Hi-Tech Hearsay and Prosecutorial Misconduct that's NOT Harmless

State v. Espiritu (HSC January 28, 2008)

Background. Espiritu and the Complaintant dated for a while, broke up, and still kept in touch. The Complaintant received four alarming text messages from Espiritu’s cel phone. At some point, the Complaintant met a guy at the Fish and Game Bar. Shortly after going back to her place and having $ex, Espiritu showed up at the house. A struggle ensued, Espiritu reached for a gun and shot the Complaintant. She lived. After the incident, investigating police officers copied the text messages to notes which appeared in their reports. Espiritu was charged with attempted murder in the 2d; carrying or using a firearm; and place to keep a firearm. The jury found him guilty as charged. Espiritu was sentenced to life imprisonment.

OMG! Txt mssges r so hrsy! At trial, the State asked the Complaintant if she could recall the content of the text messages. She had a vague recollection of some, but not all, and examined the police reports in order to refresh her memory. Both parties and the HSC agreed that the text messages and testimony about those messages were indeed hearsay. HRE Rule 801. The HSC also held that because (1) the texts were made by a party-opponent that (2) was offered against the party, the hearsay exception was met. HRE Rule 803(a)(1).

It seems fairly straight forward. But what if Espiritu objected not on hearsay, but on the grounds that there was insufficient foundation showing that Espiritu sent the text messages? Perhaps it can be inferred that a text message from a particular person’s phone was sent from that person. Perhaps that such issues would go to the weight rather than the admissibility anways. Still yet, it’s a thought.

The Best Evidence Rule Rules! After Espiritu objected to the testimony about the text messages, the circuit court stated that the Complaintant’s testimony about the evidence was indeed not the best evidence (but allowed it because it went to the weight). The HSC agreed with the circuit court.

HRE Rule 1002 requires that in order to prove the “content of a writing, recording, or photograph,” the original is required. A text message falls squarely within the definition of a “writing.” HRE Rule 1001. Thus, absent an exception, the Complaintant’s testimony about the text messages (instead of the orignal message itself) is insufficient. Without exceptions, the Best Evidence Rule would change litigation significantly. One of the gaping exceptions provides that when the original is not required when all originals have been lost or destroyed unless the propoent lost/destroyed them in bad faith. HRE Rule 1004. The HSC held that the HRE Rule 1004 exception applied because there was no bad faith. The Complaintant didn’t have her phone anymore; she switched to phone carriers; and it’s unclear whether text messages can be published at all.

Just how Refreshed do you have to be? It is a basic rule that police reports are hearsay and do not qualify under the past-recollection-recorded exception. See HRE Rule 802.1(4). Nor do they, for criminal cases, qualify under the public-records-and-reports exception. HRE Rule 803(b)(8). Equally basic is the rule that anything, including police reports, may be used to help a witness refresh his or her memory. HRE Rule 612. Espiritu argued that the Complaintant did not really use the police reports to refresh her memory. Rather, she read the reports into evidence.

After all, the witness’s memory should be the testimonial evidence, not the item that was used to help her refresh her memory. Espiritu challenged this and argued that the Complaintant read the police reports into evidence rather than testify based on the powers of her own memory. The HSC disagreed. The instances where the police report supplanted the Complaintant’s memory were “substantial enough to effectively contravene the conclusion . . . that the Complaintant was testifying about the messages from her refreshed recollection rather than her memory of reading the report.”

Demonstartive Evidence a Push. At trial the State brought in a doctor to demonstrate that during the struggle Espiritu could have been able to reach for the handgun. The HSC examined the record and concluded that it was unclear whether the demonstration had any effect whatsoever on Espiritu’s case.

Misstating the Law at Closing is Prosecutorial Misconduct. At closing, Espiritu’s counsel argued that there was evidence showing he shot the Complaintant under extreme mental or emotional distress (EMED). The State rebutted and told the jury that unlike other cases of EMED, Espiritu did not have a special relationship with the Complaintant and he shot her after a length of time (e.g. a father shoots a drunk driver immediately after killing or harming his child). The HSC held that this statement was a misstatement of the law that improperly shifted the burden of proving a special relationship to Espiritu. A special relationship between the defendant and the victim and immediacy between the criminal act and the extreme distress are not necessary to raise the EMED defense.

And it’s NOT Harmless. The HSC was not convinced that this error was harmless beyond a reasonable doubt. Even if there was insufficient evidence of EMED, the standard is whether there was a reasonable possibility that the error might have contributed to the conviction. State v. Sawyer, 88 Hawai’i 325, 329 n. 6, 966 P.2d 637, 641 n. 6 (1998). After overruling Espiritu’s objection, the jury “would reasonably perceive that the misstatement . . . was not incorrect.” The court did not give the jury a curative instruction right then and there. The HSC stated that the lack of curative instruction was directly related to the EMED defense and thus there was a reasonable possibility that might have contributed to the conviction. The HSC vacated and remanded for new trial.

So a prosecutor has got to be on his or her toes. So does the trial court for that matter. If a misstatement comes up, and that misstatement goes directly to a defense or criminal liability, the circuit court can’t dismiss it as mere argument, as it did here. A curative instruction given right then and there is in order.

Justice Nakayama’s Dissent. Justice Nakayama believed that the prosecutor’s statements were warranted because Espiritu’s closing argument invited the comments. Espiritu argued at closing that he walked in on his not-so-ex-girlfriend having $ex with some guy she met at a bar, which is akin to the classic EMED defense: a husband walking in on his wife having $ex. The State responded to this assertion by bringing up hypotheticals in the rebuttal, which was well-within his ability to do so. Such hypos are not erroneous.

Majority’s Last Word? The penultimate portion of the majority opinion addresses the crux of Justice Nakayama’s dissent. It counters that even though a prosecutor may respond to the defendant’s closing argument which invite or provoke a response, State v. Clark, 83 Hawai’i 289, 305, 926 P.2d 194, 210 (1996), such a response is not license to missapply or misstate the law. The majority also took the position that the defense did not invite these comments in the first place. It appeared that the EMED hypos were brought up by the prosecutor as early as voire dire and throughout trial.


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