Saturday, October 29, 2011

Confrontation Clause is not a Right to Present Misleading Evidence

State v. Brooks (ICA October 21, 2011)

Background. Ted Arifuku was found dead in his apartment with his hands tied behind his back and bruises and cuts all over his body. The medical examiner concluded that Arifuku had been strangled to death. The police searched his apartment and found a homemade utility knife and a blue cap that was on the bed, methamphetamine, and marijuana. Soon after the discovery of the body, police received information that the blue cap belonged to Curtis Ray Brooks, who was homeless and living in a van off of Date Street. Police questioned Brooks and Brooks implicated Sistine Rangamar. Rangamar was then arrested and provided a lengthy statement to the police.

Rangamar's Statement. Rangamar told the police that Arifuku was a drug dealer and that Brooks planned his death. Rangamar said that Brooks instructed him to visit Arifuku in his apartment while Brooks waited nearby. Rangamar was supposed to subdue Arifuku, tie him up, and let Brooks in through a back door. Rangamar said that Brooks gave him the knife and the blue cap. The next morning, Rangamar went to Arifuku's apartment and knocked on the door. Arifuku answered and Rangamar went inside to buy a "twenty." Arifuku got suspicious and tried to get him out of the apartment. They struggled. Eventually, Rangamar tied up Arifuku, but he lost consciousness. When he came to, he saw that Arifuku was still breathing. Rangamar knocked on the back door, but Brooks was not there. Rangamar took some money and left. Later that day he met up with Brooks, who was mad at him for leaving him hanging. Rangamar later learned that Arifuku died and denied killing him.

The Trial. Both Brooks and Rangamar were charged with kidnapping, robbery, and murder. Before trial, however, Rangamar killed himself. Brooks filed a motion in limine allowing him to introduce certain portions of the Rangamar statement pursuant to HRE Rule 804(b)(3) (statements against Rangamar's penal interest). Brooks' portions included Rangamar saying that he tied up and assaulted Arifuku, and that he brought Brooks' cap and the homemade knife to the apartment. In all, there were eight portions proffered by Brooks.

The prosecution objected, and wanted to submit other portions implicating Brooks based on the rule of completeness. HRE Rule 106. Brooks responded that the prosecution's use of the responsive portions violated his rights under the Confrontation Clause. The circuit court ruled that the Rangamar statement was "testimonial" under the Confrontation Clause, and could not be used at trial for the prosecution's case in chief. However, if the statements proffered by Brooks were used in his defense, almost all of the portions would violate the rule of completeness. Thus, if Brooks did open that door and use those portions, the prosecution would be permitted to use the responsive portions.

Brooks used the portions at trial, the prosecution responded with its portions. The jury found Brooks guilty of manslaughter, kidnapping, and robbery. The jury also merged the manslaughter with robbery and kidnapping with robbery. The prosecution elected to dismiss the robbery charge. The circuit court sentenced Brooks to 20 years for the manslaughter and 20 years for the kidnapping, running consecutively. Brooks appealed.

The Right to Preclude "Testimonial" Hearsay Statements can be Waived. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused." Haw. Const. Art. I, Sec. 14; see also U.S. Const. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Testimonial hearsay statements cannot be used in criminal prosecution unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant about the statement. Crawford v. Washington, 541 U.S. 36, 68 (2004); State v. Fields, 115 Hawai'i 503, 513, 516, 168 P.3d 955, 965, 968 (2007).

This "right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); State v. El'ayache, 62 Haw. 646, 649, 618 P.2d 1142, 1144 (1980). Similarly, the criminal defendant's right to present testimony may be limited by evidentiary rules that further legitimate interests in the criminal trial process. Michigan v. Lucas, 500 U.S. 145, 149 (1991); State v. Pond, 118 Hawai'i 452, 463, 193 P.3d 368, 379 (2008). Finally, the defense can waive the right to confront witnesses when the waiver is "a matter of trial tactics and procedure." Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981).

The Rule of Completeness Allows the Prosecution to Rebut Misleading Portions of a Statement Offered by the Defense. "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." HRE Rule 106. The prosecution argued that the Brooks' portions were so misleading without the rest of the statement, that it would unfairly mislead the jury. Brooks did not dispute that on appeal. Instead, he argued that the Confrontation Clause prohibited the prosecution from using those portions and that the rule of completeness cannot trump his constitutional rights.

