Friday, August 10, 2012

Trial Court's Discretion in Limiting Cross Examination must Yield to Confrontation Clause

State v. Levell (HSC August 8, 2012)

Background. Donald Levell was charged with a single count of harassment (HRS § 711-1106(1)(a)) for allegedly shoving Malia Avila. Before trial, Levell moved for permission to cross-examine Avila about an incident in which she allegedly stole Levell's credit cards and used them after he had been arrested for harassment. Levell argued that the incident was a motive for Avila to fabricate the harassment accusation and to testify falsely at trial. The prosecution objected on the grounds that the incident was irrelevant. The district court denied the motion and refused to allow Levell cross-examine Avila about the credit card theft on the grounds that it was "not relevant to the elements of harassment[.]" And although it was evidence of a potential motive for Avila to fabricate her story, the evidence was highly prejudicial because the theft case was still being investigated, and thus, the cross-examination may cause Avila to violate her right against self-incrimination.

At trial, evidence showed that Levell met Avila while he was walking on the beach in Waikiki when he met Avila. Avila told Levell that she had no place to go, that her father was ill, and that she had just arrived from Las Vegas. Levell invited her to stay with him. Avila did not have a cell phone. Levell said that he had three phones and allowed her to use one of them.

Avila testified that on the night in question, she came home from work and saw Levell sitting there drinking. Levell approached her with a cell phone. He wanted to remove the SIM card in her phone and put it in the one he had. He transferred the card as Avila went to the bathroom. When she came back she asked for the card back, but Levell refused. She asked again and at that point, Levell stood up, walked up to her, and pushed her on her chest with open palms. Avila fell and hit her back and ribs on a rattan chair. There were no visible injuries. Avila got up and told Levell that she was calling the police. She went downstairs to the lobby and called the police from a security phone. She was not carrying her phone. The police arrived. When Levell went downstairs he was arrested. After he was taken away, Avila went back up to the apartment to gather her things and never returned to the apartment. She had not seen Levell until the day of trial.

On cross-examination, Avila admitted that when Levell took her phone, he gave her the other phone for her to use. Avila admitted that she did not want the other phone and was upset that he took the original phone away. Levell again renewed his motion to cross-examine her about the stolen credit cards, but the prosecution objected again and the district court sustained the objection.

Levell testified that when Avila came home, he had asked for her SIM card. Levell took the card, put it in another phone, called the new phone to make sure it was working, and gave Avila the working phone. Avila was upset. She asked Levell to return the original phone to her. Levell complied and Avila left the apartment with both phones. Levell went downstairs to find her and saw that she was talking to several police officers. He was arrested. Levell testified that he never had offensive physical contact with Avila or any other woman before.

On cross-examination, the prosecution asked why he was going downstairs. Levell explained that he wanted to find her to tell her that she could not stay in the apartment anymore. The prosecution asked if he was going to kick her out just because of the cell phone incident. Levell said no, he had noticed that she had been stealing things. The prosecution objected (presumably to its own question) and the district court sustained the objection.

The district court found Avila more credible than Levell and found Levell guilty as charged. The ICA affirmed.

The Right to Cross-Examine the Accuser Comes Before Trial Court's Discretion in Limiting Relevant Evidence. The trial court has the discretion to limit relevant evidence and the form of cross-examination. HRE Rule 403 and 611. However, that discretion is not unlimited. "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. Am. V. The confrontation clause affords the right "to demonstrate bias or motive of prosecution witnesses." State v. Balisbisana, 83 Hawai'i 109, 115, 924 P.2d 1215, 1221 (1996). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross examination." Id. According to the HSC, the trial court can limit cross-examination "only after the constitutionally required threshold level of inquiry has been afforded the defendant." Id. at 114, 924 P.2d at 1220.

Evidence of Bias, Interest, of Motive--no Matter how Weak--is Relevant. Moreover, "the credibility of a witness may be attacked by evidence of bias, interest, or motive." HRE Rule 609.1(a). This kind of evidence is always relevant. State v. Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987). The HSC noted that the inquiry is not the degree to which the evidence may show possible bias, interest, or motive. That goes to the weight. Adopting Professor Bowman's treatise, the HSC explained that "the relevant inquiry is whether such evidence has 'any tendency to support an inference of the witness' disposition or tendency, consciously or unconsciously, to slant testimony, one way of the other, from the straight and true.'" Addison M. Bowman, Hawai'i Rules of Evidence Manual § 609.1-[1][C] (2010-11 ed.). And once this evidence has been established, "it is error not to allow cross-examination to reveal possible bias." State v. Estrada, 69 Haw. at 220, 738 P.2d at 823.

Trial Court Erred in Refusing Levell to Cross-Examine Avila About Stolen Credit Cards. The HSC held that the trial court erred in concluding that the evidence about potentially stolen cards by Avila were irrelevant. It was clear that the evidence was intended to show bias, interest, or motive to fabricate her claims of harassment against Levell. It was also clear that Levell had a constitutional right to cross-examine Avila about possible fabrications.

. . . And the Error was not Harmless Beyond a Reasonable Doubt. Denial of the constitutional right to cross-examine is subject to harmless error review. Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223. A conviction will not be overturned if the court commits an error that is harmless beyond a reasonable doubt. State v. Veikoso, 125 Hawai'i 126, 135, 270 P.3d 997, 1006 (2011). The error cannot be considered harmless "if there is a reasonable possibility that [the] error might have contributed to the conviction." Id. To determine harmlessness, the court will review the entire record and consider a variety of factors, 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." Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223.

According to the HSC, Avila's testimony was "central" to the prosecution's case. The allegations of credit card theft were not cumulative to any testimony introduced at trial. Nothing directly corroborates Avila's testimony and, thus, evidence of bias, motive, or interest "would have been particularly helpful in assessing" Avila's credibility. And although cross examination was permitted, questions about the credit card were summarily excluded. The HSC held that the error was not harmless beyond a reasonable doubt. The case was remanded for a new trial.

1 comment:

Andrew said...

i hear about Rose Law from daily news, Donald Levell having lot's of work for it.
thanks


http://www.legalfindcanada.ca