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State v. Baker

Intermediate Court of Appeals of Hawaii

September 29, 2017

STATE OF HAWAI'I, Plaintiff-Appellee,
MUSTAFA BAKER, Defendant-Appellant


          Dwight C.H. Lum, for Defendant-Appellant.

          Sonja P. McCullen, Deputy Prosecuting Attorney, for Plaintiff-Appellee.



          CHAN, J.

         Defendant-Appellant Mustafa Baker (Baker) appeals from the "Judgment of Conviction and Sentence" entered on January 29, 2016 in the Circuit Court of the First Circuit (circuit court). [1] The State of Hawai'i (State) charged Baker with two counts of Sexual Assault in the First Degree (Counts 1 and 2) and one count of Sexual Assault in the Third Degree (Count 3). Right before jury selection, the circuit court dismissed Count 3 without prejudice because the complaint failed to allege the essential element that the defendant and complaining witness (CW) were not married to each other.[2] After a jury trial, Baker was found guilty of Counts 1 and 2:

Count 1: Sexual Assault in the First Degree (penis into genital opening), in violation of HRS § 707-730(1) (a) .[3]
Count 2: Sexual Assault in the First Degree (penis into anal opening), in violation of HRS § 707-730(1)(a).

         The circuit court sentenced Baker to consecutive terms of " imprisonment of twenty years on Count 1 and twenty years on Count 2.

         On appeal, Baker contends (1) the circuit court erred when it found that Baker's January 8, 2013 statement to the Honolulu Police Department (HPD) was voluntarily, knowingly, and intelligently made; (2) the circuit court erred when it redacted "I've been raped as a kid" from Baker's statement to HPD; (3) the circuit court erred when it sentenced Baker to consecutive terms of imprisonment; and (4) the imposition of consecutive terms of imprisonment by a judge instead of by a jury violated the Sixth Amendment and Due Process clause.

         I. BACKGROUND

         On December 31, 2012, CW, who was a seventeen-year-old minor at the time, and a friend went to Kailua District Park around 2:30 p.m. There, they met up with Baker, drank Jack Daniels and Bacardi, smoked marijuana, and may have also used acid and methamphetamine.

         At around 5:30 p.m., a marked police car drove towards the group. In response, CW ran into the boys' bathroom to hide. Sometime later, Baker's minor relative GK arrived at the park.

         When CW started walking out of the bathroom, she saw Baker and GK coming towards her, one of them holding a bottle. Baker and GK then proceeded to punch and hit CW. CW lost consciousness after GK hit her in the head with the bottle.

         Before CW lost consciousness, she was wearing all of her clothes. When CW regained consciousness, she was completely naked and Baker had his penis inside of her vagina. At that moment, CW testified that she tried to fight back, but the more she fought, the more Baker and GK would punch and kick her. GK then said "he want[ed] to try, " and-put his penis in CW's vagina to have sex with her. After GK ejaculated, Baker turned CW around and "put his penis in [her] butt." CW testified, "I was telling him to stop, because it hurts. And he didn't really care what I said. And he just kept going." CW also testified that sometime after GK ejaculated, Baker put his penis back into her vagina and "ke[pt] going until he ejaculate[d]." CW testified that while Baker was having sex with CW, Baker "was dragging [her] all over, " and CW "was bleeding from head to toe."

         After the assault, CW heard either Baker or GK say to the other "[c]ome on. We got to go. The bus is here." After Baker and GK left, CW "crawled to the light" and asked a bystander to call 911.

         Dr. Gregory Suares, the emergency room physician who treated CW, testified that CW had a broken jaw in two places, multiple lacerations to her head, scalp, and face, including significant lacerations requiring suturing to the top of both eyes and her lower lip, and abrasions and contusions on her body, including her hip and knees. Dr. Wayne Lee, an examining physician for the Sex Abuse Treatment Center (SATC), testified that he detected redness and swelling in the area of CW's external genitalia. He also detected tears or lacerations to CW's genitalia, which were consistent with trauma, and multiple tears or lacerations to CW's anus.

         On January 8, 2013 at 6:45 p.m., HPD Detective Brian Tokita (Detective Tokita) interviewed Baker (Interview). During the Interview, Baker informed Detective Tokita that when he was about twelve years old, he took Ritalin for ADHD (Attention Deficit Hyperactivity Disorder) for about a year until his father took him off of it because he did not think Baker needed it.

