HSC Still Hasn't Opened the Door to the Open-the-Door Doctrine

 State v. Feliciano (HSC June 29, 2020)

Background. Allan Feliciano was charged with abuse of a family household member in violation of HRS § 709-906. The charge stems from an incident in 2017. The complainant was his wife of five years. Before trial, the prosecution filed notice of its intention to present evidence that in 2016, one year before the alleged abuse, Feliciano got into an argument with his wife and pushed her out of a chair. The prosecution argued it anticipated Feliciano would present evidence that the complainant was using cannabis heavily and this evidence was necessary to show why she started using medical cannabis. The prosecution also argued it would rebut self-defense. Feliciano opposed. At the hearing on a motion in limine, the family court, with the Hon. Judge Ronald Ibarra presiding, ruled that the evidence would only come in if Feliciano “opened the door,” that is, brought up the complainant’s cannabis use.

 

In his opening statement, Feliciano told the jury that on the night of the incident, the complainant was “under the influence of various substances” and “behaving aggressively” and that they had a “rocky” relationship. At trial, the prosecution called the complainant. She testified that she and her husband had people over at their house in Kona. Feliciano had been drinking heavily. She also admitted to using cannabis and told the jury that she had a medical cannabis card. She testified that in the evening there was some “roughhousing” with the guests and Feliciano broke it up. She testified she tried to calm him down, but Feliciano grabbed her wrists and told her to get out of the way. She slept in the living room on a pull-out couch with her clothes on.

 

During the early morning hours, Feliciano woke her up. She saw one of the male guests asleep next to her with his clothes on. Feliciano told her to get up and demanded to know what was going with her sleeping with her friend and to come to bed with him. She said she didn’t want to go. According to the complainant, Feliciano got mad and punched her in the face. She testified she blacked out and fell to the ground. She got up, went to the bathroom, and took pictures of her face. She did not call the police. The next morning Feliciano texted her. He indicated that if he hit her, he was sorry. She did not respond. She went to the police four days later.

On cross-examination, Feliciano asked the complainant about her cannabis use, her medical cannabis card, and other medications she took that night. Feliciano also went into their six-month separation, but did not ask why they separated.

 

Feliciano testified in his defense. He testified that after the gathering, he fell asleep in his bed. He woke up and noticed he was alone. He went into the living room and saw the complainant under the covers in the living room with his friend. He woke up the complainant and pulled her up to go back to the bedroom. He testified she got angry and started yelling at him. She testified that she pushed him and Feliciano reacted by slapping her face. He denied punching her in the face. Feliciano also testified about the complainant’s heavy cannabis use and how it effected their relationship. She stopped going to work, watched television all day, and did nothing around the house. He described the relationship as “rocky” and although the complainant wanted to separate, he was reluctant and believed it could be worked out.

 

On cross-examination, the prosecution asked if the complainant moved out because of something done to her in 2016. Feliciano’s counsel objected. The family court overruled and stated “opened the door.” The prosecution presented evidence about the time he pushed her out of a char in 2016 because he was mad at her. He denied it. The complainant was called back on rebuttal to talk about the chair incident.

 

The family court instructed the jury that this evidence was limited to “the issue of the relationship of the parties. . . You must not use this evidence to conclude that because the defendant at another time may have committed other wrongs that he is a person of bad character and, therefore, must have committed the offense charged in this case.”

 

Feliciano was found guilty as charged. He appealed. The ICA affirmed with Judge Leonard dissenting.

 

The Opening the Door Doctrine and Hawai'i. The doctrine of “opening the door” is “a rule of expanded relevancy.” State v. Miranda, 147 Hawai'i 171, 183, 465 P.3d 618, 630 (2020). It means that “when one party present inadmissible evidence to the jury, the opposing party is permitted to adduce pertinent evidence that would otherwise be inadmissible in order to rebut the improperly introduced evidence.” Id. It is limited and “does not allow a party to adduce inadmissible evidence for the purpose of rebutting inference raised by the introduction of admissible evidence.” Id. Hawai'i has yet to adopt this doctrine. See State v. Salavea, 147 Hawai'i 564, 577, 465 P.3d 1011, 1024 (2020).

