Wednesday, May 13, 2009

Botched Evidence and Interpretation of the Self-Defense Statute Leads to Reversal of Murder Conviction

State v. Kekona (ICA May 11, 2009)

Background.  Kekona was indicted for, among other things, attempted murder in the 2d degree against Ah Loo.  Before trial, the State filed a motion in limine that would prohibit any evidence that Ah Loo physically abused Kekona's girlfriend, Tammy Antonio, before the shooting.  The State argued that the evidence was irrelevant and that Kekona failed to provide adequate notice pursuant to HRE Rule 404(b).  The motion was granted to show Ah Loo's motive for ramming Antonio's car.  At the trial, the State presented evidence showing that when the police arrived at the scene--a parking lot in Waimalu--Antonio was frantic and told the police that Ah Loo was ramming her car and that she shot at him.  The police spoke with Ah Loo and saw that Ah Loo's windshield had a hole that looked like a bullet hole.  The police arrested Antonio and started looking for Kekona.  Days later, they found him, but there was no gun.  After the State rested, Kekona made an offer of proof that Ah Loo's daughters would testify that they saw their father strike Antonio on occasions before the shooting incident.  The circuit court denied Kekona's request such proof.  Kekona testified that Ah Loo punched and chocked Antonio prior to the incident.  Kekona also presented evidence that Antonio picked him up with two others named Kaualoku and Denton.  The four of them were eventually chased by Ah Loo and Ah Loo rammed his van into Antonio's car at the parking lot.  After Ah Loo rammed the car, Kekona stepped out of the car with a gun and faced Ah Loo.  According to Kekona, Ah Loo drove the van towards him and the car.  That was when Kekona fired the gun.

In the State's closing argument, the prosecutor told the jury that no evidence supported Kekona's assertion that Ah Loo beat Antonio.  Kekona moved for mistrial, which was denied.  The prosecutor also suggested that Kekona's defense of others could not stand because because Kaualoku and Denton did not exist.  Again Kekona moved for mistrial and again the motion was denied.  As for self-defense, the prosecutor told the jury that self-defense required Kekona to admit that he or she committed the crime and intended to do it, but had an excuse.  The prosecutor urged the jurors that self-defense did not apply because Kekona admitted that he was not trying to kill anyone.  Kekona objected that the prosecutor's statement was a misstatement of the law.  The objection was overruled.  The prosecutor then argued that if this was a case of self-defense, then Kekona would not have needed to run away, hide himself and the gun, and have Antonio lie for him.  Kekona objected that there was no evidence supporting the argument that Antonio lied.  On rebuttal, the prosecutor pointed out that Kekona failed to confront Ah Loo that he purportedly abused Antonio.  Kekona was found guilty as charged.

Evidence of the Victim's Character was Admissible to show that he was the Initial Aggressor.  Relevant evidence is any evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  HRE Rule 401.  Furthermore, evidence "of a pertinent trait of character of the victim of the crime offered by an accused" is admissible.  HRE Rule 404(a)(2).  According to the ICA, it was unclear whether Kekona knew about Ah Loo's abuse of Antonio when he shot at Ah Loo's van.  There was also conflicting evidence as to whether Ah Loo was the initial aggressor in the parking lot.  The ICA concluded that Ah Loo's prior abuse was circumstantial evidence of the likelihood that Ah Loo was the initial aggressor and was relevant evidence.

404(b) Notice is not a bar.  "In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial . . . of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b).   The purpose of HRE Rule 404(b) notice "is to reduce surprise and promote early resolution of admissibility questions."  State v. Pond, 117 Hawai'i 336, 350, 181 P.3d 415, 429 (App. 2007), vacated on other grounds by State v. Pond, 118 Hawai'i 452, 193 P.3d 368 (2008).  The sufficiency of "reasonable notice" is evaluated on a case-by-case basis.  Id. at 349-50, 181 P.3d at 428-29.  The ICA did not find HRE Rule 404(b) notice as a bar to the admission of the evidence.  The circuit court did not rely on the failure to comply with the notice requirement as a basis for granting the State's motion.  Furthermore, the State's motion in limine met the purpose of HRE Rule 404(b) notice by seeking to resolve the admissibility of the evidence at issue.  The ICA also noted that the State already had notice that Kekona intended to introduce the evidence by filing the motion.

Self-Defense Claims do not Require the Underlying Criminal Intent.  There was no question that Kekona's use of the gun was deadly force.  HRS § 703-300.  But Kekona raised self defense.  The State argued that because Kekona used deadly force, he must first have the intent to kill before he can rely on the self-defense claim.  According to the ICA, that argument was "a bit circular and confusing, and incorrect."  Self defense is not an affirmative one so the State must "disprove the facts that have been introduced or . . . prove facts" negating the defense beyond a reasonable doubt.  State v. Van Dyke, 101 Hawai'i 377, 386, 69 P.3d 88, 97 (2003).

The ICA held that there were three crucial issues for the jury to determine: (1) whether the victim used "unlawful force";  (2) whether the defendant believed that the use of deadly force was "immediately necessary for the purpose of protecting himself against the use of unlawful force"; and (3) whether the defendant reasonably believed that deadly force was necessary to protect himself or herself against death or serious bodily injury.  See HRS § 703-304.  According to the ICA, the fact that Kekona did not intend to kill had nothing to do with the applicability of the self-defense claim.

Applying the Self-Defense Statute.  According to the ICA, the application of the statute did not depend on the underlying offense.  As the ICA explained, the burden still remains on the State to show beyond a reasonable doubt that the defendant's use of force--in this case deadly force--was not justified.  HRS § 703-304 can apply to a number of different offenses.  The ICA stuck to the language of the statute and did not require an additional element of proof--that the actor must first have the requisite intent for the underlying offense.

But is it Reversible Error?  Yes.  When the prosecutor misstates the law at closing, the appellate court reviews the error under the harmless-beyond-a-reasonable-doubt standard.  State v. Espiritu, 117 Hawai'i 127, 140, 176 P.3d 885, 898 (2008).  Under that standard, the issue is "whether there is a reasonable possibility that the error complained of might have contributed to the conviction."  Id. at 141, 176 P.3d at 899.  According to the ICA, the prosecutor clearly misstated the law of self defense by requiring that the defendant must have the intent to kill in order for self defense to apply.  The misstatement was not corrected by the circuit court.  The ICA held that the misstatement of the law was not harmless error.

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