         Baker also told Detective Tokita that he had smoked "weed" the day before the Interview, in the afternoon. Detective Tokita asked Baker if he was well enough to give a statement, and Baker replied that he was. Detective Tokita then proceeded to read Baker his constitutional rights from HPD Form 81, entitled "Warning Persons Being Interrogated of Their Constitutional Rights."

         Baker began telling Detective Tokita his account of what happened on the night of the assault. In response, Detective Tokita told Baker that he knew that was not true. Baker continued telling his account, and again, Detective Tokita told Baker that he knew Baker's story was untrue:

Q: Okay, Mustafa, I know that's . . that's not how it went.
A: I no blame nobody, I not saying nothing. That's what I know. I'm not defending myself, nothing, I just giving my story.
Q: Okay, you know . . .
A: This is a sad case . . .
Q: ... (inaudible)
A: ... I have . . I have sisters. I have nieces. I've been raped as a kid. I no wish this on nobody. I no pull that shit.

         Detective Tokita told Baker that he knew Baker and GK beat CW and sexually assaulted her. Detective Tokita further told Baker that he was "big on owning up." Throughout the Interview, Detective Tokita and Baker discussed whether Baker had beat CW. Baker never admitted to beating CW, other than just throwing her to the ground.

         Detective Tokita also claimed that he had DNA evidence that Baker had sex with CW, and attempted to get Baker to admit that he had both vaginal and anal sex with CW. At first. Baker only admitted to putting his penis in CW's vagina, but not in her anus. However, eventually, Baker said, "I ain't going to argue with you no more, " and admitted that he put his penis in CW's vagina and anus.

         On January 16, 2013, Baker was charged with two counts of Sexual Assault in the First Degree (Counts 1 and 2) and one count of Sexual Assault in the Third Degree (Count 3).

         On March 25, 2015, the State filed "Prosecution's Motion to Determine Voluntariness of Defendant's Statement to Law Enforcement" (Voluntariness Motion) to determine the voluntariness of Baker's statement made to Detective Tokita on January 8, 2013. On March 31, 2015, a hearing was held on the Voluntariness Motion., Detective Tokita testified at the hearing and admitted that at the time of the Interview, he did not have any objective DNA evidence despite having told Baker that he had "irrefutable evidence of his participation" in the assault.

         Baker's counsel also asked Detective Tokita whether Baker stated that he had smoked marijuana in the twenty-four hours prior to the Interview. Detective Tokita answered "yes, " but testified that he clarified with Baker during the Interview that actually, "the 24 hours had passed and it was now evening the next day . . . ." The court then asked Detective Tokita about his opinion of Baker's sobriety during the Interview:

THE COURT: Can I ask in your observation of him, observation both of his demeanor and in terms of what he said, was there any indication to you that he was feeling the effects of the marijuana?
[Detective Tokita]: No. And I even verbally asked him if he was well enough to give a statement, and he said yes.

         At the end of the hearing, Baker's counsel argued that the audio recording of the Interview revealed "a lot of cajoling, and . . . some pretty clear denials, and ... a lot of intimidation by [Detective Tokita] . . . ." In response, the State argued that "Mr. Baker, despite any sort of marijuana use, was very lucid and was certainly able, at least in the very beginning, to pedal [sic] the account that he wanted to until Detective Tokita pushed him further."

         The circuit court took the Voluntariness Motion under advisement so it could listen to the audio recording of the Interview, and issued its ruling by minute order on April 1, 2015. In the minute order, the circuit court made the following findings and conclusions:

The court has reviewed the recording of defendant's January 8, 2013, statement to police and duly considered testimony, other exhibits, and arguments of counsel, and based thereon, finds and concludes as follows:
1. Before providing any substantive statement, the defendant was administered his Miranda rights and thereafter elected to waive those rights and provide a statement to police.
2. Although the defendant only completed the 8th Grade, the DVD demonstrates that he answered police questions readily and resppnsively, unless he reasonably wanted to think about the question and his answer. He displayed no signs of any inability to understand questions or to respond appropriately to any given question.
3. Defendant initially opted to deny any participation in the salient events at issue, but then admitted that he had been a participant.
4. During the interview, Honolulu Police Detective Brian Tokita engaged in apparently deceptive assertions regarding intrinsic facts and urged defendant to tell the truth, sometimes using an insistent tone, but did not use deliberate falsehoods extrinsic to the facts of the alleged offenses that were of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt. See State v. Kelekolio, 74 Haw. 479, 511 (1993). Where the defendant wanted to deny certain allegations, he did so.
5. Considering the totality of the evidence, the court concludes that the State has proven by a preponderance of the evidence that defendant gave the bulk of his January 8, 2013, statement voluntarily, knowingly, and intelligently. Under the totality of the circumstances, devices used by the detective did not amount to mental coercion and did not cause defendant's will to be overborne.
6. However, the court will deny the motion as to page 39 through page 43 in the transcript, wherein the detective sought to get the defendant to admit that he directed [GK] to hit and assault the complaining witness, which [GK] did not want to do. Furthermore, the State will redact the pronoun "she" in questions inasmuch as that suggests that the detective is reciting material from the complaining witness' statements.

