State v. Brown. , 446 P.3d 973 ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
25-JUL-2019
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
WALTER BROWN,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 13-1-1006)
JULY 25, 2019
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY 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 Hawaiʻi Revised Statutes (“HRS”) § 707-
711(1)(a) (2014); he was sentenced to a term of probation of
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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 Hawaiʻi, 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 Hawaiʻi (“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
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Hawaiʻi 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 CW’s 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
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witness or during the direct examination of any defense witness”
and excluding or limiting such evidence under Hawaiʻi 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.
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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.”
1
The Honorable Edward H. Kubo, Jr. presided.
2
That is, the court allowed introduction of evidence relating to
the 2013 harassment charge, the 2010 harassment conviction, and the 2013
third degree assault conviction.
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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 during the incident was
irrelevant:
[The Court: ]This trial deals with the guilt or innocence
of Mr. Walter Brown. The jury will be advised that they
are to consider this evidence as to him and no one else.
To bring in any outside information of another being
arrested raises a presumption of guilt of that other person
which is not being tried in this case at this time. That’s
for another court to decide. What is sufficient is the
guilt or innocence of the defendant based on the evidence
and this indictment and two counts, and so this Court will
deny the defense’s request to bring in evidence of anyone
else’s arrest because that’s neither here nor there, nor is
it the purview of the jury to decide the guilt or innocence
of anyone else.
During the second day of the trial, counsel for the
defense again renewed its position that the defense should be
3
At trial, the jury was instructed about mutual consent as a
defense to assault in the third degree.
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allowed to question CW regarding the fact that she was charged
with assaulting Brown and Wife. Defense counsel argued that the
evidence “goes to bias, motive, and interest . . . with respect
to her testimony.” Defense counsel also noted his understanding
that the prosecutors had dismissed the case against CW for
assaulting Brown two days earlier.4 The court denied the request
to reconsider its ruling after expressing concern about creating
a “mini trial[] within a trial.”
B. Trial, Conviction, Sentence, and New Trial Motion
At trial, CW testified that she and Sister planned to
meet Mother at the restaurant. CW testified that she and Sister
saw Brown and Wife as they entered, and that he came toward
them, grabbed them, and pushed them out of the restaurant’s
entrance, causing CW to fall. A fight ensued, during which CW
said Brown punched, kicked, stepped on, and shook her and
Sister, and she pushed, kicked, and punched Brown in defense of
herself and Sister. At one point, CW testified, Brown punched
her underneath the left jaw area. She denied punching Wife
during the altercation. Sister also testified that Brown
4
According to Brown’s notice of intent, CW was charged with two
counts of assault in the third degree for assaulting Brown and Wife shortly
after the melee at the restaurant that forms the basis of the present case.
According to defense counsel, the State dismissed CW’s charge for assault in
the third degree against Brown the day before the start of Brown’s trial,
leaving her with one outstanding charge of assault in the third degree at the
time she testified.
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grabbed her and CW as they entered the restaurant, that he
punched CW in the jaw and slammed Sister onto the ground in the
ensuing fight, and that she and CW hit Brown in self-defense.
Pursuant to the court’s pre-trial order, CW was
questioned about two prior incidents of misconduct. She
admitted to pleading guilty to third degree assault in the 2013
case involving her daughter, and to pleading guilty to
harassment in the 2010 case involving the threats against
Mother, although she denied threatening to kill her. She was
also questioned about an entry she made on Mother’s Facebook
page regarding Wife and the February 20, 2013 fight in which she
said “bahahahaha fckn silly girl gave birth. Now let’s see who
will laugh. Talk shit, get hit. I ain’t sca[r]e[d]. . . .
Let’s do it again, me and you round two. Oh wait, round one
wasn’t finished.”
Brown gave a different account of the events with
regard to who was the initial aggressor and whether he was the
cause of CW’s jaw injury. Brown testified that as his family
was leaving the restaurant, he saw CW and Sister near the door.
He saw that they were angry, and he tried to block them from
entering the restaurant and to push them backwards out the door.
He testified that CW slipped and fell numerous times, and that
the first time she fell, she hit her head on a table outside the
restaurant. At one point, Wife told him CW had hit her. He
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moved closer to Wife to protect her. He testified that CW and
Sister punched and scratched him, but he denied ever punching,
choking, slamming to the ground, or stomping on CW or Sister.
