TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001217; CASE
M. Aoki and William H. Jameson, Jr. for petitioner.
R. Vincent for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
closing argument in the defendant's bench trial, the
prosecutor read a portion of the complainant's prior
statement to the police although its contents had not been
admitted into evidence. We conclude that the reading of the
statement violated the defendant's substantial rights. We
also clarify that evidence proffered in a terroristic
threatening prosecution of the presence or absence of the
complainant's fear, that is incidental to the
defendant's alleged words or conduct, is relevant to the
"true threat" and state of mind requirements of
District Court Proceedings
McGhee was charged by complaint with threatening "by
word or conduct to cause bodily injury to [Edithe Kearney],
in reckless disregard of the risk of terrorizing [her]
thereby committing the offense of Terroristic Threatening in
the Second Degree, in violation of [Hawaii Revised Statutes
(HRS) §] 707-717(1)." McGhee waived his right to a jury
trial in the District Court of the First Circuit (district
court) and entered a plea of not guilty. At the bench
trial,  Kearney and McGhee were the only
testified that she is the owner of a club called Alley Cat
located on O'ahu. Kearney indicated that Alley Cat is
very small in size--the number of patrons can be from ten to
twenty--and the club does not get loud. On June 12, 2014,
around 2:00 a.m., McGhee came to Alley Cat. Kearney testified
that McGhee was upset with an Alley Cat employee who was at
the front door. Kearney stated that she was inside by the
bar, about three yards from the front door, when she heard
McGhee--who she described as very loud--screaming, swearing,
cursing, and threatening everyone. As a result of
McGhee's yelling and threatening, Kearney went outside
the club. Kearney testified that McGhee was very upset and
threatened her, saying that he "can kill me, can beat me
up, that sort of thing." Kearney stated that she felt
threatened by McGhee's remarks, and she called the police
because he did not calm down. The police arrived more than
ten minutes later, but by then, McGhee had already left the
area with the help of Gloria Pancho, McGhee's girlfriend
and Kearney's former employee.
cross-examination, Kearney testified that she did not call
the police upon hearing McGhee from inside the club because
she thought she or Pancho could calm McGhee down. Despite
McGhee's yelling, Kearney felt it was okay to go outside
because "I mean, I'm almost 70. I'm not afraid
to be -- if he wants to kill me, kill me."
the conclusion of Kearney's testimony, the State rested.
McGhee moved for judgment of acquittal, which motion the
district court denied, and the defense presented its
who was then 43 years old, testified that he went to Alley
Cat to pick up his key from his girlfriend. McGhee related
that while waiting outside--at least 30 or 35 feet from the
front door because he had already had problems with Alley
Cat--he was smoking a cigarette and not yelling. McGhee
testified that Kearney "was kind of hidden in the
bushes" and that he did not see her until the police
arrived. Later in his testimony, McGhee clarified that
Kearney was not in the bushes; it was just that he did not
see her because it was dark. McGhee explained that had he
seen Kearney, he would have left because she always called
the police on him. McGhee stated that Kearney called the
police on that day because she did not like him to be around
the close of McGhee's case, the prosecutor presented his
closing argument. The prosecutor argued that Kearney's
testimony was credible. The prosecutor pointed out that
Kearney was 70 years old and that, even given Kearney's
physical stature, she was not concerned for herself but
rather for her employees. The prosecutor contended that
McGhee was "hysterical" on the day in question and
essentially made up a story. The prosecutor challenged
McGhee's credibility, arguing that McGhee initially
testified that Kearney was hiding in the bushes, but he later
testified that Kearney was not hiding there. The prosecutor
thus concluded that McGhee's testimony was not credible.
counsel in his closing argument maintained that McGhee went
to Alley Cat, where he waited outside--from a distance--for
his girlfriend. Counsel contended that whether Kearney was
near or behind the bushes was not relevant to McGhee's
credibility. The defense argued that Kearney was not credible
because she testified that McGhee was yelling and that
"she was afraid of what would happen to her, her workers
and herself" and yet felt she could go outside and calm
the situation down. Defense counsel argued that under such
circumstances "there's no risk of threatening."
Counsel also pointed out that Kearney herself testified that
"she was not afraid at that time."
prosecutor began his rebuttal closing argument by stating
that "in candor to the Court, given what the defense
argument has been ... I do need to point out although this
wasn't raised as evidence in this case, out of fairness
to the defendant I believe I do need to point it out."
The prosecutor explained that the defense started to impeach
Kearney with her prior statement that she was afraid.
prosecutor then elaborated on his understanding of the
defense's impeachment efforts: "I believe what they
were referring to was a portion of the written 252 that the
witness was not confronted with." The prosecutor
acknowledged that the prior statement was not part of the
evidence but stated that he did not have a problem with the
court considering it.
[PROSECUTOR:] I'm not going to raise that argument that
she -- that is not part of the evidence in this case, I
don't have a problem with the Court considering that that
was included in the 252. I just put that out there in
fairness to the defense. Nonetheless, the State would still
argue that the witness be found credible.
THE COURT: So your representation in the 252 --
[PROSECUTOR]: The 2 -- in the 252 there was a statement that
I was afraid. However, the State is urging the Court to find
that her testimony in court is credible. I feel it just as
important to point out because I know that the defense
started asking about that but didn't finish laying the
foundation for it. So just out of fairness, I just think
it's appropriate to note that for the Court.
THE COURT: And the portion of the 252 is that [Kearney] was
[PROSECUTOR]: Correct, Your Honor, if I could just read that
portion for the Court?
after the prosecutor disclosed the existence of the prior
statement that was "not part of the evidence, " the
court asked the prosecutor if the portion of the statement he
was referring to indicated that Kearney was afraid. Upon
affirming that the "portion of the 252" did state
this, the prosecutor asked if he could read that portion. The
court then addressed defense counsel.
THE COURT: May he read it?
[DEFENSE COUNSEL]: Yes, Your Honor.
[PROSECUTOR]: It reads: At that time I was afraid and call
the police. The tense ...