As corrected February 6, 2015.
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CR NO. 09-1-1549).
On the briefs: Samuel P. King, Jr., for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
NAKAMURA, CHIEF JUDGE, AND FOLEY AND FUJISE, JJ.
[134 Hawai'i 379] OPINION
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Anthony Andrew Locken (Locken) by felony information and non-felony complaint with second-degree assault against Larsen Kaneda (Kaneda) (Count 1) and third-degree assault against Karinne Wong (Wong) (Count 2). Kaneda went to high school with and was friends with brothers Konrad Bruesehoff (Konrad) and Hans Bruesehoff (Hans), who were Locken's roommates, and Kaneda knew Locken through the brothers. Wong was Kaneda's girlfriend.
The charges stem from an alleged assault that occurred after a group of people, which included Locken, Kaneda, Wong, Konrad, and Hans, had gone out for the evening. The group then went to Konrad's and Hans' house and got into an argument over how Locken had behaved while they were out. Wong alleged that during the argument, Locken grabbed her and kicked her, causing her to feel pain and cry. Kaneda alleged that when he came to his girlfriend's defense, Locken kicked him, causing the dislocation of his right shoulder and an indentation fracture in the bone socket. Locken presented contrary evidence though witnesses who testified that Locken did not grab Wong and did not kick Wong or Kaneda.
After a jury trial, Locken was found guilty of the lesser included offense of third-degree assault on Count 1 and guilty as charged of third-degree assault on Count 2. The Circuit Court of the First Circuit (Circuit Court) sentenced Locken to concurrent terms of probation for one year on each count.
Locken appeals from the " Judgment of Conviction and Probation Sentence" (Judgment) entered by the Circuit Court on July 11, 2011. On appeal, Locken contends that: (1) the Circuit Court erred in allowing the introduction of Locken's " prior bad act," which involved a prior incident where Locken caused a fight that resulted in injury to Konrad; (2) the Circuit Court erred in issuing a " blanket" restriction on defense counsel's cross-examination that precluded him from asking witnesses if they were lying; (3) the Circuit Court erred in denying defense counsel's request to recall a defense witness to ask a question counsel forgot to ask, and that defense counsel's failure to ask the question constituted ineffective assistance of counsel; and (4) the Circuit Court erred in instructing the jury on self-defense. As explained below, we affirm the Circuit Court's Judgment.
The main people involved in this case and their relationship to each other are as follows. Locken was a roommate of brothers Hans and Konrad. Kaneda went to the same high school as Hans and Konrad, was classmates with Konrad, and was friends with both brothers. Wong was Kaneda's girlfriend and was friends with the brothers. Kaneda and Wong knew Locken through the brothers. Locken and Konrad, along with Sean Diaz (Diaz) and Mike Rubino (Rubino), were classmates at a California State university maritime academy. After graduating from the academy, Locken moved to Hawai'i to work and began residing with Konrad and Hans. At the time, of the charged incident, Diaz and Rubino resided in California, but were visiting Locken and Konrad in Hawai'i and were staying with Locken, Konrad, and Hans at the brothers' house. The brothers' mother and the mother's boyfriend, Mark Murray (Murray), lived next door.
On the night of the charged incident, a group of eight people, consisting of Locken, Konrad, Hans, Kaneda, Wong, Diaz, Rubino, and Ryan Katahara (a high school classmate of Kaneda and Konrad), went to Dave & Buster's. The group left Dave & Buster's after being there for about two hours. Outside of Dave & Buster's, Locken got into a dispute with a " local guy" and challenged the local guy and his friends to a fight. Wong intervened to break up the confrontation, saying " we don't want any trouble[.]" The potential altercation was averted and the group of eight drove to the brothers' house.
[134 Hawai'i 380] II.
At trial, the testimony of the State's witnesses and the defense witnesses about what happened at the brothers' house diverged sharply. The State called Kaneda and Wong, who testified as follows.
