stating the following:
That the two events in question in January and February 2007, two prior events in question, [are] fairly close in time to the date of the alleged offense on March 13, 2007.
And in the court's view what it goes to show is the state of mind of the defendant at the time. It is apparent from these statements that [the CW] became the object of [Calara's] desire, and when you -- sexual desire, inappropriate as it was. The fact that she rebuffed him, again, I would agree goes to the issue of lack of consent.
And the intent I think is also demonstrated by the proffer that was made, and the court does agree that the prejudice -- prejudice to the defense and to the defendant is low. It doesn't mean that he assaulted her prior to the events of March 13, 2007, only what his state of mind was, what his intent [was] .
I don't think it's a question so much of modus operandi as much as it is lack of consent, state of mind, and the fact that it shows that he had some sexual interest perhaps in the complaining witness.
1. Testimony of the CW
Trial commenced on December 3, 2008. The State called the CW to testify first. She testified that she returned to Hawai'i from the mainland in December 2006 with her two-and-a-half-year-old daughter and six-month-old son and stayed with Calara, his wife Debra, and their three children. She stayed for three months in a bedroom formerly occupied by the Calaras' youngest child, a nine-year-old girl.
The CW testified that in January 2007, Calara "expressed an interest to develop a physical relationship" when he told her "he wanted to . . . grab and take [her]." The CW understood this statement to mean "he wanted to have sex." The CW testified she was not interested because "he was married to my aunt and [the CW was] not attracted to him." She testified that she told Calara "that wasn't possible." The CW testified that again in February 2007, Calara told her "[h]e wanted to take [her], " which she understood to mean "he wanted sex, " and she again told him she was not interested and "blew him off and ignored him." The CW testified that she did not know whether Calara was "serious" when he made both the January and February 2007 statements. She also stated that she liked talking with her aunt Debra on a daily basis, and if Calara was not serious, she did not want to "make a big deal out of it" or hurt Debra's feelings.
The CW testified that during the early morning hours of March 13, 2007, she was asleep in a bedroom that she shared with her two children. She awoke when she "felt something cold on [her] breast." She determined it was Calara's hand, which was "massaging" and "manipulating" her bare breast. The CW testified that she screamed and Calara "jumped back and . . . kept saying I'm sorry" and that he did not "know what [he] was thinking" three to four times. After about five to ten minutes of standing in the room and apologizing, Calara left the room. The CW testified she stayed up all night, in shock, and got out of bed later that morning at 6:00 a.m. to prepare for an 8:00 a.m. meeting with a First to Work counselor. The CW stated that she felt "very upset and betrayed and violated."
Calara and Debra drove the CW to her First to Work appointment. The CW did not recall confronting either of them with what had happened earlier that morning. The First to Work counselor was the first person to whom the CW disclosed what had happened. The CW then called her other aunt, Theresa, to pick her up from the First to Work appointment. She then disclosed the incident to Theresa. The CW also disclosed to Debra what had happened and was upset that Debra did not believe her. After this conversation, the CW gave a statement to Honolulu Police Department ("HPD") Officer Enrico Domingo, and met with HPD Detective Fred Denault, with whom she identified Calara from a photographic line-up. The CW and her children then moved to Theresa's house.
2. Testimony of Theresa Nishite
The State then called Theresa Nishite (Debra's sister and the CWs aunt). Theresa testified that she picked the CW up from her First to Work appointment at around 11:00 a.m. or 12:00 p.m., and that the CW was "crying the whole time, " "obviously very distraught, " and "very upset." When asked by the State what the CW told Theresa, defense counsel objected on the ground of hearsay, and the State countered that the statement to be elicited was an excited utterance. The court sustained the objection as "needing more foundation." Theresa then testified that the CW's face was "all red and she had tears coming down her face" and was "gasping" and "having hard time talking" because she had been crying and "was in some kind of trouble." The circuit court decided to admit the statement as an excited utterance, reasoning as follows:
[I]t seems to me that (unintelligible) of the startling event or incident and that this was the first opportunity that [the CW] had to tell somebody about it. She did not discuss it with anybody else from the time that the incident allegedly occurred of 2:30 in the morning.
She testified that she - previously testified that she woke with the intention of taking the bus but that she accepted the offer to drive her to the DHS office from the Calaras, and it was at that particular point that she saw her Aunt Theresa that she began to engage in this emotional outburst.
And the court does believe that the sufficient foundation has been laid and that she made these utterances while still under the stress of the excitement caused by the event or condition.
The "excited utterance" eventually elicited from Theresa was the following:
(Unintelligible) said that she went to sleep and that [Calara] had come into her bedroom and had touched her under her shirt and her kids were in the room and (unintelligible) while she was talking she was crying so she kind of (unintelligible) to kind of continue on but to the gist of it she just had mentioned that ...