State v. Acacio. , 140 Haw. 92 ( 2017 )


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  •    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
    Electronically Filed
    Supreme Court
    SCWC-13-0000132
    15-JUN-2017
    08:18 AM
    IN THE SUPREME COURT OF THE STATE OF HAWAI#I
    ---o0o---
    STATE OF HAWAI#I,
    Respondent/Plaintiff-Appellee,
    vs.
    RAINIER ACACIO,
    Petitioner/Defendant-Appellant.
    SCWC-13-0000132
    CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-13-0000132; CR. NO. 12-1-0049)
    JUNE 15, 2017
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
    OPINION OF THE COURT BY NAKAYAMA, J.
    I.   INTRODUCTION
    Respondent/Plaintiff-Appellee the State of Hawai#i (the
    State) charged Petitioner/Defendant-Appellant Rainier Acacio
    (Acacio) with offenses arising from a domestic dispute between
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    Acacio and his ex-girlfriend, the complaining witness (CW).             The
    jury found Acacio guilty of one of the offenses - terroristic
    threatening in the first degree - and the Circuit Court of the
    First Circuit (circuit court) entered a judgment of conviction
    and probation sentence, which the Intermediate Court of Appeals
    (ICA) affirmed.
    In his application for writ of certiorari, Acacio takes
    issue, inter alia, with the circuit court’s decision to limit the
    CW’s testimony on cross-examination.        In brief, defense counsel
    asked the CW questions regarding her knowledge of Acacio’s
    immigration status and whether the CW knew that Acacio could face
    deportation if he was arrested.       The State objected.       Despite
    defense counsel’s argument that this line of questioning was
    imperative in order to establish the CW’s bias or motive, the
    circuit court sustained the State’s objection and struck the
    questions and responses from the record.
    We conclude that Acacio was deprived of his right to
    confront and cross-examine the complaining witness as to her bias
    and motive.   Testimony derived from the CW’s answers to the
    immigration questions might have illuminated the CW’s motive for
    calling the police, and ultimately had the potential to affect
    her credibility as a witness.       Accordingly, we vacate the ICA’s
    September 9, 2016 judgment on appeal, vacate the circuit court’s
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    February 4, 2013 judgment of conviction and probation sentence,
    and remand this case to the circuit court for a new trial.
    II.   BACKGROUND
    A.    Circuit Court Proceedings1
    On January 11, 2012, the State charged Acacio with:               1)
    one count of terroristic threatening in the first degree, in
    violation of Hawai#i Revised Statutes (HRS) § 707-716(1)(e), for
    threatening “to cause bodily injury to [the CW], with the use of
    a dangerous instrument, in reckless disregard of the risk of
    terrorizing [the CW]”; and 2) one count of abuse of family or
    household members, in violation of HRS § 709-906(1) and (5), for
    “intentionally, knowingly, or recklessly physically abus[ing]
    [the CW.]”
    The jury trial began on November 16, 2012.            On direct
    examination, the CW testified that Acacio was her live-in
    boyfriend just prior to the time of the January 1, 2012 incident,
    and that they had been together for almost two and a half years.
    The CW explained that in December of 2011, she broke up with
    Acacio, but that he continued to live in her house until the
    incident on January 1, 2012.
    The CW gave the following testimony about the incident
    that led to Acacio’s arrest:
    1
    The Honorable Edward H. Kubo, Jr. presided.
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    On the night of December 31, 2011, the CW’s family had
    a New Year’s party at their house.        The CW was outside, enjoying
    the party with her family, while Acacio was inside the house.
    Shortly after midnight, the CW received a phone call from Acacio,
    and they exchanged New Year’s greetings before she hung up.
    Soon after the phone call, the CW saw Acacio exit the house and
    she entered the house, went to her bedroom, and started preparing
    for bed.   As she was doing this, Acacio came into the bedroom,
    closed the door, and said that he wanted to fix their
    relationship.    The CW responded that their relationship was over;
    at this point, Acacio became mad and emotional and said that he
    would kill himself.     The CW responded, “go ahead, it’s not my
    fault,” and Acacio left the bedroom and returned holding a
    kitchen knife.    Acacio pointed the knife at himself and kept
    repeating that he was going to kill himself.          Acacio then
    “changed his mind,” pointed the knife at the CW, and started
    saying, “I will kill you.”      The CW knocked the knife out of
    Acacio’s hand, and Acacio then grabbed her by the face and
    punched her in the stomach.      When Acacio turned around to grab
    the knife, the CW locked herself in the bathroom and called 911.
    On cross-examination, the deputy public defender (DPD)
    elicited the following testimony from the CW:
    [DPD:] When you called 911, you told Rainier you were
    calling 911; right?