Wife testified that she first saw CW and Sister at the door of
the restaurant, punching and scratching Brown. She testified
that CW punched her in the face, and that at some point after CW
punched her, CW slipped and fell forward, hitting her head on a
table. Wife testified that Brown tried to hold back his
daughters, but that at no point during the incident did he
choke, pick up and slam to the ground, stomp on, or punch them.
Two eyewitnesses and a physician that treated CW after
the incident also testified. The security guard who was working
at a building directly behind the restaurant testified that he
saw Brown hit CW on the left side of her jaw. The security
guard was about 65 to 70 feet away at the time of the hit. He
testified that he did not see CW attack Brown in any way. The
second witness, the manager of the restaurant, testified that
around 1:30 p.m., “all of a sudden there was this big commotion”
in the restaurant, “and everybody started running outside[,]” so
he followed them out and saw Brown attacking CW. He testified
that he saw Brown punch CW “in the chin.” Both the security
guard and the manager testified that they did not see the
initial phase of the encounter between Brown and CW.
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An emergency room physician testified that she treated
CW shortly after the incident at the restaurant. She testified
that she conducted multiple CT scans and concluded that CW had
suffered a jawbone fracture, somewhere roughly in the left jaw
area. CW also had some loose teeth around the jawbone fracture
and some scrapes and swelling to her face. The physician did
not testify as to a possible cause of the fracture.
At the end of the State’s case, the court granted
Brown’s motion for acquittal on the second count of assault in
the third degree. The court found that Sister’s testimony was
insufficient to prove a prima facie case of third-degree assault
against her. The jury found Brown guilty on the first count of
assault in the second degree; he was sentenced to four years
probation.
Brown moved for a new trial on the basis of alleged
perjured testimony by Mother. During a hearing on the new trial
motion, defense counsel raised the exclusion of the criminal
charges against CW and her probation status as an additional
reason to grant a new trial. The circuit court denied the
motion.
C. Appeal
Brown appealed the judgment of conviction to the ICA
on the basis that the circuit court’s refusal to admit the
evidence of CW’s pending charges and probation status violated
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his constitutional right to confront the witnesses against him,
and that the court’s constitutional error was not harmless
beyond a reasonable doubt.
The ICA affirmed Brown’s conviction. State v. Brown,
No. CAAP-XX-XXXXXXX, 2017 WL 2829280, at *9 (App. June 30, 2017)
(mem.). The ICA held that even if the exclusion of the evidence
of the charges against CW and her probation status was improper,
the error was harmless. Id. at *8. It held that sufficient
evidence was presented at trial for the jury to assess CW’s
credibility, and that she had been subject to “extensive cross-
examination . . . on subjects including who was the first
aggressor, CW’s previous convictions for harassment and assault
against family members, and her relationship with Brown.” Id.
at *9. Although the ICA recognized that CW’s testimony was
important to the prosecution’s case, and that there was no other
way for the jury to know she had been charged or was on
probation at the time of trial, it nonetheless held that “[t]he
testimony of three witnesses other than CW to the assault
against her as well as the physician establishing the extent of
her injuries amounted to a very strong, if not overwhelming,
case.” Id.
Chief Judge Nakamura dissented. Id. (Nakamura, C.J.,
dissenting). He concluded that the pending charge against CW at
the time of her testimony and the fact that she was on probation
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“created a potential interest, motive, and bias for the CW to
testify falsely that was different in nature and character than
revealed by the other evidence permitted by the Circuit Court.”
Id. He identified that interest as “her own self-interest in
avoiding criminal punishment[.]” Id. He further reasoned that
“[t]he evidence excluded by the Circuit Court was the only
viable means for Brown to impeach the CW with her interest,
motive, and bias to shape her testimony to avoid her own
criminal punishment.” Id. Because the disinterested witnesses
to the assault did not observe the entire interaction between
Brown and CW, Chief Judge Nakamura was unable to conclude that
the decision to exclude the contested evidence was harmless
beyond a reasonable doubt. Id. at *10.
Brown filed an application for a writ of certiorari,
contending that the ICA erred in concluding that his right to
confrontation was not violated by the circuit court’s exclusion
of the evidence about CW.
II. STANDARD OF REVIEW
A trial court’s ruling on the question of whether
“proffered evidence is probative of bias, interest or motive is
reviewed under the right/wrong standard.” Acacio, 140 Hawaiʻi at
98, 398 P.3d at 687 (quoting State v. Balisbisana, 83 Hawaiʻi
109, 114, 924 P.2d 1215, 1220 (1996)).
