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Batalona v. State

Supreme Court of Hawaii

March 19, 2018

ALBERT BATALONA, Petitioner and Respondent/Petitioner-Appellant,
STATE OF HAWAI'I, Respondent and Petitioner/Respondent-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000569; S.P.P. NO. 10-1-0096; CR. NO. 99-1549)

          Albert Batalona pro se

          Brandon H. Ito for respondent



          POLLACK, J.

         This case arises from a challenge by Albert Batalona to the order of the Circuit Court of the First Circuit (circuit court) that denied without a hearing Batalona's post-conviction petition, which raises twenty-four grounds for relief.

         On appeal, the Intermediate Court of Appeals (ICA) held that the circuit court erred in denying without a hearing Batalona's claims in his petition relating to defense counsel's failure to challenge a prospective juror for cause and to secure at trial the attendance of a co-participant in the robbery whose out-of-court statement was admitted against Batalona. The ICA otherwise affirmed the circuit court's order denying the petition.

         Both the State of Hawai'i and Batalona applied to this court for a writ of certiorari. In his certiorari application, Batalona contests the ICA's decision insofar as it affirmed the circuit court's order as to the other twenty-two grounds raised in his petition. The State's application challenges the ICA's determination that defense counsel's failure to attempt to obtain the co-participant's attendance at trial raises a colorable claim for relief.

         First, with regard to Batalona's certiorari application, we hold that grounds 8 and 10 of his petition, which assert that defense counsel's failure to challenge the denial of Batalona's request for a copy of discovery materials resulted in the impairment of his right to present a complete defense and adversely affected his waiver of the right to testify, raise colorable claims for relief. We otherwise affirm the ICA's denial of a hearing with regard to the remaining grounds set forth in the petition except as to ground 18, which we dismiss without prejudice.

         Second, with respect to the State's certiorari application, we affirm the ICA's determination that ground 20(f) of Batalona's petition, which asserts that defense counsel failed to exercise a good faith effort to obtain the co-participant's attendance at trial, raises a colorable claim for relief.

         Accordingly, we remand this case to the circuit court for further proceedings in accordance with this opinion.

         I. BACKGROUND

         On July 12, 1999, Batalona, Sean Matsunaga, and Jacob Hayme were charged by complaint with bank robbery, in violation of 18 United States Code § 2113(a), in the United States District Court for the District of Hawaii. Matsunaga and Hayme were additionally charged with firearm violations. The complaint against Batalona was subsequently dismissed without prejudice at the request of the United States Attorney.

         On August 11, 1999, a circuit court grand jury indicted Batalona on seventeen counts under state law, including the following: robbery in the first degree in violation of Hawaii Revised Statutes (HRS) § 708-840(1) (b) (ii)[1] (count 1); attempted murder in the first degree in violation of HRS §§ 705-500, [2] 707-701(1)(b), [3] and 706-656[4] (count 2); carrying, using, or threatening to use a firearm in the commission of a separate felony in violation of HRS § 134-6(a) and (e)[5] (count 3); and possession of a prohibited firearm in violation of HRS § 134-8(a)[6] (count 17). The State thereafter filed a motion for nolle prosequi of counts 4 through 16, which the circuit court granted.

         A. Pretrial Request for Discovery

         At a pretrial hearing, defense counsel requested permission from the circuit court to give Batalona a redacted copy of the discovery that defense counsel had received.[7]Defense counsel indicated that he had been provided approximately 3, 000 pages of discovery and that it was important for Batalona to receive the discovery because each witness was going to testify as to events that occurred on the day of the incident. The circuit court denied defense counsel's request, expressing its concern that, if Batalona were permitted to have a copy of the discovery, then the court will "have every defendant always asking for information." The court added that "there's very few information that any defendant really needs to understand in terms of the details of a case" and that defense counsel "can go to the prison and discuss it with [Batalona]." Defense counsel responded that it would probably take about one to two months to review the discovery with Batalona because he was incarcerated and argued that Batalona was entitled to review the reports and witness statements against him "word by word." The court responded that "[t]here are other ways" and denied counsel permission to provide a copy of the redacted discovery to Batalona.