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    [CW:] Yes.
    [DPD:] You told him to grab your things?
    [CW:] And leave the house.
    [DPD:] And leave, right, leave me alone?
    [CW:] Yes.
    [DPD:] Leave my family alone?
    [CW:] Yes.
    [DPD:] But he didn’t leave; right?
    [CW:] Yes, ma’am.
    [DPD:] And when he didn’t leave, you got upset?
    [CW:] Excuse me?
    [DPD:] When he didn’t listen to you when you told him to
    leave, when he stayed there, you got upset?
    [CW:] Yes, ma’am.
    [DPD:] Because you had already been broken up with him for
    two weeks; right?
    [CW:] Yes, ma’am.
    [DPD:] He was still living in the house?
    [CW:] Yes, ma’am.
    [DPD:] You wanted him out of the house?
    [CW:] Yes, ma’am.
    [DPD:] He was supposed to be looking for a place; right?
    [CW:] Yes, ma’am.
    [DPD:] You didn’t think he was actually looking for a place?
    [CW:] He told me that he’s looking for a place and he asking
    for a time to look for a place.
    [DPD:] But you didn’t believe he was doing that; right?
    [CW:] No, I don’t believe.
    [DPD:] So that made you upset, too; right?
    [CW:] Yes.
    . . . .
    [DPD:] But you were upset he’s still there?
    [CW:] Yes.
    [DPD:] And that he won’t go away?
    [CW:] Yes.
    [DPD:] He won’t get out of the house?
    [CW:] Yes.
    [DPD:] And you know that Rainier is not a citizen of the
    United States; right?
    [CW:] Yes.
    [DPD:] You know that if he gets arrested he can get sent
    back to the Philippines; right?
    [CW:] Yes.
    [Deputy Prosecuting Attorney:] Objection.
    THE COURT: Objection is sustained. The jury is advised that
    immigration status has nothing to do with these charges.
    The jury is to determine the guilt or innocence as to Counts
    1 and 2 and I’m instructing you to disregard any mention or
    any comments concerning the defendant’s immigration status.
    . . . .
    [DPD:] But you wanted him out of the house?
    [CW:] Yes, ma’am.
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    [DPD:] Out of your life?
    [CW:] Yes, ma’am.
    [DPD] And you knew if he got arrested he would leave?
    [CW:] Yes, ma’am.
    (Emphases added.)
    After the jury was excused for the day, the DPD
    explained why she questioned the CW about her knowledge of
    Acacio’s immigration status:
    [DPD:] Thank you, Your Honor. With respect to the State’s
    objection to my questioning regarding my client’s –-
    THE COURT: Immigration status.
    [DPD:] –- status, yes, Your Honor, it’s the defense’s
    position that that goes to bias, interest, motive,
    specifically the motive to fabricate. I don’t think that –-
    I mean, I think it’s clear from my voir dire that part of
    our defense is that she fabricated at least certain portions
    of this. Why she fabricated or the motive involved would be
    highly relevant.
    That was the only reason why that question was posed
    to the witness, simply to establish she was aware of that
    and that she knew there would be consequences which would
    have substantiated a motive, and that was why I asked the
    question. In fact, the question that I was objected to,
    which was two questions to it, that was the only question I
    was going to ask and nothing further.
    THE COURT: I understand, and I’m not saying it was done in
    bad faith, I understand your reasons and rationale for doing
    that. However, on the other side of the coin, penalty and
    punishment shall not be considered by the jury and
    deportation of a person is a form of punishment. And I –-
    and under the facts and circumstances of this case, I feel
    that even notwithstanding your good faith in breaching the
    topic, that the prejudicial effect substantially far
    outweighs the probative value and so I sustained the
    objection. But, again, I find that you had a good faith
    basis for the question.
    On the next court date, and before the jury was brought
    in, the DPD once again clarified her stance on the immigration
    issue:
    [DPD:] Yes, Your Honor. With respect to the objection that
    I made at the end of our last –- before our last recess,
    which was specifically my questions regarding my client’s
    immigration status, I just also wanted to clarify for the
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    record that I had asked –- I’m sorry –- asked the
    complaining witness if she was aware of my client’s status.
    She had indicated yes. I then asked if she was aware of the
    consequences of him being arrested, where there was the
    objection and it was sustained.
    But I wanted to place on the record that I have a
    good-faith basis to believe that she would be able to
    respond in the affirmative due to the fact she is not a
    citizen as well. So she would be aware of the consequences
    of someone being arrested and not being a citizen.
    Additionally, although I did not request it before, I
    think given the fact that she may be recalled, I’d ask the
    Court to consider allowing the question but doing a limiting
    instruction to the jury which would address the prejudice
    that the Court referenced, which is that it goes more to
    penalty or punishment as opposed to motive and credibility.
