Looking Beyond the Letter of the Law to Find Reliability


State v. Austin (HSC June 29, 2018) Part I. For Part II—the ProsecutorialMisconduct Analysis—Click HERE.
Background. Edith Skinner was an 89-year-old woman, who enjoyed baking, playing bridge, and swimming at the Elks Club in Honolulu. She lived alone at an apartment in Waikiki, which was generally restricted to low-income and elderly tenants. Skinner’s body on July 25, 1989. Her body was lying on top of the bed. The bed was stripped of its covers, pillows, sheets, and comforters. There were no signs of a struggle within the apartment.

The doctor performing the autopsy on Skinner’s body concluded that Skinner suffocated as a result of manual strangulation. The doctor also recovered black or dark-colored pubic hair, which stood out from Skinner’s light-colored hair. The hair was preserved as evidence. Semen was also discovered in Skinner’s vagina.

A crime bulletin was issued without a composite sketch due to its inaccuracies. In the meantime, the pubic hair was sent to an FBI laboratory. There, it was concluded that the hairs were “brown Caucasian pubic hairs” dissimilar from Skinner’s.

Detectives interviewed neighbors. Det. Kenneth Ikenaga recorded a statement from Anne Wanous, who was visiting her mother at her apartment on the same floor as Skinner. Wanous said that she woke up at around 4:00 or 5:00 that morning to smoke a cigarette right outside the apartment door. She heard a noise and looked toward Skinner’s apartment. She saw a “black” man carrying two stuffed pillow cases leaving Skinner’s apartment. She could not make out his face, but said that his arms were black. When he turned toward her, he saw “the whites of his eyes” but saw nothing else. It was too dark. She guessed that his ethnicity was “black” but she could not be sure. Wanous also drew sketches of the person on a paper bag. She told the police she was guided by a “feeling.” Wanous met with a police sketch artist the next day, but could not assist in making a composite drawing of the person’s face. She could only confirm that the sketch matched her description of the suspect's hair, eyes, and facial shape. Det. Ikenaga collected more statements. One was a written statement from Wanous’s sister, Orchid Ah Loy. Ah Loy wrote that her other sister told her that Wanous said she saw a black male leave Skinner’s apartment either on July 24, 1989 or July 25, 1989 at around 5:30 a.m. He was carrying a pillow case. Det. Ikenaga also recorded a statement from Wanous’s niece in which she (the niece) said that Wanous told her “a black male carrying pillow cases” left the apartment at around 5:30 a.m. on July 25, 1989.

The case went cold after that. Wanous died in 1991. In 2005, the fluid found on Skinner’s body was tested for its DNA and compared with a database. It found a match with Gerald Austin, a white male. Police got a warrant to search Austin’s body and took saliva samples from his mouth. The fluid found on Skinner was confirmed to match Austin’s DNA.

Austin spoke to the police and said that he was familiar with the apartment complex because his grandmother used to live there and he would visit. He did not recognize Edith Skinner by name or by a picture of her. He denied ever going into her apartment, sexually assaulting Skinner, and killing Skinner. He could not remember where he was on July 25, 1989. The police interrogation took place in 2012.

Austin was indicted with murder in the second degree. Prior to trial, the prosecution filed a motion in limine seeking the exclusion of Wanous’s many statements about a “black man” leaving the apartment—particularly, the recorded statement by Det. Ikehara, her sketches, the composite drawing, statements to her niece, and Ah Loy’s written statement. Austin argued that the statements were admissible because they met hearsay exceptions and he had a constitutional right to defend the charges against him. Austin filed a motion in limine seeking the preclude the use of the term “victim” at trial. The circuit court ruled in favor of the prosecution: it granted its motions to preclude the use of Wanous’s statements and it denied Austin’s motion to preclude the use of the term “victim.”

At trial, Austin testified that he was 29 years old in 1989. He testified that he was visiting his grandmother when he met an elderly woman, went to her apartment, and had consensual sex with her. He never made the connection that that woman was later found dead. Austin was found guilty as charged. The circuit court refused to provide any instructions on a lesser-included offense of manslaughter. Austin filed a motion for new trial based on the prosecutor’s arguments. The motion was denied.

The circuit court sentenced Austin to life imprisonment without the possibility of parole pursuant to HRS §§ 706-661 and 706-662(5). Austin appealed. The case was transferred directly to the HSC.

When can you call the Victim a “Victim?” “[U]nless there are good reasons found by the court for permitting otherwise, the court should instruct all counsel that they and their witnesses must refrain from using the term” victim. State v. Mundon, 129 Hawaii 1, 26, 292 P.3d 205, 230 (2002). That’s because it “is incompatible with the presumption of innocence for the prosecution to refer to the complaining witness as the ‘victim’ just as it is to refer to the defendant as a ‘criminal.’” Id.

