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State v. McGhee

Supreme Court of Hawaii

June 21, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
JAMAL MCGHEE, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001217; CASE NO. 1DCW-14-0002729)

          Lianne M. Aoki and William H. Jameson, Jr. for petitioner.

          Brian R. Vincent for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         During 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 this offense.

         I. BACKGROUND

         A. District Court Proceedings

         Jamal 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)."[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.[2] At the bench trial, [3] Kearney and McGhee were the only witnesses.

         Kearney 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.

         On 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."

         Upon 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 evidence.

         McGhee, 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 Alley Cat.

         Following 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.

         Defense 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."

         The 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.

         The 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."[4] 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 afraid?
[PROSECUTOR]: Correct, Your Honor, if I could just read that portion for the Court?

         Thus, 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 ...

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