         B. Pretrial Motions

         Hayme and Matsunaga, who were co-participants in the robbery, both reached plea agreements with the federal government. In Matsunaga's Memorandum of Plea Agreement, he admitted his involvement in the robbery and identified Batalona as the person who was responsible for shooting at the officer. Two days later, Matsunaga provided a recorded statement in which he implicated himself as the person who shot at the officer. Hayme also provided a recorded statement, in accordance with his Memorandum of Plea Agreement, which was both inculpatory and exculpatory as to his involvement in the charged offenses in this case.[8]

         On July 17, 2000, the State filed a motion in limine seeking to preclude, inter alia, the admission of Matsunaga's recorded statement at trial. In its motion, the State noted that it did not appear that either Hayme or Matsunaga would be testifying at trial. Batalona opposed the State's motion, arguing, inter alia, that Matsunaga's recorded statement was admissible pursuant to the hearsay exceptions regarding public records and reports and statements against interest.

         The State's motion was heard on July 20, 2000, and the State reiterated that Matsunaga would not testify at trial.[9] The State contended, alternatively, if Matsunaga's statement was admitted into evidence, his Memorandum of Plea Agreement, as well as Hayme's recorded statement, would also have to be admitted. In response, Batalona maintained that Matsunaga's recorded statement was admissible and additionally noted that it was the defense's desire to call Hayme and Matsunaga to determine whether they would invoke their privilege against self-incrimination. Batalona argued that he had a constitutional right to confront witnesses and a constitutional right to present his defense.

         The circuit court ruled that, if Batalona introduced Matsunaga's recorded statement, both that statement and Matsunaga's Memorandum of Plea Agreement would be admitted as evidence. As to Hayme's recorded statement, the court determined that the introduction of that statement alone--so long as the statement was inculpatory to Hayme and fell within a hearsay exception--would be permitted. The court suggested that both parties should attempt to get live witnesses, to which the State responded, "We can't get them." The court reiterated that "you should first try that, " and the State responded, "We've tried that."

         On July 24, 2000, the State filed a motion for redaction of Hayme's and Matsunaga's statements, attaching both statements and requesting that specific pages and lines be redacted. The following day, Batalona filed a second supplemental motion in limine, seeking an order precluding any references to portions of any statement that do not fall within an exception to the hearsay rule or that violate Batalona's constitutional right to confrontation.

         A hearing on both parties' motions was held on July 31, 2000. The transcript of this portion of the hearing is not part of the record on appeal.

         C. Trial and Appeal

         A jury trial took place from July 27, 2000, through August 11, 2000. At trial, the following evidence was adduced. On July 7, 1999, Batalona, Hayme, Matsunaga, and Roger Dailey were involved in an armed robbery of the American Savings Bank located at 1215 Hunakai Street in Kahala, Hawai'i. At approximately 10:00 a.m., Batalona, Hayme, Matsunaga, and Dailey entered the bank wearing ski masks and dark clothes; bank employees and customers were ordered to get on the floor and keep their eyes on the ground. The four men removed approximately $120, 000 from the cash drawers and the tellers' cash dispensers and exited the bank. Batalona and Matsunaga were each carrying an AR-15 military assault rifle, Dailey held a .357 revolver, and Hayme was armed with an AK-47 military assault rifle.

         At approximately 10:03 a.m. on that day, Honolulu Police Department (HPD) Officer Frederick Rosskopf--who was on duty and in uniform--was dispatched to the American Savings Bank in Kahala to investigate the activation of the bank's silent alarm. Officer Rosskopf parked his car on the side of the street on which the bank was located and then walked along the sidewalk toward the bank. As he approached the bank's parking lot, Officer Rosskopf saw a male wearing a dark ski mask and dark clothing, who appeared to be standing behind a vehicle--"like a roof of a car in front of him." The masked male had a rifle to his right shoulder, which was aimed directly at Officer Rosskopf. The masked male immediately opened fire upon seeing Officer Rosskopf, causing Officer Rosskopf to dive for cover behind a white compact car. The rate of fire quickened, pinning Officer Rosskopf behind the car. Some of the rounds hit the car that Officer Rosskopf used as cover. Officer Rosskopf returned fire but took cover again as the masked male continued firing at him. The rate of fire eventually slowed to a stop. Officer Rosskopf received some scratches and bruises as a result of the incident.

