Unreasonable notice for HRE Rule 404(b), Aganon distinguished, other tidbits

State v. Pond (ICA Oct. 11, 2007)

Vacated and Remanded by Hawai'i Supreme Court

Background. Pond was charged with abuse of a household member in violation of HRS § 709-906 and interference with reporting an emergency or crime in violation of HRS §710-1010.5. Just before trial, Pond's counsel requested to continue the trial in order to file a written notice to present evidence showing bad conduct under Hawaii Rules of Evidence (HRE) Rule 404(b). Counsel explained that he intended to show evidence at trial that two weeks before the incident, the complaining witness attacked Pond. Counsel could not file notice of this HRE Rule 404(b) evidence any sooner than today because Pond was unable to recall the exact date of the prior incident until the morning of trial. The court denied the request to continue.

At trial, the complaining witness testified that Pond, her live-in boyfriend at the time, came home drunk one night and attacked her. She tried calling the police on her cell phone, but he took it from her and threw it against a wall. She walked to the police station. Pond testified that he had dinner with a lady friend and came home. When the complaining witness smelled the perfume of another woman, she flew into a rage and bit him. She also attacked him. Pond testified that he had no choice but to push her back. She fell to the ground and started crying. Pond also denied throwing her cell phone and explained that it fell onto the ground. The jury found Pond guilty as charged.

"Reasonable notice" of HRE 404(b) evidence assessed on a case-by-case basis, reviewed for abuse of discretion. HRE Rule 404(b) requires those who intend on using evidence of other crimes, wrongs, or acts at trial to provide "reasonable notice" in advance of trial. The ICA held that the "reasonableness" of the notice in 404(b) is a case-by-case approach. It follows, then, that a trial court's determination of "reasonableness" involves a "judgment call" and, therefore, is reviewed on appeal for an abuse of discretion, rather than de novo.

The ICA also turned to the twin rationales underlying the federal equivalent of HRE Rule 404(b)--prevention of surprise at trial and the early resolution of admissibility issues--but was careful to recognize that HRE Rule 404(b) differs from the federal one in three significant ways: (1) notice applies to both parties; (2) in addition to providing the date and location of the prior bad act, HRE Rule 404(b) notice calls for a description of the "general nature" of any evidence; and (3) the right to be notified that this evidence is to be used at trial does not depend on a motion or request by the other side (i.e. it's automatic). Despite these differences, the federal rationales are still "relevant in determining the reasonableness of [the] notice provided."

In reviewing the case here, Counsel did not provide notice of the intent to use HRE Rule 404(b) evidence until the final moments before trial. The ICA observed that Counsel never explained why he could not have provided at least an approximate time of the alleged bad act instead of an actual date. The ICA held that the trial court did not abuse its discretion in finding the notice "unreasonable." Finally, the ICA observed that Counsel was wrong to think that written HRE Rule 404(b) notice needed to be filed. The rule does not require the notice to be in writing.

Jury Instruction on Justification Defense Not Erroneous. Under Hawai'i law, the use of force is justified when a person reasonably believes that the force is immediately necessary for protection. It is "error[, however,] to judge the reasonableness of a defendant's viewpoint based on circumstances shown in evidence but of which the defendant is not aware." State v. Augustin, 101 Hawai'i 127, 128, 63 P.3d 1097, 1098 (2002). Pond argued that the trial court erred by not offering an instruction that stresses that determinations of reasonableness are based on the viewpoint of a reasonable person in the defendant's position. The ICA held that the justification instruction ("A person employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be[.]"), is consistent with the justification defense in HRS §703-304(3) ("a person employing protective force may estimate the necessity thereof under circumstances as he believes them to be[.]") and adequately prohibits the jury from assessing those circumstances unknown to the defendant at the time. Thus, there was no error.

Aganon distinguished. The trial court also instructed the jury that the State had to prove beyond a reasonable doubt that Pond (1) intentionally or knowingly engaged in conduct and (2) he intended or knew that the conduct prevented a victim or witness to a criminal act from calling 911. To be criminally liable for violating HRS § 710-1010.5, however, the defendant must (1) engage in conduct (2) resulting in the interference of a 911-call, etc. (3) by a victim to or witness of a criminal act. Pond argues that the jury instruction for HRS § 710-1010.5 combined the attendant-circumstances element with the result-of-conduct element and thus, it misled the jury into thinking that it could convict without finding that Pond knew the complaining witness was a victim of a crime. The State concedes this error, but argued it was harmless beyond a reasonable doubt.

The ICA turned to State v. Aganon, 97 Hawai'i 299, 36 P.3d 1269 (2001). In that case, the Hawai'i Supreme Court noted that the trial court erred in instructing Aganon's jury on murder in the 2d degree by listing of the state of mind as a material element and conflating the conduct with the result-of-conduct element. The trial court also instructed the jury on the definitions of "intentionally" and "knowingly" and its relationship to three elements without identifying these elements in murder in the 2d degree. These instructions, according to the HSC, were not reversible error. What reversed Aganon's conviction was the trial court's response to a jury instruction (the jury inquired whether all of three elements in a crime must be found intentionally or knowingly, and the court responded no, finding the state of mind with one would suffice).

The ICA noted that the instructions here were like those in Aganon: "while technically erroneous, [it was] substantially correct" because they contained all of the elements in the offense. The ICA held that it was "reasonably clear" that the jury would not convict Pond without finding that he knew the complaining witness had been a victim of a criminal act.

No prosecutorial misconduct. The last issue on appeal was Pond's allegation that the prosecutor engaged in misconduct by misstating the elements in the interference offense. The prosecutor at closing argument told the jury that there are two elements to the interference offense--that Pond engaged in conduct and that that conduct prevented the complaining witness from calling 911. The ICA held that this comment did not prejudice Pond because the jurors had been instructed that "[w]hat [the lawyers] say [at closing argument] is not evidence[]" and that they "were not bound by how [the lawyers] interpret or remember the evidence." Thus, there was no prosecutorial misconduct.

Two things: "Reasonable" 404(b) notice and Aganon errors. The ICA has charted new ground with the issue of a "reasonable" 404(b) notice. It appears that at the trial level, notice under HRE Rule 404(b) must state the date, location, and general nature of the evidence sought for admission and be "reasonable." Reasonableness is assessed on appeal for an abuse of discretion. It is determined on a case-by-case basis. But what is "reasonable" for trial courts? Perhaps the twin rationales--prevention of surprise at trial and early resolution of admissibility issues--are some guide. Moreover, the ICA noted that nothing in the rules requires that his notice be written and that the date (or location for that matter) be exacting. Counsel's excuse in this case was that he did not know the actual date of the incident, but he might have had some vague idea as to when it happened.

The ICA also distinguished Aganon. Has the ICA limited Aganon to those cases where the judge instructs (assuming that the best way to characterize a response to a jury communication is an instruction) the jury that it need not find the state of mind to all three elements? Under this distinction, it is not Aganon error when an instruction conflates the elements and the prosecutor at closing arguments misstates the law by commenting on that conflation. The best rationale for this distinction may be based on the fact that Aganon clearly puts the responsibility of clear jury instructions on the trial court. Comments by the lawyers are not instructions. Perhaps, it would have been different if Counsel had objected to the instruction from the start. If denied the objection and the conflated elements were commented upon at closing, Counsel could have objected again. Then the responsibility is back on the trial court.


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