The HSC rejected Austin’s argument that the circuit court erred in allowing the prosecutor to refer to Skinner as a victim at trial. The HSC distinguished Mundon because in that case, the complainant testified at trial. Referring to the complaining witness as a “victim,” according to the HSC, “connoted a predetermination that the witnesses had been wronged and that the crimes occurred as the witnesses had testified[.]” That is not the situation here in which Skinner was killed, did not accuse Austin of committing the crime, and obviously did not testify. For the HSC, the key issue at this trial was the identity of the perpetrator and not whether an offense occurred. And so the circuit court did not err in allowing the term to be used.

But the HSC was cautious still. In a footnote, the HSC observed that although the circuit court did not abuse its discretion in allowing the prosecutor to use the term (because there was no dispute that Skinner had been murdered), nothing prevents courts in the future from using the term “‘deceased’ in lieu of the word ‘victim.’”

What if it Wasn’t Murder? This distinction has yet to be tested strongly. Does this mean that whenever the defense is identity of the perpetrator—no matter what the offense is—the prosecution can use the term? What if the offense was not murder the complainant testified? Can the prosecutor call him or her a victim so long as the defense is that the accused was not the one who did it? Time will tell.

The Written Statement is not “Trustworthy” even Though it is a Statement of Recent Perception. Austin argued that Wanous’ statements to her niece and sisters were statements of recent perception admissible under HRE Rule 804(b)(5):

Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant’s recollection was clear[.]

Examining the commentary to the rule, the HSC noted that this hearsay exception is the codification of Hew v. Aruda, 51 Haw. 451, 462 P.2d 476 (1969). In that case, which predates the Hawaii Rules of Evidence, the HSC examined a written contract made by a deceased partner. Id. at 454, 462 P.2d at 478-479. The HSC fashioned the rule that would later become HRE Rule 804(b)(5):

We hold that . . . statements [are] not excluded by the hearsay rule if the declarant is unavailable as a witness and the court finds that the statement was made in good faith, upon the personal knowledge of the declarant, and while his recollection was clear, unless other circumstances were present including a clear lack of trustworthiness. This is a very reasonable limitation of trustworthiness is necessary since the party against whom the statement is offered has no opportunity to test the hearsay by cross-examination.

Id. at 456-457, 462 P.2d at 480. “A clear lack of trustworthiness might be shown by a statement made in response to the instigation of a person engaged in investigating, litigating, or settling a claim, or in contemplation of pending or anticipated litigation in which he (the declarant) was interested.” Id. at 457 n. 1, 462 P.2d at 480 n. 1.

The HSC agreed that the Ah Loy letter met the criteria outlined in HRE Rule 804(b)(5). It was not written in response to an investigation or litigation. Wanous is explaining a recently-perceived event that looks like it was made in good faith. It even looked like Wanous made the statement while her recollection was clear.

But the problem for the HSC was that Hew required more than the rule. It required a finding of “trustworthiness.” And the HSC held that that lack of trustworthiness rendered it inadmissible. Wanous was saw this “black man” for only a few seconds in dim light before sunrise. She saw nothing but the whites of his eyes. She decided to sketch the person by mere intuition and not recollection. Moreover, she could not identify his face. This was enough for the HSC to hold that because it would have been inadmissible under Hew, the case in which the rule codified, the circuit court did not abuse its discretion in excluding the written statement. See State v. Haili, 103 Hawaii 89, 100, 79 P.3d 1263, 1274 (2003) (determinations of trustworthiness under HRE Rules 804(b)(5) and (b)(8) reviewed for abuse of discretion).

The Recorded Statement is also Untrustworthy . . . The HSC also held that the recorded statement of the police officer lacks trustworthiness pursuant to Hew for the same reasons as the letter. And so excluding it from trial was not an abuse of discretion.

Does the Codification of a Holding Allow us to Disregard the Language of the Statute? The HSC appears to have applied the holding in Hew, not the plain language of HRE Rule 804(b)(5). Our rules of evidence are statutes. HRS § 626-1. The most basic rule of statutory construction is to give meaning to the plain and obvious language of the statute. State v. Haugen, 104 Hawaii 71, 76, 85 P.3d 178, 183 (2004).

Ten years ago, the HSC rejected the common-law res gestae doctrine. State v. Fetelee, 117 Hawaii 53, 79, 175 P.3d 709, 735 (2008). The HSC then noted that the HRE was intended to be the “singular and primary source where all evidentiary rules are rationally organized[.]” Id. at 79, 175 P.3d at 735. It “retired” the res gestae doctrine and was convinced by other courts and commentators “that the better practice is to analyze admissibility under the specific rule of evidence that applies to the particular factual situation presented.” Id. at 81, 175 P.3d at 737.

