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State v. Kazanas

Supreme Court of Hawaii

June 21, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
GREGORY A. KAZANAS, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0001011; CR. NO. 11-1-1592)

          McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          McKENNA, J.

         I. Introduction

         This month marks the fiftieth anniversary of the United States Supreme Court's landmark decision, Miranda v. Arizona, 384 U.S. 436 (1966). In that case, the Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444. The Court envisioned the following procedural safeguard: "Prior to any questioning, the person must be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed." Id.

         The Miranda advisement provides "concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U.S. at 442. At the time the Court announced the Miranda rule, it had become increasingly alarmed by the psychologically coercive nature of police interrogations. 384 U.S. at 448 ("[C]oercion can be mental as well as physical . . . [T]he blood of the accused is not the only hallmark of an unconstitutional inquisition.") (citing Blackburn v. Alabama, 361 U.S. 199, 206 (960)). Although none of the petitioners in the Miranda case was the victim of "overt physical coercion or patent psychological ploys, " the Court was nonetheless concerned that the police officers who questioned the petitioners did not "undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice." 384 U.S. at 457.

         In this appeal, we decide whether an arrestee not advised of his Miranda rights was "interrogated" in the constitutional sense. Briefly stated, Petitioner/Defendant-Appellant Gregory Kazanas ("Kazanas") was charged with one count of Criminal Property Damage in the First Degree and one count of Unauthorized Entry into Motor Vehicle in the First Degree ("UEMV"). The charges stemmed from events alleged to have taken place on Halloween 2011. Kazanas was accused of breaking the back windshield of a car then reaching through the driver's side open window to punch the driver in the face. Kazanas was identified by the complaining witness and arrested. The Honolulu Police Department ("HPD") police officer assigned to accompany Kazanas to Queen's Medical Center knew the reason for the arrest. In an apparent effort to make small talk and calm Kazanas down, she asked him how his Halloween went. During the conversation, Kazanas stated, "If people didn't upset me, I wouldn't have to punch them." The statement was admitted at trial, and Kazanas was ultimately convicted of UEMV.

         We hold that, although the officer testified that she did not intend her small talk to provoke an incriminating response, she "should have known that her words were reasonably likely to elicit an incriminating response from the person in custody." State v. Joseph, 109 Hawai'i 482, 495, 128 P.3d 795, 808 (2006) ("Interrogation involves any practice reasonably likely to invoke an incriminating response without regard to objective evidence of the intent of the police."). The questioning in this case was reasonably likely to elicit an incriminating response as the events of the night culminated in Kazanas's arrest for UEMV. The officer knew how Kazanas's Halloween went. Thus, her question was reasonably likely to elicit from Kazanas details about the alleged crime. In other words, the police officer subjected Kazanas, a person in custody pursuant to an arrest, to interrogation; accordingly, Kazanas was entitled to be advised of his Miranda rights before the small talk conversation began. As Kazanas's right against self-incrimination was violated, his statement should have been suppressed at trial.

         On certiorari, Kazanas also argues that the circuit court abused its discretion in admitting prior bad act evidence that Kazanas had run, jumped, and punched two people in 2007 and punched another person in the face, arms, and legs, then struck her in the face with a cane in 2006, incidents that occurred before the Halloween 2011 incident. On certiorari, Kazanas no longer disputes that he opened the door to the admission of the evidence when he testified he was physically incapable of running, jumping, and punching ever since he sustained serious injuries in a nine-story fall from a hotel balcony in 2005. Rather, on certiorari, Kazanas challenges the circuit court's weighing of the evidence's probative value versus the danger of prejudice under Hawai'i Rules of Evidence ("HRE") Rule 403 (1980). We hold that the circuit court abused its discretion in admitting evidence of the 2006 prior bad acts, as only the 2007 incident was necessary to counter Kazanas's testimony, and the probative value of the 2006 acts was substantially outweighed by the danger of unfair prejudice.