    I believe that if the jury was instructed that they could
    only consider it for the limited purpose of determining the
    complaining witness’ credibility and her motive, that could
    address any of the prejudice issues.
    THE COURT: I understand the defendant’s concern. The Court
    has done a balancing act, and this Court finds that even
    though it may be relevant as far as 609 or bias or motive
    for interest, or whatever theory you may wish to blame this
    on, this Court still believes that the prejudicial offense
    still outweighs the probative value of that question,
    particularly in light of the fact that penalty or punishment
    would be now front and center for our jury’s consideration.
    And I don’t think that would be proper, but your point is
    well taken.
    [DPD:] And the Court does not believe that that could be
    cured through a limiting instruction?
    THE COURT: No, I don’t think that a limiting instruction
    would fix that, especially in light of the fact that you
    would not –- you would also be seeking to get that same
    information out about the complaining witness herself, which
    is, I feel, even further outside the potential circle.
    [DPD:] Actually, Your Honor, to clarify, I didn’t intend on
    asking the complaining witness that question about her
    status. But my good-faith basis belief that she knew about
    the consequences was based on the information that I
    received that she is not a citizen, but I was not going to
    ask her about that.
    THE COURT: Well, the Court would appreciate that. But the
    Court still feels that this –- the balancing of the interest
    falls in favor of exclusion of that question.
    [DPD:] Okay.
    Acacio testified that he and the CW had not been
    together as a couple for about two weeks before the New Year’s
    celebration and that, after midnight on January 1, 2012, he did
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    approach the CW in the bedroom to talk to her about their
    relationship.     Acacio testified that the CW appeared angry and
    told him, “[w]e don’t need to talk anything out.             We’re done.”
    Acacio explained that he felt hurt and that he retrieved a knife
    from the kitchen and returned to the bedroom “to show her that I
    will kill myself.”      Acacio testified that he never pointed the
    knife at the CW.
    On November 21, 2012, the jury found Acacio guilty of
    terroristic threatening in the first degree and not guilty of
    abuse of family or household members.          On February 4, 2013, the
    circuit court entered a judgment of conviction and probation
    sentence, which sentenced Acacio to five years of probation.
    B.    ICA Proceedings
    On appeal,2 Acacio argued that the circuit court erred
    in precluding Acacio from cross-examining the CW on whether she
    was aware of his immigration status.          According to Acacio, his
    immigration status was relevant because it established the CW’s
    “bias, interest and motive to fabricate her story.”             As a result,
    Acacio claimed that the circuit court violated his
    “constitutional right to confront witnesses via cross-
    2
    Acacio raised two issues on appeal before the ICA, the second relating
    to an undisputed Hawai#i Rules of Penal Procedure Rule 16 violation. Because
    our resolution of the first issue is dispositive of the second, we do not
    address it.
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    examination.”
    In response, the State argued that the jury had “ample
    information” as to the CW’s motive without receiving evidence of
    Acacio’s immigration status.      As such, the State claimed that
    because “the constitutionally required threshold level of
    inquiry” was afforded Acacio, the circuit court did not err in
    examining the evidence under Hawai#i Rules of Evidence (HRE) Rule
    403 and concluding that it was more prejudicial than probative.
    The State asserted that evidence of the CW’s knowledge of
    Acacio’s immigration status was more prejudicial than probative
    because questions regarding a defendant’s immigration status
    appeal to the trier of fact’s passion and prejudice.
    On July 29, 2016, the ICA entered a summary
    disposition order (SDO), which affirmed the circuit court’s
    judgment of conviction and sentence.        State v. Acacio, No. CAAP-
    XX-XXXXXXX, 
    2016 WL 4078838
    , at *1 (Haw. Ct. App. July 29, 2016).
    As to the issue of Acacio’s immigration status, the ICA concluded
    that “Acacio was afforded a level of inquiry on cross-examination
    sufficient to satisfy the confrontation clause of the Sixth
    Amendment to the U.S. Constitution.”        
    Id. at *1.
        In reaching
    this conclusion, the ICA explained that the circuit court “does
    not abuse its discretion in excluding evidence tending to impeach
    a witness ‘as long as the jury has in its possession sufficient
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    information to appraise the biases and motivations of the
    witness.’”    
