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State v. David

Supreme Court of Hawaii

December 22, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee.
PETER DAVID, Petitioner/Defendant-Appellant.


          Craig W. Jerome for petitioner.

          James M. Anderson and Loren J. Thomas for respondent.



          WILSON, J.


         Peter David (David) was charged with murder in the second degree of Santhony Albert (Albert) and assault in the second degree of Torokas Kikku (Kikku). At trial before the Circuit Court of the First Circuit (circuit court), [1] David claimed that he acted in self-defense. The jury found him guilty of the lesser included offenses of manslaughter and assault in the third degree.

         We consider only one issue on certiorari review: whether the Intermediate Court of Appeals (ICA) gravely erred in holding that the trial court did not abuse its discretion by allowing the State of Hawai'i to present testimony in rebuttal that went beyond the limited scope permitted by the trial court and introduced evidence of David's uncooperative behavior with the police.[2]

         We hold that the State's rebuttal testimony was improper because it exceeded the limited scope of testimony permitted by the court, and the introduction of the improper rebuttal testimony was not harmless error. Accordingly, we vacate the ICA's judgment on appeal and the circuit court's judgment of conviction and sentence, and remand for a new trial on both offenses.


         The undisputed evidence established that on the night of January 1, 2011, David and his cousin, Albert, were involved in a fight outside an apartment on Awanei Street in Waipahu that ended with David fatally stabbing Albert. After David stabbed Albert, Albert's aunt, Torokas Kikku (Kikku), confronted David. Kikku sustained minor injuries as a result of the confrontation. The primary disputed issues at trial were whether David or Albert was the aggressor, and whether David acted in self-defense .

         A. Trial Court Proceedings

         On January 12, 2011, the State filed a complaint in the circuit court charging David with murder in the second degree of Albert, in violation of Hawai'i Revised Statutes (HRS) §§ 707-701.5[3] and 706-656.[4] The State also charged David with assault in the second degree of Kikku, in violation of HRS § 707-711(1).[5] Dav id's jury trial began on September 26, 2011.

         1. The State's Case-in-Chief

         The State called eight witnesses in its case-in-chief, including Kikku. Kikku described David as the aggressor in the confrontation between David and Albert. According to Kikku, she attended a party in Kalihi on January 1, 2011 with her husband Erick Sam (Sam), at which both Albert and David were present. Kikku testified that she did not drink, but the men (including David, Sam, and Albert) were drinking beer and vodka. After an argument broke out at the party, Albert, Kikku, Sam, and a few others left the Kalihi house in Albert's car and went to Kikku's Awanei Street apartment in Waipahu. Kikku testified that before they left Kalihi, David told Albert to give him the beer in Albert's car; in response, Albert offered David one beer. David rejected Albert's offer and demanded all of the beer. Kikku testified that after Albert offered David the one beer, Kikku, Sam, and Albert departed for the Awanei Street apartment. At around 8:00 p.m., Kikku, Sam, Albert, and the others in Albert's car arrived at the Awanei Street apartment. The men started drinking, and about thirty minutes later, David arrived. Kikku testified that she did not invite David into the apartment, but told Sam that David was there. Sam went outside and told David not to come in, but David entered anyway.

         Once inside the apartment, David began drinking beer with Albert and Sam. Some time afterwards, Kikku heard the police come to her apartment and knock on the door.[6] Kikku testified that while the police were at the door on the lanai, David and Albert were in the parking lot downstairs. Kikku did not know whether the police talked to David and Albert, but after the police left, David and Albert came back upstairs.

         When David and Albert came back into the apartment, Kikku noticed a scratch on David's nose that was not bleeding but looked "fresh." In regard to the scratch on David's nose, David told Albert "how come you do this to me, no man can do this to me, " and he looked angry. Immediately after this exchange, David went outside and told Albert to go with him. Kikku held Albert's hand to stop him from going downstairs, and told him not to go, but Albert followed David outside. Within the next ten seconds, Kikku followed Albert out of her apartment where she went outside and saw David chase and hit Albert in the back of the head. Kikku did not know whether David had anything in his hand when she saw him hit Albert.

         Kikku followed David and Albert, and after turning a corner she saw Albert bending over with his torso parallel to the ground. Kikku went over to Albert to help him back to her apartment. She did not realize he was bleeding or hurt at the time.

         Kikku tried to walk Albert toward the apartment, but Albert had trouble walking. Kikku then saw David return with a rock in each hand, raised slightly above his shoulders. Kikku ran over to David and pushed him, trying to block him from Albert, and David pushed her back with the rocks, causing scratching under Kikku's arm and under her chin.

         Kikku let go of David after he pushed her with the rocks. At that point, she saw David run over to Albert, who was now laying face-up on the ground. David straddled Albert and it appeared to Kikku that David was going to throw the rocks onto Albert. When Kikku began screaming, David looked up, threw the rocks away, and ran away. Kikku and another person at the apartment carried Albert upstairs. The paramedics arrived and attempted CPR, and at this time Kikku realized that Albert was bleeding and had been stabbed. Albert was taken to the Hawai'i Medical Center West where he died at approximately 1:31 a.m. from a stab wound that punctured his heart.

         2. The Defense's Case

         After the prosecution rested its case, the defense called David as a witness. David's primary defense was that he acted in self-defense. In his testimony, he disputed Kikku's account. He contended that he was invited into Kikku and Sam's Awanei Street apartment and that Albert was the aggressor in the fatal confrontation.