         In sum, the ICA erred in concluding that Kazanas's statement was not procured in violation of his Miranda rights and therefore admissible. The ICA also erred in concluding that the circuit court properly permitted the State to introduce evidence of Kazanas's 2006 prior bad acts. Therefore, the ICA's Judgment on Appeal and the Circuit Court of the First Circuit's[1] ("circuit court") Judgment of Conviction of Probation Sentence are vacated, and this case is remanded for a new trial.

         II. Background

         A. Indictment and Pre-Trial Motions

         On November 3, 2011, Kazanas was charged by Indictment of one count of Criminal Property Damage in the First Degree, in violation of Hawai'i Revised Statutes ("HRS") § 708-820(1) (a) (2014)[2], and one count of Unauthorized Entry into Motor Vehicle in the First Degree, in violation of HRS § 708-836.5(1) (2014).[3]Kazanas filed his Motion in Limine #1 seeking exclusion of the following evidence:

(a) Testimonial or documentary evidence relating to the defendant's prior criminal record, including any reference to defendant's conviction and being placed on probation in CR. NO. 06-1-0995; and
.....
(c) Statements made by the defendant to Honolulu Police Officer CHRISTY-LYNN AVILLA on November 1, 1011 [sic] at approximately 0050 hours at the Queen's Medical Center. . .

         Before trial, the State filed its Notice of Intent to Use Evidence of Prior Acts. Specifically, the State sought to admit evidence of (1) a 2007 assault in the third degree conviction, stemming from an incident in which Kazanas and another person attacked two men from behind, then ran from police and jumped a fence; and (2) a 2006 abuse of family or household member conviction, stemming from an incident in which Kazanas ambushed his ex-girlfriend in her apartment; punched her on her face, arms, and legs; and struck her in the face with a cane.

         Before trial, the State also filed a Motion to Determine the Voluntariness of Defendant's Statement to the Police. The motion sought orders from the court

1. Finding and concluding that the statements made by Defendant Gregory A. Kazanas ... to Officer Christy-Lynn Avilla ... on November 1, 2011, were voluntarily made.
2. Prohibiting the defense from commenting upon or making reference to the substance of Defendant's statement to the police, unless the prosecution first introduces evidence of the same.

         The specific statements Kazanas made to Officer Avilla were, "I wouldn't have to punch people if they didn't upset me, " and "If you didn't catch me now for this, you would've caught me later for something else."

         Immediately before trial, the circuit court held a hearing on the State's motion. Officer Avilla testified as follows: She transported Kazanas to Queen's Medical Center in the early morning hours of November 1, 2011. Kazanas was transported to the hospital because he had injuries on his right hand. Officer Avilla told Kazanas "multiple times" that he was under arrest for UEMV, first when she handcuffed him, next during transport, and lastly at the hospital. Although she did not inform him that he had the right to remain silent, she did tell him, upon his arrest, "that he was not allowed to talk about the case or say anything about what he had been arrested for."

         She further testified that at the hospital, Kazanas began "making comments that were rude and other patients could hear it. . . ." Avilla moved Kazanas to an HPD room within the hospital. Avilla and Kazanas sat about six feet away from each other, with Kazanas in handcuffs. Although Officer Avilla did not detect alcohol on Kazanas's breath, his "demeanor made it seem that he was under the influence of something. ..."

         In order to "help him calm down and get his mind off of saying . . . rude things, " she began asking Kazanas "questions about if he enjoyed Halloween that night, what kind of costumes did he see, but nothing along the lines in reference to the investigation. ..." Officer Avilla testified she did not know what his responses would be.

         According to Officer Avilla, it was Kazanas who decided to "spontaneously utter[], 'If people didn't upset me, I wouldn't have to punch them.'" She further testified that Kazanas's statement was not in response to any questions she asked him. Although she was not sure how much time had passed between her small talk questions and his statements, Officer Avilla testified that his statements were made "just out of the blue, that was out of context of what we were talking about, " referring to the conversation about Halloween and costumes. After Kazanas made his statement, Officer Avilla told him "his case was still under investigation and to stop what he was saying, because it could be used against him in a court of law." Kazanas then apologized; about a minute or so later, he then stated, "If you didn't catch me now, you would have caught me for something else later."