At the brothers' house, Wong asked Locken why he wanted to " cause a scene or cause trouble" and place the people with him at risk of getting hurt. Hans, who had been with the group that evening, was disabled; Hans had a pacemaker in his heart and three artificial discs in his back. Wong had been present less than six months before, when Locken was involved in a similar incident in which Konrad had been " falsecracked" by a " local guy" that Locken wanted to fight.
Wong asked Locken if he was going to pick himself and his pride over his friends' well-being. When Locken responded that he would pick himself, Hans joined the conversation and asked Locken why Locken would say something like that. Locken became aggressive, put up his hands, and challenged Hans to a fight. This angered Hans, who argued with Locken. Konrad blocked and restrained Locken and Rubino blocked and restrained Hans to keep Locken and Hans apart. However, Locken continued to call out Hans, saying he " could take [Hans] down[.]"
Wong tried to calm Locken, telling him that because of Hans' condition with a pacemaker in his heart and artificial discs in his back, Hans could get hurt or die if pushed the wrong way. In' response, Locken asked Wong if she wanted to fight too. As Konrad was trying to restrain Locken, Locken grabbed Wong's arm twice and kicked her in the right thigh, causing her to begin crying.
Kaneda got between Locken and Wong and asked Locken, " What are you doing hitting a girl?" Locken started " wheeling kicks" at Kaneda and landed three or four kicks to Kaneda's right shoulder. Murray, the boyfriend of the brothers' mother, came over, to break things up. Locken challenged Murray to a fight, saying, " You want to go too, old man?" The brothers' mother then came over and finally separated everyone, with the brothers, Kaneda, Wong, and Katahara going to the mother's house.
The State also called Hans and Murray as witnesses. Hans and Murray corroborated the testimony provided by Kaneda and Wong.
The State presented medical evidence from Dr. Elizabeth Ignacio (Dr. Ignacio), an orthopedic surgeon. Dr. Ignacio testified that Kaneda sustained " an anterior inferior shoulder dislocation," associated tissue damage, and an " indentation fracture" or " impaction fracture"  of his shoulder ball joint, and that the injury was " recent" when she examined him. The State also introduced pictures of Wong taken two days after the incident that showed a large bruise on her leg, as well as bruises on her arm.
The defense called Diaz and Rubino, Locken's classmates from the maritime academy, as witnesses. Dias and Rubino presented a markedly different picture of what occurred at the brothers' house. According to their testimony, Wong and Hans were " acting drunk" and were angry at Locken for what had happened earlier that evening. Wong yelled hysterically at Locken, who ignored Wong or told Wong to mind her own business. In response, Wong lunged at Locken and tried to scratch or strike him. Kaneda tried to pull Wong away, and Konrad pushed Locken back into a chair and kept him from getting up. Diaz and Rubino testified that Locken did not grab Wong and did not kick or strike Wong or Kaneda. Locken did not testify at trial.
Locken contends that the Circuit Court erred in permitting the State to introduce [134 Hawai'i 381] evidence of the prior incident in which a " local guy," whom Locken wanted to fight, " falsecracked" Konrad. Locken claims that the Circuit Court erred in permitting this " prior bad act" evidence pursuant to Hawai'i Rules of Evidence Rule 404(b). We disagree.
HRE Rule 404 (b) (Supp. 2013) provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.
(Emphasis added.) Under HRE Rule 404(b), evidence of " other crimes, wrongs, or acts" is admissible when: (1) it is relevant to any fact of consequence other than the defendant's propensity to commit the crime charged; and (2) its probative value is not substantially outweighed by the danger of unfair prejudice. State v. Renon, 73 Haw. 23, 31-32, 828 P.2d 1266, 1270 (1992). A trial court's determination that evidence is relevant turns on the application of HRE Rule 401 (1993) and is reviewed under the right/wrong standard. State v. Cordeiro, 99 Hawai'i 390, 404, 56 P.3d 692, 706 (2002). The trial court's decision in balancing probative value against unfair prejudice involves the application of HRE Rule 403 (1993) and is reviewed for abuse of discretion. Id.