         Dailey testified that Batalona stood "in the door jamb on the passenger side" of the vehicle during the exchange of gunfire, Batalona's weapon was pointed in the direction of Officer Rosskopf's car, Batalona fired first, and Hayme and Matsunaga were still in the bank when the shooting started.[10]

         Siosaia Talakai, a friend whom Batalona stayed with following the robbery, and who was called as a witness by the State, testified that Batalona told him that he did not intend to kill Officer Rosskopf and that his main concern was to get away.

         Following the exchange of gunfire, Officer Rosskopf saw a white Blazer--which was used as a getaway car--exiting the parking lot of the American Savings Bank driven by a man wearing a black ski mask and dark clothing. After providing dispatch with a description of the vehicle and the vehicle's direction of travel, Officer Rosskopf proceeded toward the bank parking lot. Upon reaching a wooden fence, Officer Rosskopf saw another male wearing a dark ski mask running toward Kahala Mall. Officer Rosskopf could not tell whether that masked male was the same person who shot at him.

         Hiroshi Inouye, a delivery driver for the Makiki Bake Shop, was delivering bread and other baked goods using the shop's van when a man wearing a ski mask came in front of the vehicle, causing Inouye to stop the van. The masked man, who was carrying what appeared to be an automatic rifle, opened the van door, asked for the keys, and ordered Inouye out of the van; Inouye complied. The masked man then drove off with the van. The State argued in closing argument that Batalona was the masked man who shot at Officer Rosskopf and who took the van.

         The van was recovered by police and returned to the owner of the Makiki Bake Shop the day after the robbery. Approximately two weeks later, a rifle magazine was discovered in the passenger side door of the van. The magazine, which had four remaining cartridges, was turned over to police by the Bake Shop owner and later admitted into evidence at trial.

         Pursuant to an investigation conducted by HPD, it was discovered that two weapons were fired on the day of the robbery: the AK-47 that was later recovered from Hayme's home and one of the AR-I5s. In addition, officers learned that, about two or three weeks prior to the bank robbery, Batalona, Dailey, Hayme, and Matsunaga went pig hunting at Waiahole Ranch, where Batalona fired an AR-15 rifle. Police also learned that Batalona was a range instructor at the Diamond Head Gun Shop. HPD recovered, inter alia, twenty-nine cartridge casings and a magazine containing thirty cartridges from the bank parking lot and twenty shell casings from Waiahole Ranch. The two AR-15 rifles that were apparently used in the course of the robbery were not recovered.

         Hayme did not testify, but a redacted version of his recorded statement was offered by the State, admitted into evidence, [11] and played for the jury.[12] The recorded statement was given--as part of his plea agreement with the federal government--the day after Hayme pled guilty to robbery and a firearm violation in federal court. In his statement, Hayme said that all four robbers were on the passenger side of the Blazer during the exchange of gunfire. Hayme stated that he did not fire his weapon until after shots were fired. He also stated that one person was mounted on top of the Blazer; that person--who was not Hayme--was firing at Officer Rosskopf. Hayme further said that he fired about two rounds "[m]aybe just in the air" and that he did not shoot at Officer Rosskopf.

         The State also presented the testimony of Curtis Kubo and Charles Davis, experts in firearms and ballistics. The firearms and ballistics evidence indicated that the magazines recovered from the bakery van and the bank parking lot were manufactured to function with either an AR-15 or an M-16 rifle. In addition, twenty-five of the twenty-nine cartridge casings recovered from the bank parking lot were fired from an AR-15, which was the same AR-15 that fired the twenty cases recovered from the ranch. The AR-15 is also chambered for the type of ammunition found in the magazine recovered from the bakery van.

         Following the conclusion of the State's case-in-chief, the defense moved for judgment of acquittal, which motion the court denied. The defense offered a redacted version of the recorded statement of Matsunaga, who did not testify. The redacted statement was admitted into evidence and played for the jury.[13] In his statement, Matsunaga said that on the day of the incident he was the last person out of the bank, he had an AR-15 rifle, and he shot at Officer Rosskopf. Matsunaga's recorded statement contradicted his version of events as set forth in his Memorandum of Plea Agreement, in which he stated that Batalona fired numerous rounds at Officer Rosskopf.[14]

         The circuit court subsequently advised Batalona of his rights to testify and not to testify; Batalona elected not to testify, and the defense rested.