    Id. (quoting United
    States v. Easter, 
    66 F.3d 1018
    ,
    1022-23 (9th Cir. 1995)).       The ICA then provided the following
    analysis:
    In the instant case, although the Circuit Court did
    not allow Acacio to cross-examine the CW specifically
    regarding her knowledge of his immigration status, the
    Circuit Court did allow Acacio to cross-examine the CW
    concerning her general understanding that if Acacio got
    arrested, he would leave their shared residence. That is,
    the Circuit Court permitted Acacio to establish through the
    CW’s testimony that she wanted Acacio out of the house;
    that, if he was arrested, he would leave; that she was angry
    that Acacio remained in the house after she asked him to
    leave; and that she had been angry shortly before she spoke
    to police officers. Each of these topics relates to the
    CW’s alleged bias or motive to lie. Thus, the Circuit Court
    complied with the Sixth Amendment and provided Acacio with
    ample opportunity to cross-examine the CW to demonstrate her
    bias or motive to lie. See Levell, 128 Hawai#i at 
    40, 282 P.3d at 582
    (citing Balisbasana [sic], 83 at 
    114, 924 P.2d at 1220
    ).
    Because Acacio was afforded the threshold level of
    inquiry under the confrontation clause, the Circuit Court
    was then permitted to exercise its discretion under HRE Rule
    403 and balance the prejudicial effect against the probative
    value of exposing the jury to evidence that Acacio’s arrest
    could result in his deportation because he was not a
    citizen. We conclude that the Circuit Court did not abuse
    its discretion in excluding the proffered evidence. The
    probative value of the proffered evidence to show the CW’s
    motive and bias to testify falsely was attenuated and weak.
    The CW’s knowledge of the potential deportation consequences
    of her testifying falsely did not show or provide a
    persuasive explanation for why she would testify falsely.
    In any event, the proffered evidence was cumulative of
    evidence permitted by the Circuit Court - that the CW knew
    that Acacio’s arrest would require him to leave her house.
    On the other hand, as the Circuit Court noted, questions
    concerning the penalty or punishment a defendant may face
    are not proper subjects for the jury to consider. In
    addition, a jury’s verdict cannot be based on sympathy for
    the defendant. The proffered evidence created a substantial
    risk that the jury would be unduly influenced or distracted
    by concerns that a finding of guilt would lead to Acacio’s
    deportation - an improper subject for the jury to consider.
    As such, the Circuit Court did not abuse its discretion in
    concluding that the prejudicial effect of the excluded
    evidence substantially outweighed its probative value.
    Therefore, the first point of error fails.
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    Id. at *2.
    On September 9, 2016, the ICA entered a judgment on
    appeal affirming the circuit court’s February 4, 2013 judgment of
    conviction and probation sentence.
    III.    STANDARDS OF REVIEW
    A.    Admissibility of Evidence
    As a general rule, [the appellate] court reviews evidentiary
    rulings for abuse of discretion. Kealoha v. County of
    Hawai#i, 
    74 Haw. 308
    , 319, 
    844 P.2d 670
    , 676 (1993).
    However, when there can only be one correct answer to the
    admissibility question, or when reviewing questions of
    relevance under Hawai#i Rules of Evidence (HRE) Rules 401
    and 402, [the appellate] court applies the right/wrong
    standard of review. 
    Id. at 319,
    844 P.2d at 676; State v.
    White, 92 Hawai#i 192, 204-05, 
    990 P.2d 90
    , 102-03 (1999).
    Moyle v. Y&Y Hyup Shin, Corp., 118 Hawai#i 385, 391, 
    191 P.3d 1062
    , 1068 (2008) (brackets omitted) (citing Kamaka v. Goodsill
    Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 
    176 P.3d 91
    , 103
    (2008)).
    “The trial court’s determination that the proffered
    evidence is probative of bias, interest or motive is reviewed
    under the right/wrong standard.”           State v. Balisbisana, 83
    Hawai#i 109, 114, 
    924 P.2d 1215
    , 1220 (1996) (citing State v.
    Kupihea, 80 Hawai#i 307, 314, 
    909 P.2d 1122
    , 1129 (1996)).
    B.    Confronting Adverse Witnesses
    Violation of the constitutional right to confront adverse
    witnesses is subject to the harmless beyond a reasonable
    doubt standard. In applying the harmless beyond a
    reasonable doubt standard the court is required to examine
    the record and determine whether there is a reasonable
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    possibility that the error complained of might have
    contributed to the conviction.
    State v. Pond, 118 Hawai#i 452, 461, 
    193 P.3d 368
    , 377 (2008)
    (citing Balisbisana, 83 Hawai#i at 
    113-14, 924 P.2d at 1219-20
    ).
    IV.   DISCUSSION
    Although Acacio raises three issues in his application
    for writ of certiorari, we do not address all three as we find
    his first issue dispositive:        whether the circuit court erred in
    precluding Acacio from cross-examining the CW as to her knowledge
    of his immigration status.        We agree with Acacio’s argument as to
    this issue and hold that the ICA erred when it held that the
    circuit court did not err in preventing Acacio from pursuing this
    line of questioning.