         David testified that, prior to the confrontation at the Awanei Street apartment, on the evening of January 1, 2011, he attended a party at a relative's house in Kalihi. At the party, Albert approached him and said, "why are you looking at me, you want me to beat you up." David did not respond. David testified that after the threat from Albert, he left the apartment in Kalihi, and received a ride to Kikku and Sam's Awanei Street apartment in Waipahu. David denied Sam told him not to come inside to the party. He maintained that Sam never told him to go home. He recalled that just before the police arrived at the apartment, he was on the balcony and Albert was inside the apartment. When the police arrived, both David and Albert went downstairs. David testified that he did not speak with the police when they came to the Awanei Street address.

         After the police left, David and Albert went back upstairs and sat at the table in the living room. At that time, David told Albert to give him a beer, but according to David, Albert instead punched him and struck his nose with a beer bottle. Albert told David "see, I can - I can beat you up, " and David felt scared. Albert then challenged David to follow him downstairs to the parking lot for a fight.[7] David remained sitting for a brief period, but eventually went downstairs because Albert was calling him to come down to the parking lot, and David wanted "to tell [Albert] and beg him not to do that to me anymore."

         David testified that after he went downstairs to the parking lot, he was walking between two parked cars, when Albert started kicking and punching him. David fell down and Albert continued kicking him. While David was on the ground and Albert was kicking him, David got "something" in his hand, and swung at Albert with it. After that, David stood up and Albert stopped attacking him, backed off a little, and then he ran. David ran after Albert because he was "getting mad" at him. After he stopped and rested, David realized that Albert had injured him.[8]For this reason, he became "really mad, " picked up two rocks, and walked back towards Kikku and Albert.

         Kikku struggled to take the rocks from David, but David overpowered her. David then walked away from Kikku and was "going to throw the rocks at [Albert], " but when he approached Albert and saw him lying on the ground, he threw the rocks away. David then walked away; he did not at that time think Albert was dead.

         3. Recess in the Defense's Case and Bench Conference

         During a recess in David's testimony between direct and cross-examination, the State informed the court of its intent to call (1) Officer Woo as a rebuttal witness to show that David falsely testified he had not spoken to the police, and (2) Sam to show David falsely testified he was invited to the party inside the Awanei Street apartment. With respect to Officer Woo, the prosecutor stated that he "ha[d] been trying to reach one of [his] witnesses that [he] was not able to put on in [the] case-in-chief. . . . [I]t's Officer Randall Woo, who [he was] still trying to contact." When asked by the court for an offer of proof as to the testimony of Officer Woo, the prosecutor stated, "Officer Woo is the officer who responded to the original call or complaint that there were males making noise. He responded at about 11:30 to the Awanei Street address and spoke to both [Albert] and the defendant, which is contrary to what the defendant has testified to." To further challenge David's credibility, the State sought to offer Sam's testimony that David was never invited to his apartment.

         The defense objected to both rebuttal witnesses, arguing that, pursuant to State v. Duncan, 101 Hawai'i 269, 27667 P.3d 768, 775 (2003), the State should have presented the evidence from Officer Woo and Sam in its case-in-chief. The defense argued that under Duncan, the State was bound to give all available evidence in support of the charges against David in its case-in-chief, and was not permitted to withhold Officer Woo's testimony until rebuttal. Duncan, 101 Hawai'i at 276, 67 P.3d at 775. The State countered that it was unaware David would deny speaking to the police and that Officer Woo's testimony only became relevant to David's credibility once David surprised the prosecution by claiming during his direct testimony he had not spoken to the police. The defense raised the issue that in the police report the State relied upon for its theory of admissibility, "nowhere does Officer Woo identify Mr. David or Mr. Albert as the specific person he talked to."

         The court allowed the State to present its two rebuttal witnesses for "the limited purpose" of establishing whether David was invited to the Awanei Street apartment and whether David or Albert spoke to the police.

         4. The State's Cross-Examination of David

         At the conclusion of the bench conference at which the court acceded to the State's request to call two rebuttal witnesses, the State began cross-examination of David. During its examination, the State focused on David's testimony that he had not spoken to the police:

Q: Now, you testified last week that when the police come you did not talk to the police; correct?
A: No.
Q: Not at all?
A: No.
Q: Did the police officer come and tell you that you needed to leave the area?
A: No.
. . . .
Q: So it's your testimony that you did not speak to any police officer that night when they came over; correct?
A: Yes, I didn't talk to them.
Q: And no police officer asked you to leave the area, is that what you're telling us?
A: No.

         The prosecutor also asked David how he was wearing his hair on the night of the incident. David testified that his hair was "not as long" but that it was tied back with a rubber band. In answer to the prosecutor's questioning, he stated that Albert had very short hair.

         5. The Rebuttal Testimony of Officer Woo

         Officer Woo took the stand to rebut David's testimony that neither David nor Albert spoke to the police on the night of the incident. Officer Woo stated that he arrived at the Awanei Street apartment at approximately 11:30 p.m. on the evening of January 1, 2011 in response to a "suspicious circumstance" call from a female at the same address. Upon arrival, he spoke to the female who called him. Officer Woo also testified that he spoke to two other people at the Awanei Street apartment:

A: Other than the caller, I spoke with two males who were in the area.
Q: In which area were you talking about? When you say in the area, could you be more specific?
. . . .
Q: Okay, the record indicate he's indicating the parking lot fronting 84 or 94-832 Awanei Street.
Now, you spoke with - so did you speak with those males?
A: Yes.
Q: And could you describe them, give a description of each of the two males?
A: Only one male stood out in particular that night, it was a Micronesian ...

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