         The circuit court instructed the jury on the lesser included offenses of attempted murder in the first degree, attempted assault in the first and second degree, and reckless endangering in the first degree. Batalona requested that the court also instruct the jury on attempted murder in the second degree, attempted reckless manslaughter, and assault against a police officer, which instructions the court refused. The parties then presented closing arguments.

         The jury found Batalona guilty as charged on all four counts. The circuit court sentenced Batalona to the following: count 1, twenty years imprisonment with a mandatory minimum term of fifteen years imprisonment; count 2, life imprisonment without the possibility of parole; count 3, twenty years imprisonment with a mandatory minimum term of fifteen years imprisonment; and count 17, five years imprisonment with a mandatory minimum term of five years. All of the terms of imprisonment were ordered to run concurrently unless there were other sentences for which Batalona was already serving. The court also imposed restitution in the amount of $6, 244.02. Judgment of conviction and sentence was entered on October 11, 2000, from which Batalona appealed. On October 9, 2003, this court affirmed the judgment of conviction and sentence in a summary disposition order. State v. Batalona, No. 23820, 2003 WL 22311769 (Haw. Oct. 9, 2003) (SDO).

         D. Petition for Post-Conviction Relief

         On December 8, 2010, Batalona--proceeding pro se filed a petition for post-conviction relief pursuant to Hawai'i Rules of Penal Procedure Rule 40 (petition), asserting twenty-two grounds for relief. Batalona filed a motion to supplement his petition with ground 23, which the circuit court granted. Batalona later filed a supplemental ground 24. Of the twenty-four grounds raised in the petition, nineteen involve allegations of ineffective assistance of counsel; three involve allegations of illegality in the sentence Batalona received; one involves an allegation of post-conviction denial of access to discovery; and one involves an allegation of cumulative errors and omissions that would preclude instructions on lesser included offenses in a retrial.

         Following a series of ex parte motions by the State to extend the time to file its response, which were primarily related to the State's ongoing efforts to obtain a declaration from defense counsel, the State filed its answer to the petition on November 17, 2011.[15] Batalona thereafter filed a reply to the State's answer.

         On January 25, 2012, the State filed a supplemental answer to the petition, which includes a declaration from defense counsel (Declaration), [16] In his Declaration, defense counsel stated that any error or omission on his part relating to Batalona's claims of ineffective assistance of counsel, as alleged in grounds 1-6, 8-9, 13-17, 19-21, and 23 of the petition, did not result in the substantial impairment of a meritorious claim or defense and/or was the result of a strategic or tactical decision. As to ground 10, which involves an allegation relating to counsel's advice that Batalona should not testify at trial, defense counsel stated that the circuit court conducted a colloquy with Batalona regarding his right to testify as required by Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995), adding that any privileged communications between Batalona and him would not be disclosed without a court order indicating the privilege was waived. As to grounds 7, 11-12, 18, and 22, which involve allegations regarding the propriety of Batalona's sentence, post-conviction denial of access to discovery, and cumulative errors and omissions relating to a retrial, defense counsel declared that these allegations did not relate to a claim of ineffective assistance of counsel.

         On July 1, 2015, the circuit court issued its "Findings of Fact, Conclusions of Law, and Order Denying Petition for Post-Conviction Relief Without a Hearing" (Order) .[17]The court concluded that Batalona's claims of ineffective assistance of counsel in grounds 1-6, 8-10, 13-17, 19-21, and 23 were "patently frivolous and without a trace of support" because Batalona failed to point to specific errors or omissions by defense counsel resulting from a lack of skill, judgment, or diligence.[18] The circuit court also concluded that grounds 7, 11, 12, 18, and 22 were patently frivolous and without a trace of support either in the record or from the evidence submitted by Batalona. Concluding that Batalona failed to demonstrate the existence of a colorable claim that would have required a hearing before the circuit court, the court denied Batalona's petition without a hearing.[19] Batalona filed a notice of appeal to the ICA.