    A.    The ICA erred in affirming the circuit court’s decision to
    prohibit the defense from questioning the CW as to her
    knowledge of Acacio’s immigration status.
    “An accused’s right to demonstrate the bias or motive
    of prosecution witnesses is protected by the sixth amendment to
    the United States Constitution, which guarantees an accused,
    inter alia, the right ‘to be confronted with the witnesses
    against him [or her].’”       Balisbisana, 83 Hawai#i at 
    115, 924 P.2d at 1221
    .    “Indeed, the main and essential purpose of
    confrontation is to secure for the opponent the opportunity of
    cross-examination[,] . . . [and] the exposure of a witness’
    motivation in testifying is a proper and important function of
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    the constitutionally protected right of cross examination.”             
    Id. (alteration in
    original) (quoting Delaware v. Van Arsdall, 
    475 U.S. 673
    , 678-79 (1986)).      Additionally, HRE Rule 609.1(a) (1993)
    provides that the “credibility of a witness may be attacked by
    evidence of bias, interest, or motive.”         This court has
    established that “bias, interest, or motive is always relevant
    under HRE Rule 609.1.”     State v. Levell, 128 Hawai#i 34, 40, 
    282 P.3d 576
    , 582 (2012) (brackets omitted) (quoting State v.
    Estrada, 
    69 Haw. 204
    , 220, 
    738 P.2d 812
    , 823 (1987)).
    When determining whether a defendant has been afforded
    his constitutional right to demonstrate bias or motive on the
    part of the complaining witness, the appropriate inquiry “is
    whether the jury had sufficient information from which to make an
    informed appraisal of [the complaining witness’s] motives and
    bias[.]”   Balisbisana, 83 Hawai#i at 
    116, 924 P.2d at 1222
    ; see
    also Levell, 128 Hawai#i at 
    40, 282 P.3d at 582
    (“[T]he
    appropriate inquiry is whether the trier of fact had sufficient
    information from which to make an informed appraisal of the
    witness’s motives and bias.”).
    Once this step has been satisfied, the court may then
    consider whether the probative value of the evidence is
    substantially outweighed by the danger of unfair prejudice.             See
    Levell, 128 Hawai#i at 
    40, 282 P.3d at 582
    (“[E]vidence of
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    witness bias is relevant, and . . . the trial court’s discretion
    to exclude evidence under HRE Rule 403 only becomes operative
    after the threshold level of inquiry under the confrontation
    clause has been afforded.”).      As such, the second step is not
    triggered until the defendant is afforded the threshold level of
    inquiry under the confrontation clause; once this occurs, the
    trial court may conduct a balancing test to weigh the probative
    value of any additional motive evidence against its potential for
    undue prejudice.    
    Id. at 39,
    282 P.3d at 681 (“[T]he trial
    court’s discretion becomes operative ‘only after the
    constitutionally required threshold level of inquiry has been
    afforded the defendant.’” (quoting Balisbisana, 83 Hawai#i at
    
    114, 924 P.2d at 1220
    )).
    In the present case, the ICA concluded under the first
    step that Acacio’s right to confrontation was not violated
    because the jury had sufficient information to make an informed
    appraisal of the CW’s motive.       Acacio, 
    2016 WL 4078838
    , at *2.
    The ICA explained that, although the circuit court did not allow
    Acacio to cross-examine the CW about her knowledge of Acacio’s
    immigration status, the circuit court did allow cross-examination
    as to the CW’s “general understanding that if Acacio got
    arrested, he would leave their shared residence.”           
    Id. Then, under
    the second step, the ICA conducted a balancing test and
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    concluded that the “probative value of the proffered evidence to
    show the CW’s motive and bias to testify falsely was attenuated
    and weak,” while the potential for prejudice was much stronger.
    
    Id. For the
    following reasons, we conclude that the ICA
    erred under both steps of its analysis.
    1.    Acacio was not afforded the threshold level of
    inquiry under the confrontation clause because the
    jury did not have sufficient information to
    evaluate the CW’s motive.
    The ICA erred under the first step of this test when it
    concluded that the circuit court provided Acacio “ample
    opportunity [under the Sixth Amendment] to cross-examine the CW
    to demonstrate her bias or motive to lie.”            Acacio, at *2.      This
    court has considered variations of this issue in several cases
    and has clearly stated that the trier of fact must have
    sufficient information from which to make an informed appraisal
    of the complaining witness’s motives and bias.
    For example, in Balisbisana, the defendant was charged
    with abuse of a family or household member.             83 Hawai#i at 
    111, 924 P.2d at 1217
    .       At trial, the family court excluded reference
    to the complaining witness’s conviction for harassing the
    defendant, and the defendant was subsequently convicted.               
