Constitutional Challenges to Evidentiary Rulings and a Contested Election

State v. Kassebeer (HSC September 30, 2008)

Background. Kassebeer and his ex-wife, the complaining witness, were still having sexual relations. One night Kassebeer saw the complaining witness and was convinced that she was seeing someone else. In the early morning hours of 4-10-04, Kassebeer to her apartment in search of evidence that she was sleeping with another man. When she got home, Kassebeer grabbed her, covered her mouth, and confronted her with his suspicions. She was talking with her friend, Hashimoto-Matautia, when she got home on her cell phone. Hashimoto-Matautia called the police, but nothing came of it. That afternoon, Kassebeer went back to the complaining witness's, but she was not at home. The people who took him there had to leave, and he was alone in her apartment. He saw her coming home on her cell phone and waited for her. According to the complaining witness, Kassebeer was forceful and raped her when she got home. During that time, Hashimoto-Matautia came to the apartment and called the police. The complaining witness also testified that Kassebeer called his friend and taunted him about hiding his handgun. Kassebeer said that he took the gun and was going to take the complaining witness hostage. Kassebeer testified that when the complaining witness found him in her apartment, he said that he did not want to cause trouble. According to Kassebeer, they had a discussion about their relationship which led to consensual intercourse. During that time, Hashimoto-Matautia started banging on the door. Hashimoto-Matautia saw him. Kassebeer admitted that he brought the gun, but he kept it hidden under the bed. Kassebeer was indicted for sexual assault in the first degree (HRS § 707-730(1)(a)), sexual assault in the third degree (HRS § 707-732(1)(f)) and kidnapping (HRS § 707-720(1)(e)). The jury found him guilty of sexual assault in the first and kidnapping.

The Handgun Goes in. Kassebeer argued that the circuit court erred in allowing the handgun to go into the jury room. The HSC pointed out that Kassebeer did not object to the admission of the handgun until the end of the prosecution's case-in-chief, and, therefore, he waived the argument on appeal. HRE Rule 103(a)(1). The HSC also held that the gun was nonetheless relevant to show the "state of mind requisite to the charged offense of kidnapping-with-the-intent-to-terrorize." Thus, there was no error. The HSC did not, however, engage in a lengthy HRE Rule 403 analysis.

It is Always Damaging, but is it Prejudicial? The HSC did, however, undergo a thorough HRE Rule 403 analysis for Kassebeer's contention that the jury was not permitted to hear evidence of the incident in the complaining witness's apartment during the early morning hours of 4-10-04. Kassebeer first argued that the incident had little probative value because of the span of time between the incident and the alleged rape and kidnapping. The HSC simply disagreed. See State v. Sweat, 606 S.E.2d 508, 515-16 (S.C. Ct. App. 2004). As for the unfair prejudice, the HSC did not find the prejudice "unfair." The HSC explained that all probative evidence of the State is prejudicial, State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516 (1992), but unfair prejudice brings an "undue tendency to suggest [a] decision on an improper basis." Kamaka v. Goodsill, Anderson, Quinn and Stifel, 117 Hawai'i 92, 116, 176 P.3d 91, 115 (2008). Kassebeer's argument that the evidence is "so probative that he felt compelled to take the stand," according to the HSC, is "not in any way 'unfair.'"

Kidnapping Verdict had to be Unanimous, and it was Unclear. The HSC next examined whether the verdict for kidnapping was unanimous. When "separate and distinct culpable acts are subsumed within a single count . . . and the defendant is ultimately convicted . . ., the defendant's constitutional right to a unanimous verdict is violated" unless (1) at or before the close of the State's case-in-chief, the State elects the specific act; or (2) the trial court instructs the jury that "all twelve . . . must agree that the same underlying criminal act has been proved beyond a reasonable doubt." State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996); State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000). One way to "elect" can be by silence. When the prosecutor makes "no effort . . . to develop the facts necessary to establish [one of the separate and distinct culpable acts] . . . or to argue that the aforementioned act constituted a violation, . . . the prosecution made an effective election[.]" State v. Maumalanga, 90 Hawai'i 58, 64, 976 P.2d 372, 378 (1998). The State contended that it made a Maumalanga election by referencing the afternoon incident (as opposed to the early morning incident) during the prosecution's closing argument, but the HSC disagreed. The HSC explained that the State developed the facts needed to establish that the kidnapping offense occurred during the early morning hours of 4-10-04 as opposed to the afternoon. Thus, even though the State avoided reference to the morning incident, "the decision to elicit testimony developing the facts [of that incident] trumps the silence[.]" Furthermore, the HSC pointed out that "the prosecution's closing argument, without more, cannot take the place of a specific unanimity instruction." Thus, without the election and in the absence of a unanimity instruction, it was plain error.