         In his opening brief, Batalona asserted that the circuit court erred in denying a hearing on twenty-one of the twenty-three grounds raised in the petition and in not addressing ground 24.[20] Specifically, with regard to ground 1, Batalona argued that defense counsel provided ineffective assistance by being compelled to use peremptory challenges--that Batalona wanted to use to excuse other jurors--on two prospective jurors who should have been challenged and excused for cause.

         As to ground 20(f), Batalona argued that defense counsel provided ineffective assistance by failing to secure the attendance of Hayme and Matsunaga at trial. Batalona submitted that Hayme and Matsunaga gave investigators recorded statements that were both favorable and contrary to Batalona's interests. Redacted versions of those statements, Batalona continued, were admitted into evidence and published to the jury in violation of his right to confrontation of witnesses.

         In its answering brief, the State argued, inter alia, that Batalona's claim in ground 1 failed as a matter of fact because Batalona did not demonstrate that the prospective jurors who allegedly should have been excused for cause were in fact selected as jury members in Batalona's trial. In the alternative, the State contended that Batalona's claim failed as a matter of law because Batalona did not show that the prospective jurors had biases favoring law enforcement.

         As to ground 20(f) of Batalona's petition, the State asserted that the transcripts and the recordings of Hayme's and Matsunaga's statements were admitted into evidence as defense exhibits.[21] In addition, the State argued that defense counsel used Hayme's and Matsunaga's statements in closing argument to support the defense theory that Batalona was not the person who shot at Officer Rosskopf. The State contended that the decision to call a witness to testify is a tactical one that is typically within the judgment of defense counsel.

         In his reply brief, Batalona contended that the issue in ground 1 was not whether the prospective jurors actually served on the jury, but rather, counsel's expending of peremptory challenges on prospective jurors whom the circuit court should have excused for cause had they been so challenged. Thus, according to Batalona, he was left with no peremptory challenges to use on other jurors having ties to law enforcement and who ended up serving on the jury in his case.

         As to ground 20(f), Batalona replied that the use of the recordings and the transcripts of Hayme's and Matsunaga's statements would have been permitted if Hayme and Matsunaga were unavailable, which they were not. Batalona reiterated that defense counsel's failure to secure the attendance of Hayme and Matsunaga violated his right to confrontation.

         In its memorandum opinion, the ICA determined as to ground 1 that it was unclear whether defense counsel would have succeeded in having the first of the two prospective jurors identified by Batalona excused for cause, as the juror showed no bias in favor of law enforcement. However, the ICA concluded that the second prospective juror may have demonstrated sufficient bias against Batalona that defense counsel could have succeeded in challenging that juror for cause, thus preserving one of his peremptory challenges to excuse another prospective juror. Concluding that defense counsel's basis for not challenging the second prospective juror for cause was unclear and that his Declaration did not provide an adequate explanation, the ICA held that Batalona raised a colorable claim and that the circuit court therefore erred in denying ground 1 of Batalona's petition without a hearing.

         Turning to ground 20(f), the ICA held that the admission of Matsunaga's recorded statement did not violate Batalona's Sixth Amendment right to confrontation because Batalona himself introduced Matsunaga's statement at trial. As to Hayme's statement, the ICA determined that the statement was testimonial and that the record was unclear whether Hayme was really unavailable. The ICA found that, while Hayme apparently refused to testify, there did not appear to be any evidence that the State made an effort in good faith to secure Hayme's attendance at trial. Had Hayme testified, the ICA continued, Batalona may have cast reasonable doubt on the State's theory that Batalona shot at Officer Rosskopf because, as the State conceded, Hayme also fired his weapon during the robbery. As a result, if defense counsel did not subpoena Hayme, the ICA determined that such a failure may have resulted in the withdrawal or the substantial impairment of a potentially meritorious defense. Because defense counsel's Declaration did not adequately address his decision not to subpoena Hayme, the ICA concluded that the circuit court should have held a hearing on this portion of ground 20(f) of Batalona's petition.

         Accordingly, the ICA vacated the circuit court's Order and remanded the case for a hearing on grounds 1 and 20(f). As to the remaining grounds, the ICA affirmed the circuit court's denial of a hearing, concluding--without individually addressing--that "the other twenty-one separate grounds, as well as the other subparts of Ground 20 in Batalona's Rule 40 Petition . . . are patently frivolous and ...

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