    Id. at 113,
    924 P.2d at 1219.        The defendant appealed and argued that
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    the circuit court’s exclusion of the complaining witness’s
    conviction violated his right to confront the witness and expose
    evidence of her motive for bringing false charges against him.
    Id. at 
    113-14, 924 P.2d at 1219-20
    .        This court agreed with the
    defendant, and vacated his conviction.         
    Id. at 116-17,
    924 P.2d
    at 1222-23.
    In coming to this conclusion, this court explained that
    “[t]he appropriate inquiry, therefore, is whether the jury had
    sufficient information from which to make an informed appraisal
    of [the complaining witness’s] motives and bias, absent evidence
    of her conviction for harassing [the defendant].”           Id. at 
    116, 924 P.2d at 1222
    .     This court noted that the “trial court
    prohibited all inquiry into [the complaining witness’s]
    conviction for harassing [the defendant]” and that a “reasonable
    jury might have received a significantly different impression of
    [the complaining witness’s] credibility had [the defendant’s]
    counsel been permitted to pursue his proposed line of cross-
    examination.”   
    Id. As such,
    this court held that the “trial
    court abused its discretion in excluding evidence of [the
    complaining witness’s] conviction from which the jury could have
    inferred that [the complaining witness] had a motive to bring
    false charges against [the defendant] and give false testimony at
    trial.”   
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    Likewise, in State v. Marcos, 106 Hawai#i 116, 
    102 P.3d 360
    (2004), the defendant, who was charged with and convicted of
    abuse of a family or household member, was not allowed to cross-
    examine the complaining witness about the pending family court
    case concerning the custody of their child.          On appeal, the
    defendant argued that the complaining witness had a motive to
    fabricate her allegations against him, and that his right to
    cross-examine the complaining witness to demonstrate her motive
    was violated.   
    Id. at 117,
    102 P.3d at 361.
    This court agreed with the defendant and concluded that
    he “had the right on cross examination to establish bias or
    prejudice.”   
    Id. at 122,
    102 P.3d at 366.        Citing to Balisbisana,
    this court reiterated that “the jurors were entitled to have the
    benefit of the defense theory before them so that they could make
    an informed judgment as to the weight to place on [the
    complaining witness’s] testimony which provided a crucial link in
    the proof.”   
    Id. As such,
    this court held that the defendant’s
    right of confrontation, as guaranteed by the United States and
    Hawai#i Constitutions, was violated.        
    Id. More recently,
    in Levell, the defendant was charged
    with harassment for allegedly shoving the complaining witness.
    128 Hawai#i at 
    35, 282 P.3d at 577
    .       Prior to the commencement of
    trial, the circuit court denied the defendant’s motion to cross-
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    examine the complaining witness on whether she had stolen and
    used the defendant’s credit cards after he was arrested.            
    Id. at 35-36,
    282 P.3d at 577-78.      The circuit court decided that
    evidence of the stolen credit cards was not relevant and was
    outweighed by the danger of unfair prejudice to the complaining
    witness.   
    Id. at 36,
    282 P.3d at 578.       This court vacated and
    remanded this decision and held that the defendant’s right to
    confrontation was violated:
    Respondent’s case against Petitioner hinged on the
    court’s willingness to believe Complainant’s testimony over
    Petitioner’s version of the events, and Petitioner’s
    accusation against Complainant may have given her a motive
    to slant the nature of her testimony against Petitioner.
    Had Petitioner been allowed to ask, he might have succeeded
    in eliciting testimony from Complainant tending to show that
    she was biased or had a motive to fabricate or exaggerate a
    story about harassment and to testify falsely in court.
    This, in turn, could have affected the court’s view of
    Complainant’s credibility, and might have led the court to
    conclude that Respondent had not proven its case. Without
    evidence of Complainant’s potential bias or motive, the
    court did not have a sufficient basis from which to make an
    informed appraisal of Complainant’s credibility. See
    Balisbisana, 83 Hawai#i at 
    116, 924 P.2d at 1222
    . As such,
    Petitioner’s right to confrontation was violated when the
    court prevented him from cross-examining Complainant about
    the alleged credit card theft.
    Id. at 
    40, 282 P.3d at 582
    .
    As these cases illustrate, in order to satisfy the
    confrontation clause, a defendant must be given the opportunity
    to cross-examine a witness as to his or her bias or motive.