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III. DISCUSSION
A. The trial court violated Brown’s right to confrontation by
barring cross-examination as to CW’s pending charges arising
from the same incident, as well as to her supervised probation
status resulting from an earlier assault conviction.
Article I, section 14 of the Hawaiʻi Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against the accused[.]” See also U.S. Const. amend. VI; Davis
v. Alaska, 415 U.S. 308, 316-317 (1974) (“[T]he exposure of a
witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross-
examination.”). “[T]he right to confront a witness is not
satisfied simply by any cross-examination, but instead, . . .
the cross-examination must be sufficient and meaningful.” State
v. Nofoa, 135 Hawaiʻi 220, 231, 349 P.3d 327, 338 (2015)
(emphases in original). The defendant’s right to sufficient and
meaningful cross-examination includes the opportunity to show
that a witness is unreliable due to bias.
[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of
the witness, and thereby “to expose to the jury the facts
from which jurors . . . could appropriately draw inferences
relating to the reliability of the witness.”
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting
Davis, 415 U.S. at 318). “The credibility of a witness may be
attacked by evidence of bias, interest, or motive[,]” HRE Rule
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609.1(a), and such evidence “is relevant if it has ‘any tendency
to support an inference of the witness’ disposition or tendency,
consciously or unconsciously, to slant testimony one way or the
other, from the straight and true.’” State v. Acker, 133 Hawaiʻi
253, 299, 327 P.3d 931, 977 (2014) (emphasis in original)
(quoting State v. Levell, 128 Hawaiʻi 34, 40, 282 P.3d 576, 582
(2012)).
Defense counsel was forbidden by the court’s order
from questioning CW on the charges against her arising from the
same incident and the court precluded the defense from
introducing evidence that she was on probation for the charge of
assault in the third degree. Both matters were relevant to her
bias or motive. “[G]iving 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.” Acacio, 140 Hawaiʻi at 101, 398 P.3d
at 690 (quoting Levell, 128 Hawaiʻi at 41, 282 P.3d at 583).
Exclusion of the criminal charges against CW and the
fact that CW was on probation deprived the jury of evidence that
she had an interest to shape her testimony against Brown to
avoid punishment and to prevent the possible revocation of her
probation. The jury thus lacked “sufficient information from
which to make an informed appraisal of the complainant’s motives
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and bias” as to her testimony. Levell, 128 Hawaiʻi at 40, 282
P.3d at 582 (brackets omitted) (quoting State v. Marcos, 106
Hawaiʻi 116, 121, 102 P.3d 360, 365 (2004)). In short, Brown was
not afforded the cross-examination to which he was
constitutionally entitled to confront CW about her motives or
bias favoring the prosecution.5
Thus, the circuit court erred when it concluded that
evidence that CW was arrested and charged with crimes related to
the same incident was irrelevant, confusing, and misleading;
similarly, the conclusion that evidence of CW’s probation had
“no probative value whatsoever” was error.
B. The trial court’s violation of Brown’s right to
confrontation was not harmless beyond a reasonable doubt.
Having held that Brown’s constitutional right was
violated, we next determine whether the constitutional error was
harmless beyond a reasonable doubt. In his opening brief, Brown
argued that the error was not harmless because, “except for the
testimonies of [Brown] and [Wife], there was no other evidence
5
We note that the State conceded at oral argument that “cross-
examination on CW’s probation status, and her charges -- assault charges
stemming from this incident should have been allowed. Not doing so was
error.” Oral Argument, State v. Brown (SCWC-XX-XXXXXXX) at 28:11-28:23,
http://oaoa.hawaii.gov/jud/oa/18/SCOA_020718_SCWC_15_354.mp3. However, the
State contended that this error was harmless because there was “independent
evidence to establish the elements of the offense in this case.” Oral
Argument at 28:27-28:32.
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with which to impeach [CW’s] testimony” regarding the cause of
her jawbone fracture.
A trial court’s denial of a defendant’s constitutional
right to impeach a witness for bias, motive, or interest is
subject to the harmless beyond a reasonable doubt standard.
Acacio, 140 Hawaiʻi at 98, 398 P.3d at 687. This standard is
applied by “examin[ing] the record and determin[ing] whether
there is a reasonable possibility that the error complained of
might have contributed to the conviction.” Id. Factors
determinative of whether a violation of the constitutional right
to impeach might have contributed to the conviction include:
“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 Hawaiʻi at 42,
282 P.3d at 584 (quoting Balisbisana, 83 Hawaiʻi at 117, 924 P.2d
at 1223).