 

The HSC held that in this case, the doctrine did not apply and it need to decide whether it should apply to Hawai'i courts. The evidence adduced by Feliciano—the complainant’s cannabis use—was admissible to begin with and did not trigger the admission of the 2016 chair incident. The “defendant is entitled to cross-examine a witness concerning the witness’s drug use and addiction at or near the time of the incident to the extent that it affected the witness’s perception or recollection of the alleged event[.]” State v. Calara, 132 Hawai'i 391, 402, 322 P.3d 931, 942 (2014).

 

The Prior Bad Act was Inadmissible Anyways. The HSC further held that the evidence about the chair was inadmissible.

 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

 

HRE Rule 404(b). The examples in this rule are not exhaustive. State v. Behrendt, 124 Hawai'i 90, 103, 237 P.3d 1156, 1169 (2010). “When evidence is offered for substantive reasons rather than propensity, a trial court must additionally weigh the potential prejudicial effects of the evidence against its probative value under HRE Rule 403.” Id. The HSC held that the chair incident evidence was probative of any fact of consequence other than character propensity, and, if so, whether its evidence was substantially outweighed by the danger of unfair prejudice to Feliciano.

 

Distinguishing Clark. The HSC held that the prior bad act here was inadmissible. In doing so, it rejected the ICA’s assessment of State v. Clark, 83 Hawai'i 289, 307, 926 P.2d 194, 212 (1996). In that case, the defendant’s wife recanted at trial. This recantation allowed the prosecution to present evidence of prior acts of domestic violence. “[W]here a victim recants allegations of abuse, evidence of prior incidents of violence between the victim and the defendant are relevant to show the trier of fact the context of the relationship between the victim and the defendant, where, as here, that relationship is offered as a possible explanation for the victim’s recantation.” Id.

 

The HSC held that this is distinguishable here. In Clark, the prosecution could admit the prior incidents of domestic violence to show the full context of the relationship between the defendant and the complainant to explain the recantation. The recantation was “a central fact of consequence” that warranted it. That was not the case here. The HSC explained:

 

In this case, the CW’s reason for moving out of their home eleven months before the alleged incident underlying the abuse charge was not a “central fact of consequence” as to whether Feliciano committed the charged offense. The chair incident evidence was not admissible under HRE Rule 404(b) to show the context of the relationship between Feliciano and the CW.

 

Not Admissible to Rebut Self-Defense. The HSC also held that the prior act of violence could not be used to rebut self-defense:

 

We have difficulty understanding the logic of how a defendant’s prior acts of domestic abuse against a complaining witness would be so probative; it appears that the ICA majority’s reasoning would effectively vitiate HRE Rule 404(b)’s general preclusion of a defendant’s prior bad acts in domestic violence cases. Admission of the chair incident evidence on these grounds would show propensity towards physical abuse, the very inference HRE Rule 404(b) prohibits.

 

Still Barred by HRE Rule 403. The HSC also held that even if it did pass a Rule 404(b) analysis, it would not withstand the 403 balancing:

 

Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403. The trial court weighs a variety of factors in 403 balancing:

 

The strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmasting hostility.

 

State v. Gallagher, 146 Hawai'i 462, 470, 463 P.3d 1119, 11127 (2020). The HSC held that the dangers of unfair prejudice outweighs any probative value. “[T]he justifiable stigma attached to domestic abuse in the eyes of the public, evidence that [Feliciano] had committed domestic abuse was highly likely to rouse the jury to overmastering hostility towards him.” State v. Lavoie, 145 Hawai'i 409, 426, 453 P.3d 229, 246 (2019).