Harmless Error Determined by Weighing Evidence at Trial, not Reasonable Possibility of it Contributing to Conviction

State v. Veikoso (HSC September 12, 2011)

Background. John Veikoso was indicted with eight counts involving sexual assault in the 1st degree, kidnapping, and sexual assault in the 3d degree. The complaining witnesses were two prostitutes. One of the prostitutes testified that Veikoso picked her up near the Long's Drugs and Safeway near Nu'uanu Ave. She agreed to cruise with them and they went up the Pali Highway. They went into a dark neighborhood on the Old Pali Road. Veikoso told her that he could take her back if she was scared. She said she was okay. Soon, however, she did get scared and asked to be taken back. Veikoso took her phone away and hit her in her face and head several times. He grabbed her hair. She was bleeding and lost consciousness. She tried to get out of the car, but Veikoso kept pulling her hair and threatened to hit and even shoot her if she tried to get away. She kept quiet as they drove down the windward side of the Pali. Veikoso said that he would drop her off at a bus stop and give her money to get the bus home. Veikoso, however, passed a bus stop and drove to the Maunawili Elementary School. They pulled into a dark area near a dumpster. Veikoso got out of the car and dragged the woman by her hair her to a bench. He undressed himself and her and they performed sex acts together. Afterwards, he said that he would give back her phone if she went with him to his car. The woman, however, ran away and tried to flag down several cars, until Chad Ogawa stopped. He got a look at the car, took the woman, and drove to a 7-11. Someone called the police. The woman later identified Veikoso and his car. Ogawa testified that he picked up the woman and saw blood on her face and her clothes were torn. She told him that she had just been raped at the school. Ogawa corroborates much of the woman's testimony.

Dr. Lee Wayne Lee testified. Dr. Lee testified that he examined the woman shortly after she was picked up by Ogawa. He examined her to determine if she needed medical attention and to gather forensic evidence. Dr. Lee interviewed the woman as part of the examination. Dr. Lee told the jury that the woman said that Veikoso said she "wouldn't be going home if [she] didn't do what he told [her] to do." Dr. Lee also told the jury that the woman said Veikoso "would shoot [her]" and that she'd "be lucky to go home because most girls don't go home[.]" Dr. Lee then testified about the woman's physical state and the results of his examination.

Veikoso moved to strike Dr. Lee's testimony about the statements that he repeated from the woman. He argued it had nothing to do with his physical examination. The motion was denied. Veikoso was found guilty and he appealed. The ICA, in an unpublished memorandum, concluded that the circuit court erred in admitting Dr. Lee's version of the woman's hearsay statements about Veikoso and that the error was not harmless beyond a reasonable doubt. The prosecution petitioned for certiorari on the grounds that it was not harmless.

The Harmless-Beyond-a-Reasonable-Doubt Standard(s). "Even if the trial court erred in admitting evidence, a defendant's conviction will not be overturned if the error is harmless beyond a reasonable doubt." State v. Machado, 109 Hawai'i 445, 452, 127 P.3d 941, 948 (2006). The error is "examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to the conviction." Id. at 452-53, 127 P.3d at 948-49. Formulated differently, when "there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless." State v. Toyomura, 80 Hawai'i 8, 27, 904 P.2d 893, 912 (1995).

The Evidence for Sexual Assault in the First Degree. One of the offenses was sexual assault in the first degree. This requires proof of knowingly causing sexual penetration by "strong compulsion." HRS § 707-700. According to the HSC, there was evidence from the woman herself relating to two separate acts of sexual penetration. There was also testimony from Dr. Lee relating to his actual physical examination, which suggested penetration. Finally, there was Ogawa's observations of a ripped blouse and her statement that she had been raped.

Evidence of "Strong Compulsion." The HSC also examined evidence of a "strong compulsion." A strong compulsion is (1) a threat that "places a person in fear of bodily injury" or fear of kidnapping, (2) a dangerous instrument, or (3) physical force used to overcome a person. HRS § 707-700. According to the HSC, there was evidence of a threat of bodily injury. The woman testified that Veikoso's threaten her with violence if she did not obey him; that he would "shoot" her or hit her again. There was also evidence of physical force from the woman's testimony about how he actually hit her and pulled her hair. This testimony is corroborated by the observations of Dr. Lee and Ogawa. Moreover, there was physical evidence of blood found in Veikoso's vehicle and on his shorts. Finally, there was evidence that the threats and physical force was used to overcome the woman. After she had been hit a few times, the woman stopped trying to escape and complied with Veikoso's demands.

After reviewing all of the evidence presented at trial, the HSC held that there was "overwhelming" evidence showing Veikoso guilty of assault in the first degree.

Evidence of the Other Offenses: Sexual Assault in the Third Degree and Kidnapping. The HSC took the same approach to the other counts. As with sexual assault in the first degree, the HSC held that there was overwhelming evidence supporting the jury's verdict.

Rejecting the ICA's Approach to Harmlessness. The HSC took issue with the ICA's analysis. ICA held that Dr. Lee's statements from the woman were not harmless beyond a reasonable doubt because his testimony "may have tipped the scale in favor of" the woman's credibility. The HSC noted that even if that was true, there was still overwhelming evidence supporting the guilty verdict. For example, "strong compulsion" can be proven with either a threat of violence or actual physical force. Nothing in the erroneous statements, according to the HSC, related to the evidence of actual physical force employed by Veikoso.

What about Arceo? When the HSC explained why the ICA incorrectly held that the error was harmless, it noted that there were alternate ways to establish some of the elements of sexual assault and kidnapping. So what happened to Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996)? A defendant's "constitutional right to a unanimous verdict is violated unless . . . (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the 'conduct' element . . . or (2) the trial court gives the jury a specific unanimity instruction[.]" Id. at 32-33, 928 P.2d at 874-75. True, there might have been a unanimity instruction. But if the HSC has acknowledged that there was evidence showing alternate ways for the jury to find Veikoso guilty of some of the offenses, and that the erroneously-admitted evidence might have tainted one of those ways, how can it still be considered harmless beyond a reasonable doubt? There's no way to know--unless there was a special verdict form--whether the jurors picked a way that was unrelated to the erroneous statements. For example, there is nothing establishing which form of "strong compulsion" was agreed upon by the jurors to find Veikoso guilty. And yet, the error doesn't seem to be harmless beyond a reasonable doubt. How can this be? How can this explanation be reconciled with Arceo? That answer awaits us for another day.

A Reasonable Possibility or Overwhelming and Compelling Evidence? At first, it seemed as if there were two separate formulations of the harmless error standard. The ICA appears to have to taken the reasonable-possibility-that-the-error-might-have-contributed-to-the-conviction approach. That, however, was rejected by the HSC because it took a different tact. Instead, the HSC weighed all of the evidence underlying the various offenses, and held that there was overwhelming evidence of guilty and that the erroneously-admitted statement was harmless beyond a reasonable doubt. The HSC then fused the two standards together and held that "[i]n that light, there is no possibility of a reasonable nature that the error contributed" to Veikoso's conviction. So are these standards the same? The HSC did not really address the differences in the formulations, but it begs the question: can an error ever give rise to a reasonable possibility that it might have contributed to the conviction even if there was overwhelming evidence of the person's guilt?

It raises other problems too. What if the HSC held that there wasn't overwhelming evidence? What does that do to the propriety of the verdict itself? If a jury found evidence beyond a reasonable doubt, then what is "overwhelming evidence" of guilt? Something more than beyond a reasonable doubt?


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