Sidebars are Part of the Trial Too (So the Defendant gets to Stand There)

State v. Hilario (ICA April 19, 2017)
Background. Vincente Kotekapika Hilario was convicted and sentenced for murder in the first degree and bribery of a witness. The case begins with Aureo Moore’s shooting near Anahola Beach Park on Kauai. Moore was the complainant for a robbery in the Safeway Parking Lot in Kapaa earlier that year.

Hilario was suspected of being the driver in the Safeway robbery. Hilario and another man named Kyle Akau were arrested for the Safeway robbery. The police found a backpack near Akau containing a camping permit, timecards, a paycheck stub, hotel receipts with Hilario’s name on it, two pistols, and 125 Oxycodone pills. After the robbery, there was evidence from Pua Crawford who testified that Hilario had been trying to arrange a meeting with Moore and had encouraged folks to say he wasn’t part of the Safeway robbery. Crawford eventually arranged the meeting with Moore at Anahola. She saw Hilario there, who told her that if anyone asked she never saw him. Other witnesses testified that on that evening, Moore was shot to death. The shooting took place ten days before Hilario faced trial in the Safeway robbery.

The circuit court ruled before the murder trial that Moore’s testimony at the preliminary hearing would be admitted for the purpose of showing a motive to kill Moore. Hilario was found guilty of murder and bribery of a witness. He appealed.

The Right to be Present Includes Sidebar-Voir Dire. “The defendant shall be present at the arraignment, at the time of the plea, at evidentiary pretrial hearings, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this Rule.” HRPP Rule 43(a).

This rule codifies the Confrontation Clause and Due Process guarantees of the defendant’s presence at trial. State v. Okumura, 58 Haw. 425, 427, 570 P.2d 848, 851 (1977). In this case, the circuit court instructed the parties that it would hold jury selection at a sidebar in a bench conference. That meant that the attorneys, a prospective juror, and the judge would hui together in front of the judge. At the conference, the prospective juror would raise any objection he or she felt about participating in the case. The attorneys and the judge would also conduct examination of the juror from the bench. Hilario did not join in the conference. He sat at counsel table.

The ICA held that this procedure violated HRPP Rule 43. The rule requires the defendant’s presence “at every stage of the trial including the impaneling of the jury.” Although he was physically present, the ICA reasoned that from counsel table he was unable “to hear what is said or observe the facial expressions of the person being examined during these proceedings.” According to the ICA, it frustrated the purpose of HRPP Rule 43. The ICA also found support in its holding from federal interpretations of a similar court rule. United States v. Cuchet, 197 F.3d 1318, 1319-1320 (11th Cir. 1999); United States v. Ford, 88 F.3d 1350, 1369 (4th Cir. 1996).

. . . But you Gotta Object. And like the federal cases, the ICA noted that this rule is not absolute and would be waived if the defense does not raise an objection to the procedure. Here, the defense did raise this objection at the start of trial.

. . . And it Can’t be Harmless. The ICA also held that even though there is a violation of HRPP Rule 43, it is still subject to the harmless beyond a reasonable doubt standard. State v. Pauline, 100 Hawaii 356, 378, 60 P.3d 306, 328 (2002). Given the number and length of the sidebars in this trial, the ICA could not conclude it was harmless. Moreover, the discrepancies in the eyewitnesses, the denial of the charges, and Hilario’s consistent position that he was somewhere else at the shooting established that the evidence was not overwhelming. And so, the ICA vacated and remanded the case for a new trial.

The Safeway Robbery Evidence is Still Coming In. The ICA also examined if the trial court erred in presenting evidence of the Safeway robbery. This evidence, according to the ICA, was relevant to establishing motive to commit the murder and bribe witnesses. See HRE Rule 404(b).


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