The list of permissible purposes for the admission of " other bad acts" set forth in HRE Rule 404(b) is not intended to be exhaustive. State v. Clark, 83 Hawai'i 289, 300, 926 P.2d 194, 205 (1996). Under HRE Rule 404(b), any purpose for which bad-acts evidence is introduced is a proper purpose as long as the evidence is not offered solely to prove the defendant's criminal propensity. Id. at 301, 926 P.2d at 206 (citing United States v. Miller, 895 F.2d 1431, 1436, 283 U.S.App.D.C. 9 (D.C. Cir. 1990)).
Here, the prior incident involving Locken was introduced to place in context Wong's conduct in questioning Locken about his behavior earlier that evening, when Locken had challenged a " local guy" and the local guy's friends to a fight. It explained why Wong was so concerned that Locken's actions had placed the safety of others in the group at risk and why she asked Locken whether he would pick his pride over his friends' safety. The prior incident was relevant to showing the context for the questions directed at Locken by Wong and Locken's reaction to those comments. It also showed that Wong had good reason for questioning Locken's behavior that evening and thereby assisted the jurors in assessing Wong's credibility. We conclude that the prior incident was relevant and admissible under HRE Rule 404(b). See
Clark, 83 Hawai'i at 300-03, 926 P.2d at 205-08 (concluding that prior incidents of domestic violence were admissible under HRE Rule 404(b) to show the context of the relationship between the defendant and the alleged victim); State v. Iaukea, 56 Haw. 343, 348-54, 537 P.2d 724, 729-32 (1975) (concluding that evidence of the defendant's prior crimes, which explained and placed in context the complaining witness's statements and actions, was admissible).
In addition, the Circuit Court gave the jury a limiting instruction, which prohibited the jury from using evidence of the prior incident to determine that Locken was a person of bad character. The jury is presumed to follow a trial court's instruction, and the limiting, instruction served to mitigate any unfair prejudice resulting from the evidence of the prior incident. State v. Kazanas, 134 Hawai'i 117, 129, 336 P.3d 217, 229 (App. 2014). We conclude that the Circuit [134 Hawai'i 382] Court did not err in admitting evidence of the prior incident.
Locken argues that the Circuit Court erred in issuing a " blanket" restriction on defense counsel's cross-examination that precluded him from asking witnesses if they were lying. A question that accuses a witness of lying may be argumentative and may be precluded on that ground. However, asking a witness if he or she is lying is not always an impermissible question, and therefore, a blanket prohibition against this question is unwarranted. We conclude that the Circuit Court erred to the extent that it imposed a blanket prohibition on defense counsel's asking witnesses whether they were lying. However, under the circumstances of this case, we conclude that any improper restriction imposed by the Circuit Court on defense counsel's cross-examination did not affect Locken's substantial rights and constituted harmless error.
The issue arose during defense counsel's cross-examination of Kaneda. On direct examination, Kaneda testified that he sustained an injury to his right shoulder as the result of Locken's kicks. However, Kaneda admitted that when he first went to see Dr. Samuel Kim (Dr. Kim), for the injury shortly after the incident, he told Dr. Kim that his right shoulder had been injured after he fell down some steps and landed on the shoulder. Kaneda explained that he lied to Dr. Kim because " I just felt so ashamed of -- because for me, as a boyfriend for [Wong,] I was not there in time for her because it all happened so fast that I could not be able to help her in time. The damage was already done, so -- and I was just ashamed of saying that." Kaneda testified that he later went back and told the doctor what actually happened because the information might help the doctor diagnose and treat his injury.
On direct examination, Kaneda also testified that he did not immediately report the incident to the police because he was scared -- he lived only a few blocks away from Locken and was afraid Locken would retaliate if Kaneda filed a police report. In describing the argument between Locken and Hans that preceded Locken's assault of Wong, Kaneda stated that Hans was frustrated and talking loudly to Locken. Kaneda further testified:
Q. Okay. And how did [Locken] respond to that?
A. [Locken] took it negative. He -- I saw him becoming aggressive. He actually ran toward -- he was trying to run towards Hans.
Q. Okay. . . . how far apart were they?
A. Let's see. About seven feet, eight feet.
Q. Okay. So they were sort of trying to get ...