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State v. Brown

Supreme Court of Hawaii

July 25, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
WALTER BROWN, Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000354; CR. NO. 13-1-1006)

          Jacquelyn T. Esser (William H. Jameson, Jr. on the brief and application) for Petitioner

          Sonja P. McCullen for Respondent

          McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          WILSON, J.

         Petitioner/Defendant-Appellant Walter Brown ("Brown") appeals his assault conviction on the grounds that his constitutional right to confront an adverse witness was violated. A jury found Brown guilty of one count of assault in the second degree under Hawai'i Revised Statutes ("HRS") § 707- 711(1)(a) (2014); he was sentenced to a term of probation of four years with special terms and conditions. The Intermediate Court of Appeals ("ICA") affirmed the Circuit Court of the First Circuit's ("circuit court") judgment and sentence. Brown contends that his constitutional right to confrontation was violated when the circuit court refused to allow cross-examination of the complaining witness on two topics relevant to her bias, interest, or motive for testifying against him. Specifically, Brown argues he should have been permitted to cross-examine the complaining witness regarding her pending misdemeanor assault charge arising from the same incident for which he was charged, and her probation status resulting from a separate assault charge.

         Under the constitutions of the United States and the State of Hawai'i, the right to confront witnesses is fundamental to a fair trial. U.S. Const, amend. VI; Haw. Const, art. I, § 14. When a trial court errs by violating that right, a conviction obtained at trial will be upheld only if the error was harmless beyond a reasonable doubt. In this case, Respondent/Plaintiff-Appellee State of Hawai'i ("the State") concedes that Brown's constitutional right was violated, but contends the error was harmless beyond a reasonable doubt. Because the error deprived the jury of information about the complaining witness, the exclusion of which might have contributed to its decision to convict, see State v. Acacio, 140 Hawai'i 92, 98, 398 P.3d 681, 687 (2017), the violation of Brown's right to confrontation was not harmless beyond a reasonable doubt.

         I. BACKGROUND

         Brown was charged with one count of assault in the second degree and one count of assault in the third degree as a result of a fight at a restaurant in Honolulu on February 20, 2013, at around 1:30 p.m. The fight involved Brown, his pregnant wife ("Wife"), and his two daughters from a previous relationship, one of whom is the complaining witness ("CW") and the other of whom is CWs sister ("Sister") . CW and Sister were at the restaurant to meet their mother ("Mother"). The facts are disputed. CW and Sister provided testimony which portrayed Brown as the initial aggressor. Brown and Wife testified that Brown acted in self defense and did not initiate the altercation.

         A. State's Motion in Limine and Defense's Notice of Intent Regarding Prior Bad Acts of CW

         Prior to trial, the State filed a motion in limine to exclude any prior bad acts of its witnesses. In its motion, the State sought an order compelling Brown to disclose "the date, location and general nature of any prior bad acts of any of the State's witnesses, if any, that the Defendant intends to introduce or refer to during cross-examination of any State's witness or during the direct examination of any defense witness" and excluding or limiting such evidence under Hawai'i Rules of Evidence ("HRE") Rules 401, 402, and 403.

         Brown similarly filed a pretrial notice of intent to introduce evidence of the following five incidents or facts relating to CW, members of the public, and members of her family: (1) in 2013, CW was charged with harassment stemming from an incident in which she allegedly threw a soda can into a driveway where people had gathered for a birthday party while yelling insults; (2) in 2010, CW was charged with terroristic threatening in the second degree for an incident in which she allegedly threatened to kill Mother, to which CW later pleaded no contest to an amended charge of harassment; (3) on February 20, 2013, CW was arrested and charged with assault in the third degree against Wife and assault in the third degree against Brown for conduct arising out of the incident at the restaurant; (4) in 2013, CW was arrested and charged with abuse of family or household members arising from an incident in which she allegedly struck her daughter in the face, to which she later pleaded guilty to a charge of assault in the third degree; and (5) CW was under misdemeanor probation supervision as a result of her plea to the assault in the third degree charge arising from the assault of her daughter.

         At the pretrial hearing to address the State's motion in limine and Brown's notice of intent, [1] the circuit court denied Brown's motions to admit evidence of the two assault charges arising out of the incident at the restaurant and to admit evidence that CW was on probation. However, the circuit court granted Brown's motions to introduce evidence of the three past incidents of violence, [2] but with a limitation that defense counsel could admit evidence of only two of the three incidents, as introducing evidence of all three would be more prejudicial than probative.

         In denying Brown's motion to admit the evidence of the charges against CW arising out of the incident at the restaurant, the circuit court stated that the arrest at the restaurant was "irrelevant to whether or not the State can make its burden of proof as to the material elements as to the defendant. And so I think that interjecting the fact that the complaining witnesses were arrested confuses the jury and misleads them in an unfair way." As to the evidence that CW was on probation for the 2013 assault, the circuit court said that it had "no probative value whatsoever."

         During the first day of trial, defense counsel renewed the motion to present evidence that, as a result of the fight at the restaurant, CW was arrested and charged with assaulting Brown and Wife:

[The defense: ]To not be able to do that presumes or gives the jury -- jury does not get the complete story because the incident and the circumstances of the case arise out of the same facts and circumstances. I believe it's important for our defense and as well as the jurors to know that even though Mr. Brown sits here as the accused, there is [sic] cross-complaints.
For example, if we were to use the defense of mutual affray, your Honor, it's a stronger defense if you were to show that she too was charged by the police, your Honor, and she too was arrested, your Honor.'[3] And so we believe that by not allowing us to go into that, to delve into that area, your Honor, restricts the defenses that we may be able to assert in this case.

         The circuit court denied the request on the grounds that CW s culpability arising from her actions ...


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