Fleshing out when you can use Preliminary Hearing Testimony at Trial

State v. Nofoa (HSC April 14, 2015)

Background. Toi Nofoa was charged with one count of kidnapping and one count of terroristc threatening in the second degree. In September 2008, Nofoa was held by a judicial determination of probable cause. Attached to the JDPC was an affidavit from an HPD officer that containing hearsay statements from the CW, Nofoa’s girlfriend. Nofoa had a preliminary hearing.

At the preliminary hearing, the CW testified that she was in a relationship with Nofoa for about two and half years, and she ended it. She testified that about a month after the breakup, Nofoa called and asked if she was “seeing another guy.” She said it was none of his business. That night Nofoa approached her as she was walking back to her car. The CW said that he wanted to talk to her and she started walking with him. She said he started to get aggressive and then pulled her. As she tried to walk away, he put her in a chokehold, said that he had a gun, and told her to get into the car. She did. They drove to the North Shore and stopped at a gas station in Haleiwa to buy alcohol. Nofoa went into the shop and the CW got out and whispered to a man working there to call the police for help. Nofoa saw her and picked her up and put her back in the car. The CW started yelling and screaming. The workers at the store told Nofoa to leave her alone and eventually he released her and he drove off. The police showed up ten minutes later. Nofoa’s counsel cross-examined the CW for about twenty-one pages on the transcript. The district court and the prosecutor did not interrupt the cross-examination. Nofoa was bound over.

About six months later, Nofoa was arrested and charged with the murder of CW. Nofoa took the murder case to trial and was acquitted.

The prosecution for the kidnapping and the TT1 followed the acquittal. Before trial, the prosecution filed a notice of intent to use the CW’s preliminary hearing testimony on the grounds that she was unavailable for trial. Nofoa opposed on the grounds that the hearing offered an insufficient opportunity to cross-examine the CW. Nofoa argued that at the time of the preliminary hearing, the discovery disclosures were incomplete. The prosecution had not disclosed a three-page written statement by the CW, a recorded interview of the CW, and a five-page police report with another statement of the CW. Nofoa did not have access to the 911 call made from the gas station either.  On top of that Nofoa argued that the purpose of the prelim is to determine probable cause, and it cannot be used at trial. The circuit court rejected Nofoa’s arguments and allowed the prosecution to use the testimony.

At trial, the court warned counsel that there would be no references to CW’s death. At the end of the trial, during his closing argument, Nofoa’s lawyer argued that it had to determine whether the CW or Nofoa was telling the truth. He told the jury that it could not find the CW credible because they know nothing about her:

[W]hat do we know about CW? What do we know about her credibility? Okay. We know what kind of car she drives. We know she got a new boyfriend a month after she broke up her . . . two and a half year, long-term relationship broke up. That’s about all we know.

Okay. Because you don’t know anything about her and her credibility, the only thing that you can do to judge her credibility is to compare her story to any other evidence presented in the trial. That’s the only thing you can do, because you didn’t get to see, hear, you know, like you did with [Nofoa].

The circuit court interrupted the argument and at a bench conference said that counsel had opened the door. The circuit court said that the remedy at that point was the inform the jury that the CW was dead. Over Nofoa’s objection and denying his request for a curative instruction, the circuit court allowed the prosecution to tell the jurors that the CW was dead during rebuttal. The prosecution did just that and then immediately alluded to the CW’s preliminary hearing testimony about Nofoa using a gun to threaten her. The jury found Nofoa guilty and the circuit court sentenced him to prison for 20 years concurrently. The ICA affirmed.

The Odd Issue of Judicial Bias. The HSC first confronted the curious problem of identifying the issue on appeal. A trial judge has broad discretion to control the scope of a closing argument. State v. Adams, 61 Haw. 233, 234, 602 P.2d 520, 521 (1979). But the judge can abuse its discretion at some point in determining the scope of argument. The HSC held that the circuit court abused its discretion in allowing the prosecution to refer to facts that were not in evidence. The HSC relied on a line of cases in which prosecutors commit misconduct when he or she refers to facts that were never adduced by the evidence at trial. State v. Tuua, 125 Hawaii 10, 14, 250 P.3d 273, 277 (2011); State v. Basham, 132 Hawaii 97, 114-15, 319 P.3d 1105, 1122-23 (2014). In this case, the circuit court essentially instructed the prosecutor to engage in misconduct. This isn’t the prosecutor’s fault, but was an abuse of discretion on the part of the circuit court. Nor is the issue harmless beyond a reasonable doubt. The HSC held that there was a reasonable possibility that this last-minute reference to the death of the CW contributed to the conviction.