Contesting an Election. The Maumalanga test is formulated in the negative (e.g. neither . . . nor). Thus, in order to make a proper election by silence, the prosecutor must not (1) develop the facts necessary to establish one of the separate and distinct acts; and (2) argue that the act constituted a violation. How does a prosecutor make such an election? First of all, there is the problem with timing. Under Arceo, the election must take place "at or before the close of the State's case-in-chief." But it appears that under Maumalanga, the election is not made until the State makes no effort to develop facts establishing the act--presumably during the case-in-chief--and argue that that act constituted a violation--presumably at closing argument. That matter was not cleared up here. The HSC held that the State made no such election because it made distinct efforts to develop facts during its case-in-chief. This leads to the second problem. How much is an "effort to develop facts"? It could be a matter of degree.

A Slip of the Tongue. When the circuit court judge sustained the State's objection at trial, he said "offense" as opposed to the "alleged offense." Kassebeer argued to the however, believed that this "miscue" did not arise to bias or the "appearance of advocacy or partiality." United States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001). Moreover, the jury was instructed to disregard any remarks the judge made during the trial (other than instructions), especially remarks that would suggest impartiality. Juries are presumed to follow the instructions. State v. Hague, 103 Hawai'i 38, 59, 79 P.3d 131,152 (2003). The HSC held that the judge's remark it did not have a substantial and injurious effect on the jury and that the instruction was a proper cure of any misstatement.

Evidentiary Rulings still have to be Constitutional. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against the accused . . . ." Hawai'i Const. Art I, section 14. This right gives the accused the "opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses." State v. Fields, 115 Hawai'i 503, 512, 168 P.3d 955, 964 (2007). The HSC pointed out that while a defendant has a constitutional right "to present any and all competent evidence in his defense," State v. Horn, 58 Haw. 252, 255, 566 P.2d 1378, 1380 (1977), this right may "bow to accommodate other legitimate interests in the criminal trial process." State v. Pulse, 83 Hawai'i 229, 246, 925 P.2d 797, 814 (1996).

And it was for the Police Officer. The circuit court through evidentiary rulings prevented Kassebeer from cross-examining the investigating officer and the complaining witness. The officer testified that the complaining witness's injuries were consistent with her version of what happened. On cross-examination, Kassebeer attempted to ask the officer with the complaining witness's statement that the injuries came from another incident. The circuit court, however, sustained the State's objection to lack of foundation. The HSC held that the circuit court correctly ruled on the lack of foundation and that there was no constitutional infirmity because Kassebeer had the opportunity to lay the required foundation, but Kassebeer never took it.

But not for the Complaining Witness. It was a different story for the complaining witness. Kassebeer asked if she remembered reporting to the police that she told Hashimoto-Matautia to call the police because she was raped. She said she could not remember so Kassebeer attempted to refresh her memory by having her review her statement. The State objected because that question was asked and answered and the circuit court sustained. The HSC held that the circuit court's ruling was erroneous because the complaining witness did not have an "uninterrupted opportunity" to answer the question. The HSC also found this error reversible. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" HRE Rule 103(a). Here, the preclusion impaired Kassebeer's ability to impeach the complaining witness's testimony with inconsistent statements. The circuit court interfered with Kassebeer's laying of foundation to introduce a prior inconsistent statement. HRE Rule 613(b).

Hawai'i's Legitimate-Interest Test? The language allowing a constitutional limitation to the defendant's right to present evidence and challenge witnesses for the prosecution was identical to the language adopted by the HSC majority in State v. Pond, announced the day before this case. In that case, the legitimate-interest test was applied to a constitutional challenge of the notice requirements in HRE Rule 404(b). In this case it is cited as the standard in measuring a constitutional challenge to other evidentiary rulings. The cases that quote the language here, however, come from the HSC and apply strictly to the Hawai'i Constitution. In Pond, the language came from the United States Supreme Court and incorporated the Sixth Amendment. To complicate matters, Justice Acoba dissented from the majority in Pond and urged a different test from State v. Peseti, 101 Hawai'i 172, 65 P.3d 119 (2003). Justice Acoba, however, did not dissent here. From these two cases, announced within twenty-four hours of each other, a standard in challenging the constitutionality of the rules of evidence and evidentiary rulings may have emerged. It is a bit early to tell.

No Error in Denying the Motions for Mistrial. The HSC rejected Kassebeer's claim that the motions for mistrial based on violations improper comments of the prosecution's witnesses. In addressing whether a new trial is warranted, courts consider (1) the nature of the misconduct; (2) the promptness of a curative instruction; and (3) the strengths and weaknesses of the evidence against the defendant. State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378 (1992). Here, the State's witnesses violated an order by the court not to discuss prior incidents of abuse. "The deliberate and unresponsive injection by the prosecution witnesses of irrelevant references to prior arrests, convictions, or imprisonment may generate insurmountable prejudice." State v. Loa, 83 Hawai'i 335, 353, 926 P.2d 1258, 1276 (1996). The State's witness may not hurl "evidentiary harpoons" at the defendant's case. Id. According to the HSC, these references of prior abuse, never arose to insurmountable prejudice. They were fleeting references and were not deliberate. Moreover, the circuit court gave prompt curative instructions soon after the improper comments. Short of insurmountable prejudice, any harm resulting to the defendant "can be cured by the court's instructions to the jury" based on the presumption that the jury will follow its instructions. Samuel, 74 Haw. at 149 n. 2, 838 P.2d at 1378 n. 2.


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