         The circuit court granted in part and denied in part the State's Motion to Determine Voluntariness of Defendant's Statement to the Police. The court granted the motion in part, finding that "Defendant's statement to Officer Avilla, yI wouldn't have to punch people if they didn't upset me' was a voluntary statement and is admissible." The circuit court excluded, however, Kazanas's second statement to Officer Avilla ("If you didn't catch me now for this, you would have caught me later for something else"); the circuit court reasoned that the statement, while voluntary, was unfairly prejudicial to Kazanas.

         The circuit court also took up the State's notice of intent to use Kazanas's prior bad acts, namely the 2007 assault and a 2006 abuse of family or household member arrests that led to convictions. The circuit court precluded use of Kazanas's prior bad acts but stated that it would revisit its ruling if the defense opened the door to that evidence.

         B. Trial Testimony

         1. The State's Case in Chief

         The State called former HPD Police Officer James Easley. He testified that he saw Kazanas dressed as a knight on Halloween in Waikiki. He recognized Kazanas from his police officer days. Years before (in 2005), Easley had responded to the Aloha Surf Hotel after Kazanas had fallen from a ninth floor balcony. When Easley arrived, Kazanas was still coherent. Easley testified he would never forget Kazanas's name or face because the incident had an impact upon him.

         Easley testified that he saw Kazanas, who was holding something in his hand, "str[ike] the back window of a white sedan that was stopped there in traffic, shattering the glass." Kazanas then "ran around to the front of the car and he jumped on the hood of the car, kind of rolling on over, and then he approached the driver's side window of the vehicle and began punching the driver through the . . . open window." After the incident ended, Easley contacted his police officer friends on duty and identified Kazanas as the suspect.

         The State then called complaining witness Geoffrey Ross. He testified that it was about midnight on Halloween when he was driving on Kuhio Avenue with friends, to see "the craziness, the festivities, what people were doing." Ross testified that a group of about a dozen or two dozen people ran across the street in front of the car. They were running to observe a fist fight. "Out of the blue, " Ross testified, "one more person [came] charging across the street . . . and ran headlong into the right front corner of the car. ..." Ross wondered if the person was injured, when the person "[a]11 of a sudden . . . bounce[d] up and continue[d] right through ... to where the fight was." Ross sensed that people who had just witnessed what happened thought he was "a person who had just hit a pedestrian" and "converged on the car to accuse [him]" and stop him from getting away.

         As he slowly moved his car over to the curb, a crowd of people began yelling, pounding on the windows of the car, and rocking the car. Someone broke the back windshield, but Ross could not see who it was; Ross had a passenger in the back seat at the time. Someone with heavy shoes or boots was also on the hood of the car, stomping against the windshield in an attempt to crack it. That person "hopped off to the left side of the car" and came up to Ross's open window. He "encircle[d Ross's] neck and h[e]ld onto it, and then -- with the one arm, and then with the other . . . punch[ed] the side of [Ross's] face with a closed fist." Ross was struck "two, three times" to the "[l]eft side cheek and ear area, jaw."

         After the attack, Ross drove slowly up Kuhio Avenue towards some police cars and reported the incident. Not long after the incident, Ross was taken to do a drive-by identification of the suspect. He was "[a]s certain as [he] could be" that he identified Kazanas as his assailant during the drive-by identification. On cross-examination, Ross testified that he "didn't believe that" the person who punched him was "the person who broke the glass because [he] couldn't see how a person could break the glass and in that short of a time . . . then appear on the front of the car."

         The State next called Officer Avilla, who had been with HPD for five years at the time of trial. She testified that on Halloween night in 2011, she was on patrol when she was instructed to stand by Kazanas on Kuhio Avenue to await a field show-up identification. After a positive identification was made, Kazanas was placed under arrest. Officer Avilla's role was to transport Kazanas to Queen's Medical Center. She noticed Kazanas had cuts, scrapes, and redness on his right hand.

