Inaudible Responses, Stayed Sentences, and Parental Discipline

State v. Kiese (HSC March 29, 2012)

Background. Jason Kiese was charged with one count of harassment, a petty misdemeanor. Kiese was accused of slapping his six-year-old son on his face and with a thin bamboo stick on his hands and okole. Before trial, there was a hearing to determine the son's competency. Although he did not speak much, the family court noted interpretations of gestures by defense counsel and the prosecutor. This practice continued at trial. Essentially, the son testified that he misbehaved in school so his father scolded him, spanked him, hit his hands and face, it hurt, and he cried. Police officers testified about taking photographs of red marks on the son. The mother, Kiese's wife, testified about not seeing the incident but that Kiese told her that he had hit their son. Kiese testified in his own defense. The family court rejected the parental discipline defense and found Kiese guilty as charged. The family court sentenced 6 months of probation with the requirement of parenting classes. The family court denied Kiese's motion to stay his sentence pending appeal. On appeal, the ICA affirmed and did not address the denial of the motion to stay on the grounds that it was moot. Kiese petitioned to the HSC.

Sufficient Evidence to Overcome Parental Discipline Defense. A person commits harassment when the person strikes, shoves, kicks, or otherwise touches another in an offensive manner with the intent to harass, annoy, or alarm the other person. HRS § 711-1106(a)(1). Kiese argued that there was insufficient evidence showing an intent to harass, annoy, or alarm his son. "[T]he mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances." State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982). The HSC pointed out that Kiese stuck his son with enough force to leave red welts on him the next day. There was enough evidence to disprove the parental discipline defense in HRS § 703-309.

Questioning Putting the Prosecutor as a Witness was Error. The HSC rejected Kiese's argument that the prosecution engaged in egregious misconduct warranting a new trial. The prosecutor repeatedly questioned the boy about prior conversations between him, the prosecution, and defense counsel. The prosecutor justified these questions and the hearsay responses as prior consistent statements:

"Evidence of a statement previously made by a witness that is consistent with the witness' testimony at trial is admissible to support the witness' credibility only if it is offered" in three different scenarios. HRE Rule 613(c). The prosecutor's questioning occurred during direct examination so none of the three scenarios applied. A "prior consistent statement of a witness who has merely testified in direct examination, without impeachment, is ordinarily excluded because it is unnecessary and valueless." State v. Altergott, 57 Haw. 492, 504, 559 P.2d 728, 736 (1977). The questions also asserted a personal knowledge of facts at issue where the prosecutor could not also act as a witness. This was improper.

But far from Harmless. Whether prosecutorial misconduct warrants new trial based on examination of (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the prosecutor's case. State v. Wakisaka, 102 Hawai'i 504, 513, 78 P.3d 317, 326 (2003). The HSC examined all three factors and held that the error was not harmless. As for the first factor, the HSC noted that it appeared that the prosecutor was unaware of the "prohibition against making himself a witness during trial. Compounding the prosecutor's misunderstanding was that neither the defense counsel nor the family court explicitly recognized the prosecutor's line of questioning as improper on the basis of Hawai'i Rules of Professional Conduct Rule 3.4." As for the second step, there was no curative instruction, but that was not significant based on the rebuttable presumption "that the presiding judge will have disregarded the incompetent evidence and relied upon that which was competent." State v. Antone, 62 Haw. 346, 355, 615 P.2d 101, 108 (1980); State v. Guiterrez, 1 Haw. App. 268, 270, 618 P.2d 315, 317 (1980). Finally, there is the strong evidence showing harassment. Based on all of this, the HSC held the erroneous line of questioning was not harmless beyond a reasonable doubt.

"Inaudible" Answers on Transcription did not Prompt Reversal. Kiese argued that the ICA erroneously relied on a bad transcript. Because the minor was soft spoken, much of his responses were not transcribed. They simply stated "no audible response" and either the prosecutor, defense counsel, or the court noted whether the minor was nodding his head or shaking his head. Based on this bad transcript, according to Kiese, the ICA should not have relied on it to affirm the conviction.

The HSC disagreed. "[W]here the transcripts of a defendant's trial are incomplete because they omit portions of the trial proceedings, such omissions do not mandate reversal unless they specifically prejudice the defendant's appeal." State v. Ganotisi, 79 Hawai'i 342, 343, 902 P.2d 977, 978 (App. 1995). The HSC noted that whether inaudible responses rendered the transcript and the appeal defective should be examined on a case-by-case basis. Here, the inaudible responses were usually interpreted by someone in the courtroom. The HSC simply found no error in relying on the transcript.

Staying the Sentence in a Petty Misdemeanor . . . Both parties concede that the family court erred in denying the stay of the sentence. However, since the HSC affirmed the conviction and since the 6-month probationary period was over and done, examination of the issue was moot. Nonetheless, the HSC found issues about staying of sentences important enough under the public-interest exception to the mootness doctrine. See State v. Cullen, 86 Hawai'i 1, 13, 946 P.2d 955, 967 (1997).

Staying the Sentence isn't Really Discretionary. "Stays in criminal cases shall be had according to law." Hawai'i Rules of Penal Procedure Rule 8(c). "[F]iling of a notice of appeal or the giving of oral notice in open court at the time of sentence by the defendant or the defendant's counsel of intention to taken an appeal may operate as a stay of execution and may suspend the operation of any sentence or order of probation, in the discretion of the trial court." HRS § 641-14(a). Although this language may afford stays at the discretion of the judge, "[t]he right to bail shall continue after conviction of a . . . petty misdemeanor[.]" HRS § 804-4(a). And when the defendant is entitled to bail, he or she may not be sentenced while the case is pending further review unless the defendant gives written consent. HRS § 804-4(b). Interpreting this cluster of statutes and rules, the HSC had already held that "[a]n accused misdemeanant, petty misdemeanant, or law violator on bail is entitled to bail as a matter of right after conviction and pending appellate review." In State v. Ortiz, 74 Haw. 343, 356, 845 P.2d 547, 553 (1993). Once the defendant posts bail, the trial court has no jurisdiction to sentence the defendant. State v. Miller, 79 Hawai'i 194, 200-01, 900 P.2d 770, 776-77 (1995).

Editor's Note: This is Justice McKenna's first published opinion!


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