The ICA turned to courts from other jurisdictions that have examined this particular issue and disagreed with Brooks. Arizona v. Prasertphong, 114 P.3d 828, 829-30 (Ariz. 2005) (defendant "forfeited his Confrontation Clause right not have [the] statement admitted against him when [the defendant] himself introduced portions of that statement"); People v. Parrish, 152 Cal. App. 4th 263, 276 (Cal. App. 2007), U.S. v. Moussaoui, 382 F.3d 453, 481-82, (4th Cir. 2004), South Dakota v. Sellalla, 744 N.W.2d 802, 818 (S.D. 2008).

Brooks' Choice: Waive Confrontation Rights or Decline Using the Statement. The ICA held that the circuit court did no err in allowing the prosecution to introduce its portions of the Rangamar statement in response to Brooks' introduction of his portions. The circuit court concluded that Brooks' portions, standing alone, created "the danger of unfair prejudice . . . or misleading the jury[.]" HRE Rule 403. Thus, Brooks had a choice: offer his portions of Rangamar's statement and allow the prosecution to rebut the portions that would mislead the jury, or not offer the statement at all. Brooks argued that under Crawford, he did not have to make this choice. The ICA affirmed the circuit court and held that "Crawford does not bar the admission of evidence pursuant to the rule of completeness." Brooks, according to the ICA, cannot introduce his portions of the statement "and, at the same time, use Crawford to preclude the State from introducing other portions of Rangamar's statement that were necessary to prevent the jury being misled." The ICA explained that the right of confrontation "cannot be used to distort and subvert the truth-seeking function of the criminal trial process[.]"

Rejecting the Cromer. The ICA also rejected the lone case cited by Brooks. In United States v. Cromer, 389 F.3d 662, 678-79 (6th Cir. 2004), the federal appeals court held that the government could not introduce testimonial hearsay evidence in response to the defendant's introduction of evidence. The Sixth Circuit reasoned the Crawford made it clear that the Confrontation Clause was not dependent on the law of evidence. Id. The ICA simply explained that it was "not persuaded by the reasoning in Cromer and decline[d] to follow it." It also cited other courts that were not convinced by Cromer. State v. Birth, 158 P.3d 345, 354-55 (Kan. Ct. App. 2007); People v. Ko, 789 N.Y.S.2d 43, 45 (N.Y. App. Div. 2005).

Crawford and the Rules of Evidence. Before 2004, the Confrontation Clause did not preclude the prosecution from using evidence as long as it has an "indicia of reliability," which meant it had to fall within a "firmly rooted hearsay exception" or have "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980). The SCOTUS rejected this test in Crawford v. Washington. Justice Scalia, writing for the court, explained that "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Crawford, 541 U.S. at 51. Cromer, decided around eight months after Crawford, must have taken this language to heart and refused to allow the prosecution to introduce testimonial hearsay even if it gave the jury a distorted picture. But since then, courts--including the ICA--appear to be moving away from this strong language. The SCOTUS has yet to determine whether we can move away at all.

Can Crawford Prohibit Rebuttal Evidence? The ICA joined other courts that allow the prosecution to use testimonial hearsay that would normally be in violation of the Confrontation Clause when it is used to rebut the defense. But how broad is this exception to Crawford? The answer could come from the circuit court again. The circuit court allowed the prosecution to rebut seven out of the eight portions proffered by Brooks. The lone exception was Rangamar's statement that he took Brooks' blue cap to Arifuku's apartment. This statement was not misleading to the jury and there was no need to rebut it under HRE Rule 106 and HRE Rule 403. So did that mean, that the Confrontation Clause prevented the prosecution from presenting rebuttal evidence?

For example, let's say that the defendant has an alibi witness who will testify, and the prosecution wants to use a statement in violation of the Confrontation Clause to rebut the testimony. Can it? Or has the defendant waived his or her right to confront? HRE Rule 106 would not apply because the evidence is not from the same statement. What about HRE Rule 403? Would it be misleading to have the jury hear just the alibi witness and not the statement? If so, could the prosecution use the Crawford-offending evidence? Is this the kind of situation Crawford was intended to correct? Only time will tell.

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