STATE OF HAWAI'I, Respondent/Plaintiff-Appellee.
PETER DAVID, Petitioner/Defendant-Appellant.
TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000109; CR.
W. Jerome for petitioner.
M. Anderson and Loren J. Thomas for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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),  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
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.
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.
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 .
Trial Court Proceedings
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 and 706-656. The State also charged David with
assault in the second degree of Kikku, in violation of HRS
§ 707-711(1). Dav id's jury trial began on September
The State's Case-in-Chief
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
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. 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.
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.
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.
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.
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.
The Defense's Case
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.
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.
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. 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."
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.For this reason, he became "really
mad, " picked up two rocks, and walked back towards
Kikku and Albert.
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.
Recess in the Defense's Case and Bench
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.
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
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.
The State's Cross-Examination of David
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?
Q: Not at all?
Q: Did the police officer come and tell you that you needed
to leave the area?
. . . .
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?
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.
The Rebuttal Testimony of Officer Woo
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
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?
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