State v. David (ICA December 15, 2014)
Background. Peter David was charged with second-degree murder of Santhony Albert and second-degree assault with a dangerous instrument of Torokas Kikku. During the opening statement, the prosecutor, Darrell Wong, told the jury that the three of them were at Kikku’s apartment in Waipahu. David and Albert were drinking and wrestling. At some point, David’s cousins point out that David had a cut on his nose. The prosecutor told the jury that at that point, David said “[n]obody does this to me, make me look like this, beat me up.”
After the opening statement, David’s counsel, Edward Aquino, objected that that statement was not made part of the discovery. The prosecutor responded that his understanding of discovery rules required only disclosure of written or recorded statements by the defendant. The circuit court—without correcting the prosecutor’s understanding of the rules—ruled that it was not going to preclude the statement, but give David ample time to prepare if necessary. The prosecutor identified Kikku as the witness who would testify that David made the statement. The circuit court ordered the prosecutor to make Kikku available for the defense counsel to interview. David declined, but requested a further opportunity to interview Kikku and explore possible alternatives.
Trial began and before Kikku testified, the circuit court asked David’s counsel if he had time to prepare for the statement. Kikku revealed further that she told the prosecutors about David’s statement on two separate occasions—once in July and again in three days before trial. David again renewed his claim of unfair surprise and asked that the statement be excluded. The request was again denied.
In the middle of Kikku’s testimony, the parties held a bench conference where the prosecutor proffered that Kikku would say that David told Albert, “I want the beer that you have in your car.” Albert said, “no, you can’t have the beer” and David was upset. David’s counsel objected to this brand new statement that had not been disclosed by the prosecution. David moved for a mistrial. The circuit court ruled that the statement should have been disclosed, but there was other evidence established that David and Albert were upset with each other and that they had been drinking alcohol. The circuit court denied the motion and ruled that the prosecution’s failure to disclose “can be cured by a continuance[.]” Kikku testified about the statement regarding the beer and about the statement during the opening.
The prosecution later elicited evidence that Albert and David got into a fight and that Albet had been stabbed to death. There was also some evidence that David threw rocks at Kikku and she had scratches on her arms. After the prosecution rested, David testified. He said that he was invited to the party in Waipahu and that he was not fighting with Albert in the parking lot when the police arrived. He denied talking to the police in the parking lot.
The prosecution then sought to call rebuttal witnesses that would impeach David’s testimony as to what he said to the police in the parking lot and impeach the invitation to the party. Over David’s objection, the circuit court allowed the witnesses to testify.
David was found guilty of manslaughter and assault in the second degree. At the sentencing hearing, the prosecutor highlighted the fact that David was from Chuuk, Micronesia and said “we’re talking Micronesians who get inebriated on alcohol, then become violent with their own family members, their own friends and they involve knives.” The prosecutor urged a 20-year sentence in order to “send a message to the Micronesian community” that this behavior “is not acceptable in the laws of the United States and the State of Hawaii.” The prosecutor prefaced these comments by saying he “by no means mean[t] to be a racist about anything.”
The circuit court sentenced David to prison for 20 years.
Discovery Violations and the Remedies for them. The ICA made it clear that the prosecutor violated the discovery rules. The prosecution is required to disclose to the defense, “any written or recorded statements and the substance of any oral statements made by the defendant[.]” HRPP Rule 16(b)(1)(ii). The duty to disclose continues and the prosecution must disclose materials when it learns about its existence. HRPP Rule 16(e)(2). The prosecutor’s failure to disclose David’s statements about his nose and the beer violated Rule 16.
Once a violation is found, the trial court has discretion in fashioning a remedy. When a party has failed to comply with the discovery rules, “the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances.” When exercising this discretion, the trial court “should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstance.” State v. Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (1994). The court must look to less drastic measures to rectify the prejudice before declaring a mistrial. Id.
In this case, the ICA held that while the prosecutor clearly violated Rule 16 by not disclosing these statements, its failure to disclose did not warrant dismissal and the chance to continue the case was an adequate remedy.
Prosecution can call Rebuttal Witnesses to Impeach Defendant’s Testimony. There are three basic rules when it comes to rebuttal evidence:
First, as a general rule, a party is bound to give all available evidence in support of an issue in the first instance it is raised at trial and will not be permitted to hold back evidence confirmatory of his or her case and then offer it on rebuttal.
Second, this general rule does not necessarily apply where the evidence sought to be presented on rebuttal is “negative of a potential defense,” even if the evidence also confirmatory of an affirmative position upon which the party seeking to present the evidence bears the burden of proof.
Third, although a plaintiff is not required to call, during his or her case-in-chief, every conceivable witness who might contradict a potential defense witness, it is also generally true that a party cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief, even though it tends to contradict the adverse party’s evidence, it may and generally should decline to admit the evidence.
State v. Duncan, 101 Hawaii 269, 276, 67 P.3d 768, 775 (2003). So because rebuttal evidence is not a matter of right, the trial court has the discretion to permit rebuttal evidence. Id.
Here, the prosecution sought to call rebuttal witnesses that contradicted or impeached David’s testimony on two points: that he had been invited to Waipahu and that he did not speak to the police. The ICA concluded that this rebuttal evidence went to credibility issues of the witnesses, including David, and it was not an abuse of discretion in allowing them to testify after David.
Sending a Message to the “Micronesian Community.” The ICA made it pretty clear: “a defendant’s race, ethnicity, or national origin cannot be used as a justification for the imposition of a harsher penalty on the defendant.” Similarly, an “appeal to racial prejudice threatens our multicultural society and constitutional values. We must therefore recognize that our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” State v. Rogan, 91 Hawaii 405, 414-15, 984 P.2d 1231, 1240-41 (1999). The ICA held that the prosecutor’s sentencing remarks were “highly improper.” He emphasized David’s ethnicity and used negative stereotypes about Micronesians and urged the sentencing court to make an example of him for the rest of the Micronesian community. These comments were so inflammatory that the sentencing court should have taken to ensure that its sentence was not in anyway the result of the comments. And even though the court did not accept or rely on the prosecutor’s representations about Micronesians, “justice must satisfy the appearance of justice[.]” Offutt v. United States, 348 U.S. 11, 14 (1954). And so the ICA vacated the judgment and remanded the case to sentencing before a different judge.