As Corrected April 23, 2015.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-12-0000984; CR. NO. 08-1-1504.
Craig W. Jerome and Susan L. Arnett for petitioner.
Sonja P. McCullen for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
[135 Hawai'i 222] OPINION
Michael D. Wilson, Judge
Three principal issues are presented in this appeal from Petitioner Toi Nofoa's convictions for kidnapping and terroristic threatening in the second degree: 1) whether the circuit court erred in instructing the prosecutor to inform the jury during closing arguments that the complaining witness was unavailable because she was dead--a fact not in evidence, 2) whether the admission of the complaining witness's preliminary hearing testimony at trial violated Nofoa's right to confrontation, and 3) whether the circuit court erred in admitting the 911 call at trial. We conclude that the circuit court committed error in regards to the first two issues. Because the circuit court's errors were not harmless beyond a reasonable doubt, we vacate the judgment of the Intermediate Court of Appeals (ICA) and remand to the circuit court for a new trial.
A. Pretrial Proceedings
In September 2008, Nofoa was charged by complaint in the District Court of the First Circuit (district court) with terroristic threatening in the first degree in violation of Hawai'i Revised Statutes (HRS) § 707-716(1)(e) and kidnapping in violation of HRS § 707-720(1)(e). The complaining witness (CW) was Nofoa's former girlfriend.
The district court issued a " Judicial Determination of Probable Cause for the Extended Restraint of Liberty of Warrantless Arrestee" (JDPC) stating that there was probable cause to arrest Nofoa for the offense of kidnapping. An affidavit along with an addendum from the Honolulu Police Department (HPD) supported the JDPC. The addendum to the affidavit contained hearsay statements relaying what CW told an HPD officer and detective regarding the alleged kidnapping and terroristic threatening incidents.
In March 2009, six months after Nofoa was charged with kidnapping and terroristic threatening in the first degree, Nofoa was arrested and charged with CW's murder. A trial followed and Nofoa was acquitted of the murder and related charges.
Following the murder acquittal, the State filed notices of intent to introduce at Nofoa's terroristic threatening and kidnapping trial 1) a transcript of CW's preliminary hearing testimony in the instant case, and 2) a recording of CW's 911 call. Nofoa opposed the admission of this evidence, arguing that it contained inadmissible hearsay statements and that use of the evidence during trial would result in confrontation clause violations. Following a hearing, the Circuit Court
[135 Hawai'i 223] of the First Circuit (circuit court) ruled in the State's favor and allowed the admission of both the preliminary hearing testimony and the 911 call.
The contents of the preliminary hearing testimony and the 911 call, along with the circuit court's disposition of the related pretrial motions are discussed further below.
1. Preliminary Hearing
On September 19, 2008, about a week following the incident in question, CW testified at a preliminary hearing before the district court regarding the events of the evening leading up to Nofoa's arrest.
CW testified that she and Nofoa were in a relationship for two and a half years. On September 11, 2008, about a month after Nofoa and CW's relationship ended, CW was working at the Ko Olina resort. While CW was at work, Nofoa called her and asked if she " was seeing another guy." CW responded that it " was none of his business." At approximately 7:00 p.m., CW finished work and proceeded to her car in the hotel parking lot. After entering her car, she saw Nofoa approaching. Nofoa asked to speak with CW and she complied. CW agreed to walk Nofoa to his car and during the walk, Nofoa became verbally aggressive and pulled her by the hand. When she attempted to turn around and walk away, he grabbed her from the back and started pulling her by the neck with his forearm. He then reached into a backpack that he had been carrying, grabbed a gun, and shoved it into her neck. He held the gun to her neck, told her he was going to shoot her, and ordered her to get into his car.
Nofoa then drove toward the North Shore. While he was driving, Nofoa asked CW why she wouldn't " give him a chance" and get back with him and while doing so, cried and hit himself, saying that CW had made him this way. Eventually, Nofoa stopped at a gas station in Hale'iwa to buy alcohol. Nofoa told CW to stay in the car and walked toward the gas station sundry shop. CW " jumped out the door" of the car and walked toward the store. She saw a male working at the gas station and whispered to him to call the police. Nofoa noticed CW exit the car and told her to get back in the car or he would shoot the people in the store. When CW refused, Nofoa picked her up and carried her back into the car. As Nofoa was shoving CW into the car, she began yelling and screaming. CW testified that because she was resisting, Nofoa tried slamming the door while her hands and feet were sticking out of the car. The male she had whispered to, later identified as James Garcia, approached Nofoa's car and yelled at him to leave CW alone. Nofoa then jumped on CW's lap and tried to close the door while he sat on her.