And yet, that did not seem to happen here. It looked like Ah Loy’s letter met each and every element of HRE Rule 804(b)(5), but was out of step with the holding in Hew. The HSC took Hew over the language of the rule here. Does this invite us to elevate the holding of the case itself over the plain and obvious meaning of the statute that expressly “codifies” the case? Does that do damage to our rules of statutory construction?

Interestingly enough, Justice Nakayama, who wrote for the majority in this analysis, concurred in Fetelee. She wrote separately because she believed that the common law may coexist at times with the superseding HRE. See State v. Fetelee, 117 Hawaii at 90, 175 P.3d at 746 (Nakayama, J., concurring) (“Although I join the majority in holding that the HRE supersedes the res gestae doctrine, I do not believe that the common law is antiquated.”).

Still not Admissible Under the Catchall Exception. The HSC also rejected Austin’s argument that Wanous’s statements should have come in under the catchall exception to the hearsay rule:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

HRE Rule 804(b)(8). The HSC reached a similar result. The circuit court did not abuse its discretion in finding that the Wanous statements lacked sufficient trustworthiness to present at trial.

Due Process did not Require Admission of the Statement. The Due Process Clause and the right to a fundamentally fair trial may compel the admission of statements normally excluded by the hearsay rule. The defendant must show (1) the statement is “critical to [his or her] defense” and (2) the statement “bore persuasive assurances of trustworthiness.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The parties here conceded that Wanous’s statements were critical to the defense. However, the issue hinged on the assurances of trustworthiness. The HSC distinguished the facts in Chambers with this one and particularly noted that unlike the declarant in Chambers, Wanous was unavailable to testify. This mattered. See Christian v. Frank, 595 F.3d 1076, 1085 (9th Cir. 2010). The HSC in short held that the second prong was not met.

No Error in Refusing to Provide Lesser-Included Instruction. Jury “instructions on lesser-included offenses must be given where there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” State v. Flores, 131 Hawaii 43, 51, 314 P.3d 120, 128 (2013). Failure to provide the lesser-included offense “warrants vacation of the defendant’s conviction.” Id. at 58, 314 P.3d at 135. There is no dispute that for murder in the second degree there may be lesser-included offenses of assault in the first, second, and third degrees. But what about reckless killings?

“A person commits the offense of manslaughter if . . . [the person] recklessly causes the death of another person.” HRS § 707-702(1)(a). Assault in the first degree, however, requires proof of intentionally or knowingly causing serious bodily injury. The HSC held that the evidence in this case did not warrant an instruction on manslaughter. Austin’s defense was that he had sex with Skinner, but did not kill her. He denied strangling her. There was no evidence that while having sex with Skinner he recklessly caused her death.

Life Without Parole is Unconstitutional Here. “No State shall . . . pass any . . . ex post facto Law.” U.S. Const. Art. I, Sec. 10. This provision “forbids the application of any new punitive measure to a crime already committed, to the detriment or material disadvantage of the wrongdoer.” Lindsey v. Washington, 301 U.S. 397, 401 (1937). Moreover, “[n]o law has any retroactive operation, unless otherwise expressed or obviously intended.” HRS § 1-3.

The HSC agreed that Austin’s sentence was unconstitutional. The circuit court sentenced Austin to life without parole pursuant to HRS § 706-661, the extended sentencing statute. The statute, however, did not exist in 1989, on the date of the offense. The provision under which he was sentenced was not added until 1999 and there is no indication by the legislature that it was supposed to apply retroactively. The HSC vacated the judgment and remanded for sentencing in accordance with the statutes applicable at the time.

A Splintered Court. The HSC was broken up on these issues. Justice Nakayama wrote most of the majority’s opinion. The Chief Justice agreed with her in all aspects of the opinion. Justice McKenna joined on every part except for her analysis on whether the prosecutor’s argument that the defendant lied is misconduct. For that issue, she joined Justice Pollack’s concurrence. Justice Wilson dissented to both Justice Nakayama’s majority and part of Justice Pollack’s concurrence. He wrote separately because while he agreed with Justice Pollack and Justice McKenna that it was misconduct, he also believed that the error was not harmless beyond a reasonable doubt and would have ordered a new trial.

What’s missing, however, is the rest of Justice Pollack’s views on the other issues of the case such as the hearsay issue and Chambers v. Mississippi. He does not sign Justice Nakayama’s opinion and he does not address other issues in the opinion itself in his concurrence.

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