         At the hospital, Kazanas "was being rude and saying things that were verbally offensive to other people in the area, " so Officer Avilla moved him to the HPD patient room away from other patients. In order to "take his mind off of what he was saying, " she engaged Kazanas in conversation. Officer Avilla "ask[ed] him how was his Halloween, did he enjoy the costumes, things along that matter, but never about the investigation." Kazanas then stated, "If people didn't upset me, I wouldn't have to punch them." Officer Avilla testified that Kazanas made the statement even though she "was not asking him anything about the investigation." She then immediately told Kazanas "that whatever he said can be used against him in a court of law, and to stop what he was saying."

         2. The Defense's Case in Chief

         Kazanas's defense was, not only did he not commit the offenses, he was physically incapable of committing the offenses. Kazanas called his friends Simon Farrington and Hans Kolbisen, who were both with him on Halloween. Both testified that Kazanas was not the person who broke the car windshield and punched the driver.

         Kazanas also testified in his own defense. He stated that a group of friends met at his house before heading into Waikiki on Halloween night. Kazanas was briefly separated from the group. During the time he was separated, someone drop-kicked him to the ground. He explained that red marks on his knuckles were the result of his labored attempts to "[s]tand[] up after [he] had been kicked. ..."

         During this part of his testimony, Kazanas elaborated on his physical condition. According to Kazanas, his "wrist doesn't bend back . . . [due to] a double compound fracture from falling off the nine-story building, " and his right arm cannot extend beyond 90 degrees. Due to the limitations in his wrist and right arm, Kazanas was "unable to get to the upright position placing both of [his] hands on the ground, so [he had] to use [his] knuckles [to] push [himself] off up the ground. . . ." His right leg also does not bend beyond 90 degrees. He explained that the nine-story fall resulted in "four lumbar vertebrae [shattering], double compound fractures on [his] wrists, double compound fractures on both of [his] thighs and both of [his] shins, and broke[n] . . . arms and elbows and shoulders. ..." Kazanas recalled that he was in a "medically-induced coma for three weeks [and] three weeks in recovery, in traction. ..."

         He resumed his testimony about Halloween night, stating that after he got up from being drop-kicked, he "shuffled away" because he "can't run." Kazanas then returned to his group of friends and witnessed the incident involving Ross. Kazanas testified that he was not the one who smashed the car's back window. He also testified that he did not jump on the hood of the car, because he would only have been able to "crawl up onto the hood" because he "can't jump." He elaborated, "My legs restrict me to jump. I have about 37 screws and seven rods in my legs from my hips to my feet; it's like I'm wearing a pair of steel-toe boots all the time. I can barely jump an inch or two off the ground."

         Kazanas also denied reaching into the car to punch Ross; he testified, "I wouldn't have been able to reach into the car . . . I have limited range of motion on my arm, my right arm specifically." Kazanas explained that he has "calcium deposits in [his] elbow restricting any movement, " as well as calcium deposits in his knee that render him barely able to "walk up a set of steps without kicking the top rung." Kazanas characterized himself as "disabled." Kazanas stated that when the incident was over, he walked away.

         When asked why he told Officer Avilla, "I wouldn't have to punch people if they didn't upset me, " Kazanas explained that he was "under stress" and "was just speculating to the fact that [the police officers] said that I was under arrest for an assault." On cross-examination, Kazanas affirmatively answered the State's question that he "couldn't have done this attack because [he] physically can't attack a person. ..."

         As a result of Kazanas's testimony that he was not physically capable of committing the charged offenses, the State sought to revisit the issue of Kazanas's prior bad acts. The State argued that Kazanas "opened the door" to the admission of prior bad act evidence when he argued that he was physically incapable of breaking the car windshield and punching Ross because of injuries he suffered from the nine-story fall. The defense counter-argued that the prior bad acts were dissimilar to the acts for which Kazanas was on trial: first, Kazanas was the one injured in the 2007 assault; second, the 2006 abuse of family or household ...


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