FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO.
C.H. Lum, for Defendant-Appellant.
P. McCullen, Deputy Prosecuting Attorney, for
NAKAMURA, C.J., FUJISE AND CHAN, JJ.
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).
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. 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)
Count 2: Sexual Assault in the First Degree (penis into anal
opening), in violation of HRS § 707-730(1)(a).
circuit court sentenced Baker to consecutive terms of "
imprisonment of twenty years on Count 1 and twenty years 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.
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
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.
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.
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."
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.
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
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
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."
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
A: I no blame nobody, I not saying nothing. That's what I
know. I'm not defending myself, nothing, I just giving my
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
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.
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.
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).
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.
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
[Detective Tokita]: No. And I even verbally asked him if he
was well enough to give a statement, and he said yes.
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."
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
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
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.
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) .
April 10, 2015, the jury returned its verdicts finding Baker
guilty as charged in Counts 1 and 2.
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
January 29, 2016, the "Judgment of Conviction and
Sentence" was filed.
February 29, 2016, Baker filed his Notice of Appeal.
STANDARD OF REVIEW
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
Id. (internal quotation marks, citations, and
brackets omitted) (quoting State v. Buch, 83
Hawai'i 308, 321, 926 P.2d 599, 612 (1996)).
Admissibility of Evidence under HRE Rule 403
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
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)).
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
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)).