A female at the gas station, later identified as Ruby McNeil, also yelled at Nofoa, telling him to leave CW alone and informing him that she had called the police. Nofoa then released CW, ordered her out of the car, and drove away from the gas station. Shortly after, Nofoa returned to the gas station and said to CW, " this is not my ending, this is not how it's supposed to end." He then left the gas station. The police arrived approximately ten minutes later.
Defense counsel's cross-examination of CW at the preliminary hearing spanned twenty-one pages of the transcript. Defense counsel asked CW the reason for CW and Nofoa's break up and CW responded that it was because she suspected he was seeing another woman. Defense counsel then questioned CW further about the incident. Regarding the gun, CW stated: " I don't know if . . . it was a toy gun, a plastic gun, a play gun. I knew it was a gun." CW also stated that Nofoa did not hit her during the altercation. Defense counsel asked if Nofoa told her their final destination when they got into his car, to which she answered: " He just said we were going to die." Neither the court nor the prosecutor interrupted the cross-examination of CW during the preliminary hearing.
[135 Hawai'i 224] Prior to trial, the State filed a notice of intent to use CW's preliminary hearing testimony based on her unavailability. Nofoa opposed the motion and filed a motion in limine to exclude the testimony, claiming that the hearing offered insufficient opportunity for cross-examination. At the hearing on the motions, Nofoa's prior defense counsel, who represented him at the preliminary hearing, testified that the only materials available to him to prepare for the hearing were the complaint and the JDPC. Defense counsel had not received and was not aware of 1) a three-page written statement by CW (known as an HPD-252), 2) a thirty-two-page recorded interview of CW, and 3) a five-page police report that included an oral statement by CW. It also appears that defense counsel did not have access to the recording of the 911 call at this time. Nofoa argued that he did not have a meaningful opportunity for cross-examination at the preliminary hearing for two reasons: 1) because preliminary hearings in Hawai'i are confined to the issue of probable cause, and 2) because he was not given CW's statements to police prior to the preliminary hearing.
The court allowed the admission of the preliminary hearing testimony, and rejected Nofoa's argument that he was not afforded a full and thorough cross-examination. In reaching its decision, the court noted that Nofoa's defense counsel did not specifically request additional discovery and that Nofoa failed to demonstrate how the additional documents would have affected his cross-examination.
2. 911 Call
The State also sought a pretrial ruling that the 911 call was admissible at trial. The 911 call reflects that McNeil--one of the gas station employees--called the police right after Nofoa initially left the gas station, stating, " [w]e need a police here for this domestic dispute, please." McNeil told the 911 operator that a girl had been kidnapped. CW then took the phone and stated: " That's my ex and he just kidnapped me all the way from work and brought me all the way up here." She then noted: " I jumped out the car over here. And then I tried to get away, but he was slamming the door on me. And these guys over here called the cops." The 911 dispatcher asked what kind of car Nofoa had been driving, the license plate number, and in what direction the car was heading. The dispatcher concluded the call by stating that someone would be sent to CW's location. CW did not mention that Nofoa had a gun during the 911 call.
At the hearing regarding the 911 call, both Garcia and McNeil testified about what they witnessed at the Hale'iwa gas station. Garcia testified that he saw CW outside of the gas station through the store window and that he saw Nofoa grab CW from behind and lift her up while she shouted " 'help me, help me.'" Garcia approached Nofoa's car and witnessed Nofoa pulling CW onto his lap while she screamed " '[y]ou're smashing my hand.'" Garcia grabbed the passenger door and said to Nofoa: " 'Braddah, braddah, let her go, let her go.'" Nofoa then released CW, and Garcia took CW to the store instructing McNeil to call 911. Garcia described CW as " hysterical," " scared," and " crying." Garcia testified that Nofoa returned to the store and tried to calmly convince CW to leave with him. At this point, CW was " pissed off" and refused to leave with Nofoa. Before Nofoa left, he told CW: " 'Sole, I'm not done with you yet.'" McNeil's testimony corroborated Garcia's testimony.
McNeil described CW's emotional state as " hysterical" and " in pain" while she was making the 911 call. McNeil testified that after the 911 call but before the police arrived at the store, Nofoa said in a " very threatening" manner, something like, " 'Sole, I'm gonna come back for you.'"
After arguments from the parties, the court granted the State's request to admit the 911 call, stating that it was admissible under the excited utterance hearsay exception and was nontestimonial in nature.
[135 Hawai'i 225] B. Trial
During jury selection, the court noted that it did not want references made to the prior case in which Nofoa was acquitted of CW's murder. Based on the concern that CW's identity might remind the jury of the murder case, defense counsel requested that the court question the jury panel to determine if they were familiar with the facts surrounding the prior case. Specifically, defense counsel sought to determine whether the jury panel may have heard about ...