Confront Away, Counsel

State v. Brown (HSC July 25, 2019)
Background. Walter Brown was charged with assault in the second degree. The charges stemmed from a fight with his adult daughter. The complainant was also charged with assaulting Brown’s wife (her stepmother). Before trial Brown filed an intent to present evidence that his daughter had been violent, disruptive, and dangerous in the past. The evidence included the fact that she was charged with harassment, terroristic threatening in the second degree—which was later amended to harassment pursuant to a plea agreement, abuse of a family or household member—which was later amended to assault in the third degree, and that she was on probation. Brown also wanted to present evidence that she was charged with assaulting Brown’s wife. The prosecution objected by filing a motion in limine.

The Hon. Judge Edward Kubo granted the motion in part. The circuit court would not admit evidence that the complainant was facing assault charges against Brown’s wife and that she was on probation. The circuit court did allow the defense to present two past acts—but not three on the grounds that it would be more prejudicial than probative.

At trial, the complainant testified that she, her sister, stepmother, and father all met at a restaurant in Honolulu. She testified that when Brown and his wife arrived, he approached them, grabbed them, and pushed them out of the restaurant. That caused her to fall. A fight started and the complainant testified Brown punched, kicked, and stepped on her. She testified that she fought back in self-defense. She denied hitting Brown’s wife. The sister corroborated the complainant.

          The complainant was cross-examined about two prior incidents and admitted to pleading guilty to assault in the third degree and harassment for threatening Brown’s wife. She was also confronted about a Facebook post in which she bragged about fighting her. The prosecution called another witness testified that Brown punched the complainant in the chin.

          Brown testified. His version was very different. He testified that the complainant was the initial aggressor and that she slipped and fell.

Brown was found guilty of assault in the second degree. He appealed and the ICA affirmed.

The Right to Confront Witnesses is more than some Cross. “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]” Haw. Const. Art. I, Sec. 14; see also U.S. Const. Am. VI. This “right to confront a witness is not satisfied simply by any cross-examination, but instead, . . . the cross-examination must be sufficient and meaningful.” State v. Nofoa, 135 hawaii 220, 231, 349 P.3d 327, 338 (2015). Included in this right is the right to present to the trier of fact that the witness is biased and, therefore, unreliable. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).

Moreover, “[t]he credibility of a witness may be attacked by evidence of bias, interest, or motive.” HRE Rule 609.1(a). This evidence is relevant if “it has any tendency to support an inference of the witness’s disposition or tendency, consciously or unconsciously, to slant testimony one way or the other, from the straight and true.” State v. Acker, 133 Hawaii 253, 299, 327 P.3d 931, 977 (2014).

The HSC held that the circuit court infringed upon Brown’s confrontation rights when it prohibited him from cross-examining the complainant about the pending charges and the fact that that she was on probation. This evidence, according to the HSC, was evidence of bias or motive. The fact that there were pending criminal charges “deprived the jury of evidence that she had an interest to shape her testimony against Brown to avoid punishment and to prevent the possible revocation of her probation.”

The Error here was not Harmless Beyond a Reasonable Doubt. Violating the right to impeach a witness for bias, interest, or motive requires a new trial when the records shows “a reasonable possibility that the error . . . might have contributed to the conviction. State v. Acacio, 140 Hawaii 92, 98, 398 P.3d 681, 687 (2017). The HSC held that there was a reasonable possibility. The most important eyewitness for the prosecution was the complainant. She was facing charges herself and was on probation. She might have believed that presenting testimony that Brown was the initial aggressor would “lessen the likelihood the prosecution would pursue the pending charge against her.”

Justice Nakayama’s Dissent. Justice Nakayama dissented on the HSC’s harmless error analysis. She did not provide a separate opinion about the Confrontation Clause because at oral argument, that point was conceded by the prosecution. In her view, the error was harmless. Justice Nakayama pointed out that the prosecution presented two witnesses—a third-party and the complainant’s sister—who corroborated the complainant. “This leads me to conclude that there was no reasonable possibility that the circuit court’s error might have contributed to Brown’s conviction[.]” Chief Justice Recktenwald joined in the dissent.


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