         On April 1, 2015, the circuit court dismissed Count 3 without prejudice because the complaint failed to allege the essential element that the defendant and CW were not married to each other.

         On April 7, 2015, out of the presence of the jury, the State proposed redacting the statement, "I have been raped as a kid, " made by Baker during the Interview. Baker's counsel opposed the redaction, arguing that the statement supported the contention that Baker would not be violent in sexual activities because he has been a victim of violence. The circuit court granted the State's request to exclude the statement under Rule 403 of the Hawai'i Rules of Evidence (HRE) .

         On April 10, 2015, the jury returned its verdicts finding Baker guilty as charged in Counts 1 and 2.

         On September 29, 2015, the State filed "Prosecution's Motion for Consecutive Sentencing Scheme" (Motion for Consecutive Sentencing). On January 29, 2016, the circuit court held a sentencing hearing, and granted the Motion for Consecutive Sentencing, sentencing Baker to forty years of imprisonment.

         On January 29, 2016, the "Judgment of Conviction and Sentence" was filed.

         On February 29, 2016, Baker filed his Notice of Appeal.


         A. Voluntariness of Statement

We apply a de novo standard of appellate review to the ultimate issue of the voluntariness of a confession. We thus examine the entire record and make an independent determination of the ultimate issue of voluntariness based upon that review and the totality of the circumstances surrounding the defendant's statement.

State v. Gella, 92 Hawai'i 135, 142, 988 P.2d 200, 207 (1999) (internal quotation marks, citations, and brackets omitted) (quoting In re John Doe, 90 Hawai'i 246, 251, 978 P.2d 684, 689 (1999)) . "However, it is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trial judge." Gella, 92 Hawai'i at 142, 988 P.2d at 207 (internal quotation marks and citation omitted).

Our review of whether a defendant's statement was in fact coerced requires determination of whether the findings of the trial court are clearly erroneous. A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.

Id. (internal quotation marks, citations, and brackets omitted) (quoting State v. Buch, 83 Hawai'i 308, 321, 926 P.2d 599, 612 (1996)).

         B. Admissibility of Evidence under HRE Rule 403

         "Evidentiary decisions based on HRE Rule 403, which require a 'judgment call' on the part of the trial court, are reviewed for an abuse of discretion." Costales v. Rosete, 133 Hawai'i 453, 466, 331 P.3d 431, 444 (2014) (quoting Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 350-51, 944 P.2d 1279, 1293-94 (1997)). "A trial court abuses its discretion when it 'clearly exceed[s] the bounds of reason or has disregarded rules or principles of law or practice to the substantial detriment of a party litigant.'" State v. Garcia, 135 Hawai'i 361, 368, 351 P.3d 588, 595 (2015) (quoting State v. Merino, 81 Hawai'i 198, 211, 915 P.2d 672, 685 (1996) (citations omitted)).

         C. Sentencing

A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

State v. Mundon, 121 Hawai'i 339, 349, 219 P.3d 1126, 1136 (2009) (quoting State v. Kahapea, 111 Hawai'i 267, 278, 141 P.3d 440, 451 (2006)).

         "The weight to be given the factors set forth in HRS § 706-606 in imposing sentence is a matter generally left to the discretion of the sentencing court, taking into consideration the circumstances of each case." State v. Akana, 10 Haw.App. 381, 386, 876 P.2d 1331, 1334 (1994).

         D. Constitutional Questions

         "'We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard.1" State v. Vaimili, 135 Hawai'i 492, 499, 353 P.3d 1034, 1041 (2015) (quoting State v. Pratt, 127 Hawai'i 206, 277 P.3d 300 (2012) (citations and internal quotation marks omitted)).

         III. ...

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