TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0001011; CR.
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS J.
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.
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 (1960)). 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.
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.
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.
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.
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 ("circuit court") Judgment of
Conviction of Probation Sentence are vacated, and this case
is remanded for a new trial.
Indictment and Pre-Trial Motions
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), and one count of Unauthorized Entry
into Motor Vehicle in the First Degree, in violation of HRS
§ 708-836.5(1) (2014).
filed his Motion in Limine #1 seeking exclusion of the
(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. .
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.
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.
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
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."
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. . . ."
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.
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."
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, 'I 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.
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.
The State's Case in Chief
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
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.
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]ll 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.
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."
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
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.
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."
The Defense's Case in Chief
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
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. . . ."
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. . . ."
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."
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.
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. . . ."
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 ...