    Applying this rule to the present case, the circuit court clearly
    curtailed Acacio’s effort to extract specific information from
    the CW relating to her motive when it prohibited cross-
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    examination of the CW as to her knowledge of Acacio’s immigration
    status.     This information, specifically the CW’s awareness of
    Acacio’s risk of deportation if he were arrested, raises the
    question of whether the CW accused Acacio of these offenses in
    order to have Acacio deported and permanently removed from her
    life.     This information was especially important for the jury to
    consider in light of the CW’s earlier testimony that she wanted
    Acacio out of the house but that he still had not left two weeks
    after their break-up.        The possibility of Acacio’s deportation
    presented a lasting solution to the CW’s relationship issues with
    Acacio, and may have motivated the CW to exaggerate or fabricate
    her story.      As such, without evidence of the CW’s knowledge of
    Acacio’s risk of deportation if arrested, the jury did not have
    sufficient information from which to make an informed appraisal
    of the CW’s motive.
    The ICA determined that the jury did have sufficient
    information from which to make an informed appraisal of the CW’s
    motive because the circuit court allowed Acacio to establish
    through the CW’s testimony that:            1) she wanted Acacio out of the
    house, 2) she was angry that Acacio remained in the house after
    she asked him to leave, and 3) she was angry with Acacio right
    before she spoke to police officers.           Acacio, 
    2016 WL 4078838
    , at
    *2.    We disagree.     In Levell, this court did not accept a similar
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    argument when it determined that giving a defendant “considerable
    latitude” during cross-examination of the complaining witness is
    not sufficient if the defendant is deprived of an opportunity to
    present evidence about the source of the complaining witness’s
    potential bias or motive.      128 Hawai#i at 
    41, 282 P.3d at 583
    .
    The Levell court concluded that the circuit court erred in
    precluding cross-examination of the complaining witness as to the
    credit card issue because “the court did not have in its
    possession sufficient information to apprise itself of the
    alleged bias and motivation of Complainant on what Petitioner
    indicated was the source of such a bias or motivation -– the
    alleged credit card theft.”      
    Id. Similarly, the
    jury in this case did not have
    sufficient information to apprise itself of the source of the
    CW’s alleged motivation for calling the police and testifying
    against Acacio, namely that the CW was trying to permanently
    remove Acacio from her house and her life by removing him from
    the country.   As such, the circuit court did not afford Acacio
    with the threshold level of inquiry required under the
    confrontation clause; the ICA erred in concluding otherwise under
    the first step of its analysis.
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    2.    The CW’s motive evidence was improperly excluded
    pursuant to HRE Rule 403.3
    Even if the ICA were correct that the threshold level
    of inquiry was met under the confrontation clause, the ICA erred
    in the second step of its analysis when it concluded that the
    evidence of the CW’s knowledge of Acacio’s immigration status was
    properly excluded under HRE Rule 403.
    HRE Rule 403 (1993) provides:        “Although relevant,
    evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice, confusion of the
    issues, or misleading the jury, or by considerations of undue
    delay, waste of time, or needless presentation of cumulative
    evidence.”
    The circuit court was concerned that evidence of
    Acacio’s immigration status was unduly prejudicial because
    “penalty and punishment shall not be considered by the jury and
    deportation of a person is a form of punishment.”            Similarly, the
    ICA noted that “a jury’s verdict cannot be based on sympathy for
    the defendant” and that the evidence of Acacio’s immigration
    3
    We note that this step in our analysis is not necessary because we
    conclude that the threshold level of inquiry under the confrontation clause
    was not met. See Levell, 128 Hawai#i at 
    40, 282 P.3d at 582
    (“[T]he trial
    court’s discretion to exclude evidence under HRE Rule 403 only becomes
    operative after the threshold level of inquiry under the confrontation clause
    has been afforded.”). We address the ICA’s analysis under the second step,
    however, for the sake of thoroughness and to provide guidance in this area of
    the law.
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    status “created a substantial risk that the jury would be unduly
    influenced or distracted by concerns that a finding of guilt
    would lead to Acacio’s deportation -- an improper subject for the
    jury to consider.”    Acacio, 
    2016 WL 4078838
    , at *2.
    It is true that questions about a defendant’s
    immigration status are generally considered both irrelevant and
    prejudicial in criminal proceedings.        See State v. Avendano-
    Lopez, 
    904 P.2d 324
    , 331 (Wash. Ct. App. 1995) (“Questions
    regarding a defendant’s immigration status are similarly
    irrelevant and designed to appeal to the trier of fact’s passion
    and prejudice and thus are generally improper areas of
    inquiry.”); Salas v. Hi-Tech Erectors, 
    230 P.3d 583
    , 586 (Wash.
    2010) (“Issues involving immigration can inspire passionate
    responses that carry a significant danger of interfering with the
    fact finder’s duty to engage in reasoned deliberation.”);
    Gonzalez v. City of Franklin, 
    403 N.W.2d 747
    , 760 (Wis. 1987)
    (noting that evidence of the possibility of the defendant’s
    deportation if found guilty would have an “obvious prejudicial
    effect” for the defendant).