What if the Circuit Court Re-Opened Trial to Allow Evidence of the Death? Does the analysis hinge on the fact that the CW’s death was not in evidence? What if the prosecutor stood up after closing and sought judicial notice or asked to reopen the trial to present evidence of the CW’s death? Would that have solved the problem?

When you get to use Prior Testimony at Trial. The defendant has the right to confront witnesses at trial. Haw. Const. Art. I, Sec. 14; U.S. Const. Am. VI. Out-of-court statements are barred by the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004). Once the declarant is deemed unavailable, the statement does not offend the Hawaii confrontation clause “only if the defendant was afforded a prior opportunity to cross-examine the absent declarant about the statement.” State v. Fields, 115 Hawaii 503, 516, 168 P.3d 955, 968 (2007). This has to be a “meaningful opportunity” to cross. Id. at 528, 168 P.3d at 980.

Putting Meaning in “Meaningful.” Here, there’s no question that at the time of trial, the CW was unavailable. She’s dead. The real question was whether the cross at the prelim was a “meaningful opportunity” that would not offend the Confrontation Clauses. The HSC noted that the use of preliminary hearing at a  trial depends in large part on the discovery that was available at the time and the restrictions imposed by the trial court at the preliminary hearing. See State v. Faafiti, 54 Haw. 637, 641, 513 P.2d 697, 701 (1973); Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775 (1984). The HSC also looked to cases from other jurisdictions and declined to adopt a bright-line rule that would have banned the use of any and all preliminary hearing testimony.

Depends on the Case. Instead, the HSC adopted a case-by-case approach and emphasized three factors:

[I]n order to determine whether Nofoa had a sufficient and meaningful opportunity for cross-examination at the preliminary hearing, we consider the following factors: 1) the motive and purpose of the cross-examination, 2) whether any restrictions were placed on Nofoa’s cross-examination during the preliminary hearing, and 3) whether Nofoa had access to sufficient discovery at trial to allow for effective cross-examination of CW.

According to the HSC, the first two factors pointed toward admissibility. Nofoa’s motive was to discredit the CW at the preliminary hearing. This was significantly similar to the motive at trial—discredit the CW’s credibility. Secondly, there appeared to be no real restriction on the cross-examination of 21 pages of testimony.

The third factor, however, was strong enough to weigh against admissibility. Nofoa did not have access to all of the discovery that would have assisted him in crossing the CW. The only materials it had was the JDPC and the complaint. Nofoa lacked the CW’s multiple statements, the recorded interview, and a police report with memorializing an oral statement. Moreover, there were real discrepancies in these statements. This amounted to a deprivation of a meaningful opportunity to cross-examine the CW and the preliminary hearing testimony should never have been admitted at trial.

The 911 Call was Admissible. The HSC rejected Nofoa’s claim that the 911 recording from the gas station should never had been admitted. An excited utterance is a hearsay exception. HRE Rule 803(b)(2). To meet this exception, the proponent must show that “(1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling report or condition.” State v. Machado, 109 Hawaii 445, 451, 127 P.3d 941, 947 (2006). Nofoa claims that the prosecution failed the second prong. The HSC disagreed. The statement was not the product of reflective thought and was adequately part of the startling event.

And not Prohibited by the Confrontation Clause. The HSC also rejected Nofoa’s claim that the statement in the 911 call violated the Confrontation Clause. The Confrontation Clause only prohibits the admission of “testimonial” statements. State v. Fields, 115 Hawaii at 516, 168 P.3d at 968. A statement is “nontestimonial” when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. Testimonial, however, is a statement that is not given during an emergency and its primary purpose “is to establish or prove past events potentially relevant to later criminal prosecution.” Id. According to the HSC, the CW’s statement in the 911 call was clearly non-testimonial because “any reasonable listener” would figure she “was facing an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 827 (2006).

Now that the statement is non-testimonial, the two-part test in Ohio v. Roberts, 448 U.S. 56 (1980), determines its admissibility. The non-testimonial, out-of-court statement is admissible when (1) the declarant is unavailable and (2) the statement “bears some indicia of reliability.” Fields, 115 Hawaii at 528, 168 P.3d at 980. Again, the CW is unavailable/dead. Secondly the statement is reliable because it falls within a firmly-rooted hearsay exception. See State v. Sua, 92 Hawaii 61, 71, 987 P.2d 959, 969 (1999).

Is an Excited Utterance Always Going to be Non-Testimonial? This last part on the 911 test is a perfect example of the flow-chart analysis set up in Fields. It took a while, but we finally get to see it at work. And stepping back, if the HSC has already held that it is an excited utterance, wouldn’t it be extremely difficult to do an about-face and hold that this excited utterance is testimonial (i.e., a reasoned statement that was not in the face of an emergency)?