Here, there is a reasonable possibility that the
circuit court’s constitutional error might have contributed to
Brown’s conviction. As an eyewitness to the entire event and
the complaining witness in the case, CW was the most important
witness for the prosecution. She gave a firsthand account of
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the entire incident, testifying about specific acts that met the
elements of assault. Brown was not permitted to cross-examine
CW about the criminal charges she faced and her probation status
that placed CW in immediate legal jeopardy and possibly gave the
State leverage over her testimony. Were she convicted of the
third degree assault charge against Wife and had her probation
from her previous third degree assault charge been revoked, CW
could have been sentenced to up to two years in prison. See HRS
§§ 707-712(2), 706-663, 706-625(3), (5) (2014). On the other
hand, CW may have believed that providing testimony at trial
that Brown was the first aggressor would lessen the likelihood
the prosecution would pursue the pending charge against her.6
Impeachment of such an important witness might have affected the
jury’s decision as to whether to credit Brown’s assertion of
self-defense. Thus, notwithstanding the evidence submitted by
the State, it cannot be concluded beyond a reasonable doubt that
the circuit court’s erroneous decision to preclude Brown from
impeaching CW for bias, interest, or motive did not contribute
to Brown’s conviction. The error was not harmless.
The Dissent concludes that the constitutional error
was rendered harmless beyond a reasonable doubt by the
corroborative testimony of the two eyewitnesses and the
6
Per defense counsel, one of the charges against CW had already
been dismissed shortly before the Brown’s trial.
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defense’s “otherwise extensive cross-examination of CW[.]”
Dissent at 11. Its analysis is similar to that of the ICA,
which found that the State presented “a very strong, if not
overwhelming, case” that Brown committed assault. Brown, 2017
WL 2829280, at *9. However, the ultimate question is whether
the erroneous exclusion of additional evidence could have
reasonably affected the jury’s verdict.
The two eyewitnesses testified that they did not
witness the entire interaction between Brown and CW.7 The
security guard testified that he was 65 to 70 feet away from the
fight, and the manager testified that the scene was a “big
commotion” and that he ran back inside at one point to call the
police. In contrast, Brown and Wife offered testimony that
directly contradicted CW’s explanation of the cause of injury,
contending that she slipped and hit her head on a table.
Evidence that cast doubt on CW’s credibility may have affected
the jury’s conclusion as to her description of the events. The
jury was deprived of strongly probative evidence relating to its
choice between the conflicting accounts of how CW’s injury was
caused. While CW was cross-examined about her relationship with
7
The Dissent notes that the security guard testified that he
observed “the events immediately preceding the punch” and that CW had not
attacked Brown. Dissent at 16 n.2. However, the security guard did not
witness the part of the fight during which, according to Brown’s account, CW
slipped and hit her head on a table.
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Brown and Wife and her propensity for violence, the court
prevented the defense from eliciting evidence about her interest
in avoiding future criminal prosecution and punishment. Nothing
in CW’s testimony indicated that the State had leverage over her
in the form of pending charges or the ability to revoke her
probation. And as the Dissent recognizes, “no other witness
testified as to CW’s misdemeanor probation status or that she
had also been charged with assault stemming from the same
incident.” Dissent at 11. Thus, no other evidence conveyed the
degree of CW’s possible interest in slanting or falsifying her
testimony to gain favor with the prosecution and to avoid
immediate legal jeopardy, and accordingly “the jury did not have
sufficient information from which to make an informed appraisal
of the CW’s motive.” Acacio, 140 Hawaiʻi at 101, 398 P.3d at
690. Notwithstanding the State’s evidence against Brown, the
conclusion cannot be reached beyond a reasonable doubt that the
unconstitutional exclusion of evidence about CW’s “significant
incentive to curry favor with the State[,]” Birano v. State, 143
Hawaiʻi 163, 192, 426 P.3d 387, 416 (2018), did not contribute to
the jury’s decision to convict.
IV. CONCLUSION
For the foregoing reasons, we vacate the July 31, 2017
judgment of the ICA and the March 25, 2015 Judgment of
Conviction and Probation Sentence of the Circuit Court of the
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First Circuit, and remand this case to the circuit court for
proceedings consistent herewith.
Jacquelyn T. Esser /s/ Sabrina S. McKenna
(William H. Jameson, Jr.
on the brief /s/ Richard W. Pollack
and application)
for Petitioner /s/ Michael D. Wilson
Sonja P. McCullen
for Respondent
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