Notice Requisites not an Unconstitutional Impediment

State v. Pond (HSC September 29, 2008)

Pond was charged with abuse of family or household member (HRS § 709-906) and interference with reporting an emergency or crime (HRS § 710-1010.5). Just before trial, Pond asked for a continuance so that he could give reasonable notice to the State pursuant to HRE Rule 404(b). Pond wanted to present evidence that Russell "smacked" Pond about two weeks before the alleged abuse. Pond did not provide notice earlier because he did not have the actual time of the "smack" until the morning of trial. The circuit court denied the continuance and denied the admission of the evidence because the notice was not "reasonable."

At trial, Miae Russell testified that Pond, her boyfriend, came home drunk one night and attacked her. Russell testified that she tried to call the police for help, but Pond grabbed the phone and threw it against the wall. She admitted that she hit him back, but explained that it was in self defense. On cross-examination, Pond's counsel asked Russell if she smoked marijuana that night. The State objected. At a bench conference Pond explained that evidence of her marijuana use could be used to impeach her and undermine her credibility. The court, however, considered it a "prior bad act" for which there was no HRE Rule 404(b) notice. The question was stricken and the jury was instructed to disregard it.

Pond testified that when he came home after eating dinner with another woman he saw that half a bottle of vodka in their home. Pond kissed Russell, but she bit down on his lip. Pond bit on her lip so that she would release him. When she did, she was in a rage because she smelled perfume on him. She started punching him. Pond testified that the punches were fast and hard so he pushed her. She fell onto the bed. Russell grabbed the phone and they started arguing. He admitted to grabbing the phone, but did not know what became of it. Pond testified that he did not know who she was calling. Pond began to testify about being "smacked" about an incident a week before but the State objected and the circuit court sustained, struck the last question, and told the jury to disregard his answer. The jury found him guilty as charged. The ICA affirmed.

"Reasonable" Notice of HRE Rule 404(b) Evidence not Unconstitutional Under the "Legitimate Interest" test. In a criminal case, the proponent offering evidence of crimes, wrongs, or acts must provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b). This notice requirement, unlike the federal rules of evidence, applies to both the prosecution and the defendant. The HSC rejected Pond's that the notice requirement was an unconstitutional deprivation of his right to confront adverse witnesses under both the Sixth Amendment and Art. I, section 14 of the Hawai'i Constitution.

The HSC explained that the right to present "relevant testimony is not without limitation" and may "bow to accommodate other legitimate interests in the criminal trial process." Rock v. Arkansas, 483 U.S. 44, 55 (1987). Thus, the HSC evaluated "whether the interests served by [this evidentiary rule] justify the limitation imposed on the defendant's constitutional right to testify." Id. at 56. The HSC applied this "legitimate interest" test by examining the policeis underlying the evidentiary rule. See Michigan v. Lucas, 500 U.S. 145 (1991). The HSC examined the policy underlying the notice rule and agreed with the ICA that it is designed to reduce surprise and promote early resolution of cases. These policies, according to the HSC, were not unconstitutional infringements on the right to testify and confront witnesses.

Preclusion of Marijuana Smoking an Abuse of Discretion. Finding no constitutional infirmity, the HSC also held that the circuit court did not abuse its discretion in refusing to admit evidence of the "smack." The circuit court concluded--and both appellate courts agreed--that Pond failed to establish good cause for not giving reasonable notice sooner. The HSC opined that Pond "could have given the prosecution general notice prior to trial to eliminate undue surprise and allow the prosecution the opportunity to prepare for this matter." A "general notice" is perhaps better than no notice. Furthermore, the HSC may have articulated a third purpose for the notice requirement--the "opportunity to prepare."

Cross-Examination about the Sensory Perception Required. The majority and the dissenting Justices agreed that the circuit court erred in refusing to allow Pond to cross-examine Russell about her marijuana use that night. A defendant may cross-examine the witness about his or her "drug use and addiction at or near the time of the incident to the extent that it affected [his or] her perception or recollection of the alleged event." State v. Sabog, 108 Hawai'i 102, 111, 117 P.3d 834, 843 (App. 2005). This is well within the scope of cross-examination as a form of impeachment. See Davis v. Alaska, 415 U.S. 308, 316. Evidence that Russell was smoking marijuana on the night of the alleged abuse was proffered to show that her perception was compromised and she was not credible. Evidence impeaching "a witness' sensory or mental defect does not fall under the purview of HRE Rule 404(b)" and thus did not require Pond to give "reasonable notice."

Nor was this preclusion harmless beyond a reasonable doubt. Had Pond questioned Russell about her marijuana use that night, the jury would have been able to evaluate her perception and judge her credibility. In convicting Pond as charged, the jury found Russell credible over Pond. This all indicated that there was a "reasonable possibility that the errors . . . contributed to Pond's conviction."