    However, in this case, questions about Acacio’s
    immigration status were not used for an improper purpose.             See
    
    Avendano-Lopez, 904 P.2d at 331
    (“It is well-established that
    appeals to nationality or other prejudices are highly improper in
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    a court of justice, and evidence as to the race, color, or
    nationality of a person whose act is in question is generally
    irrelevant and inadmissible if introduced for such a purpose.”
    (emphasis added)).    In this case, the DPD made it clear that she
    was introducing this evidence in order to show the CW’s motive,
    and the circuit court acknowledged that the line of questioning
    was not done in bad faith.
    Additionally, the circuit court’s concern about unfair
    prejudice could have been allayed by a limiting instruction,
    which would have directed the jury to consider Acacio’s
    immigration status only for the purpose of evaluating the motive
    of the CW, and not for purposes of penalty, punishment, or other
    collateral consequences.      Thus, because Acacio’s immigration
    status was highly probative evidence of the CW’s motive, and
    because its prejudicial effect could have been contained through
    a limiting instruction, the ICA erred in concluding that the
    circuit court did not abuse its discretion when it excluded the
    evidence from trial.
    In sum, we conclude that the ICA erred in both steps of
    its analysis on this point of appeal.        Accordingly, Acacio’s
    right to confrontation was violated when the circuit court
    prevented him from cross-examining the CW about her knowledge of
    his immigration status.     We turn now to examining whether this
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    error was harmless.
    B.    The error was not harmless beyond a reasonable doubt.
    “Denial of a defendant’s constitutionally protected
    opportunity to impeach a witness for bias, motive or interest is
    subject to harmless error analysis.”          Balisbisana, 83 Hawai#i at
    
    117, 924 P.2d at 1223
    (citing State v. Corella, 79 Hawai#i 255,
    261, 
    900 P.2d 1322
    , 1328 (App. 1995)).           “In applying the harmless
    beyond a reasonable doubt standard the court is required to
    examine the record and determine whether there is a reasonable
    possibility that the error complained of might have contributed
    to the conviction.”       Pond, 118 Hawai#i at 
    461, 193 P.3d at 377
    (citing Balisbisana, 83 Hawai#i at 
    113-14, 924 P.2d at 1219-20
    ).
    This court considers a number of factors in determining whether
    an error is harmless in this context, including “the importance
    of the witness’ testimony in the prosecution’s case, whether the
    testimony was cumulative, the presence or absence of evidence
    corroborating or contradicting the testimony of the witness on
    material points, the extent of cross-examination otherwise
    permitted, and, of course, the overall strength of the
    prosecution’s case.”       Levell, 128 Hawai#i at 
    42, 282 P.3d at 584
    (quoting Olden v. Kentucky, 
    488 U.S. 227
    , 233 (1988)); see also
    Balisbisana, 83 Hawai#i at 
    117, 924 P.2d at 1223
    .
    Here, there is a reasonable possibility that the
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    circuit court’s error might have contributed to Acacio’s
    conviction.   The CW’s testimony was crucial to the prosecution’s
    case because she was the only eyewitness to Acacio’s alleged
    threat and abuse against her.       Because the alleged threats and
    abuse occurred in the CW’s bedroom, with only Acacio and the CW
    present, the case turned on the credibility of these two parties.
    As such, evidence of the CW’s motive to exaggerate or fabricate
    her story would have been helpful for the jurors in assessing the
    CW’s credibility and in ultimately determining which party to
    believe.
    And while the circuit court allowed cross-examination
    as to the CW’s potential ulterior motives for fabricating an
    allegation of abuse, the court did not permit any cross-
    examination with respect to the CW’s potential motive to get
    Acacio deported.    The possibility of Acacio’s deportation, which
    would appear to permanently solve the CW’s issues with her ex-
    boyfriend, could have furnished a strong motive for the CW to
    testify falsely.    As such, we conclude that there is a reasonable
    possibility that the circuit court’s error in limiting the CW’s
    testimony on the subject of Acacio’s immigration status might
    have contributed to Acacio’s conviction and was thus not harmless
    beyond a reasonable doubt.
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    V.   CONCLUSION
    For the foregoing reasons, we vacate the ICA’s
    September 9, 2016 judgment on appeal, vacate the circuit court’s
    February 4, 2013 judgment of conviction and probation sentence,
    and remand this case to the circuit court for a new trial.
    Jon N. Ikenaga                        /s/ Mark E. Recktenwald
    and Titiimaea N. Ta#ase
    for petitioner                        /s/ Paula A. Nakayama
    Brian R. Vincent                      /s/ Sabrina S. McKenna
    for respondent
    /s/ Richard W. Pollack
    /s/ Michael D. Wilson
    26