The Self-Defense Instruction not Defective. Use of force for self-protection is a defense and "a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering, possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action." HRS § 703-304(3). A jury "must consider the circumstances as the Defendant subjectively believed them to be at the time he tried to defend himself." State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990). Pond's jury was instructed that a person "employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating." Pond argued that the instruction failed to inform the jury that the reasonableness of his belief must be viewed from his perspective. The HSC disagreed and held that the instruction "sufficiently track[ed]" the language in HRS § 703-304(3).

A Clarification on Elements. The HSC clarified the elements of interference with an emergency call. There are three kinds of elements to an offense: (1) the conduct; (2) attendant circumstances; and (3) the results of the conduct. HRS §§ 702-204; 702-205. An "attendant circumstance" is defined as those circumstances that are neither the conduct nor the results thereof. State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005). A person is guilty of interference with an emergency call if he or she intentionally or knowingly "prevents a victim or witness to a criminal act from calling" 911 or an emergency telephone system. HRS § 710-1010.5. The HSC clarified that in that offense, the conduct would be an act and the result of that act would be the prevention of making the call. Thus, there are two attendant circumstance would be that the caller was a victim of or witness to a crime and that the call was to an emergency telephone system.

Justice Acoba's Dissent and Concurrence--HRE Rule 404(b) Notice and the Hawai'i Constitution. Justice Acoba concurred with the majority when it came to vacating and remanding on the circuit court's preclusion of the marijuana smoking. However, Justice Acoba believed that the HRE Rule 404(b) notice requirement cannot be applied with equal force to both the defendant and the State. The federal rules of evidence require only the prosecution to provide reasonable notice to the defendant of FRE 404(b) evidence. This distinction, wrote Justice Acoba, warranted different treatment when the defendant is required to provide notice to the prosecution. Neither the ICA nor the majority adequately balanced the policies underlying the notice rule with the defendant's constitutional right to present evidence at trial.

Justice Acoba turned to State v. Peseti, 101 Hawai'i 172, 65 P.3d 119 (2003), in which the HSC balanced the exclusion of evidence against the defendant's right to present that evidence as provided by the Hawai'i Constitution. According to Justice Acoba, the defendant's right under the Hawai'i Constitution trumps an evidentiary exclusion "when the defendant demonstrates that (1) there is a legitimate need to disclose the protected information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists." Id. at 182, 65 P.3d at 129 (quoting State v. L.J.P., 270 N.J. Super 429, 637 A.2d 532, 537 1994)). Justice Acoba found this case analogous to Peseti and would have applied the three-part test.

Peseti Distinguished by Majority. The HSC did, however, distinguish Peseti. According to the HSC, Peseti concerned the tension between a defendant's right to confront witnesses and present evidence at trial and a statutory privilege excluding the evidence. The test laid out in Peseti, explained the HSC, is limited only to the statutory privileges. This case, however, addressed the tension between evidentiary notice requirements and the defendant's rights to present evidence at trial. Unlike privileged communications, the notice requirement is not an absolute bar of evidence. It only restricts the use of evidence when it is not in compliance with the notice procedure. Moreover, the HSC stated that "to hold that the Peseti rule applies to the admission of defendants' HRE Rule 404(b) evidence, on the basis of protecting defendants' constitutional rights, would effectively rewrite HRE Rule 404(b) and render the notice requirement per se unconstitutional." Justice Acoba, however, was unconvinced. "The majority's desire to ignore the Peseti precedent cannot be justified because the majority may be unhappy with the result this court's own precedent demands. Whether correct or not, the majority's view that HRE Rule 404(b) evidence 'would always satisfy the Peseti test' is not a basis for rejecting it in any specific case."

Acoba: the Continuance of Trial. Justice Acoba also believed that the circuit court erred in denying the continuance. The circuit court did not consider Pond's constitutional rights to present evidence and effectively cross-examine adverse witnesses. At the very least, the circuit court should have inquired into the feasibility to cure any perceived prejudice suffered by the State. See State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); State v. Dowsett, 10 Haw. App. 491, 878 P.2d 739 (1994).

Acoba: the Self-Defense Instruction. Justice Acoba also took issue with the self-protection instruction. According to Justice Acoba, an instruction on use of force for self-defense is measured from the viewpoint of a person "in the defendant's position." State v. Pemberton, 71 Haw. at 477, 796 P.2d at 85; State v. Estrada, 69 Haw. at 224-25, 738 P.2d at 826. See also State v. Augustin, 101 Hawai'i 127, 63 P.3d 1097 (2002). This is not the same as viewing the circumstances "as the defendant reasonably believe[d] them to be." The difference is one between the legally correct subjective standard from the erroneous objective one. Thus, that too was error for Justice Acoba.

Justice Duffy's Dissent and Concurrence. Justice Duffy concurred with the majority on everything but one point: the jury instruction on self-defense. Justice Duffy wrote that "the jury instruction given was improper and prejudicial for the reasons stated by Justice Acoba[.]"


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