Precluding Cross-Examination of Former Marine About Violating Code of Conduct Requires New Trial

State v. Miranda (HSC June 4, 2020)

Background. Alexander Miranda was charged with assault in the second degree. The complainant was David Metts. Before trial, Miranda wanted to present evidence of a photographic still of video surveillance of a sidewalk where the incident occurred. The prosecution objected and argued that if the photograph comes in, it would be allowed to present officer testimony describing the surveillance footage itself. (The footage was destroyed.) The circuit court, presided by Hon. Judge Dexter Del Rosario, agreed with the prosecution.

At trial, the prosecution called Samuel Wight. Wight testified that one night in Waikiki, he heard yelling and cursing. He saw on the street three men yelling at two. Miranda was the tallest in the trio and he was yelling at Metts. Wight testified he saw Miranda uppercut Metts, heard a cracking sound, and saw Metts spit up blood. The prosecution also presented evidence that Metts had a broken jaw.

Metts testified. Metts told the jury he was enlisted in the United States Marine Corps at the time of the incident and was at a bar in Waikiki with Casey Smith, another marine. He testified he had no more than three drinks at the bar and was not drunk. They left the bar and encountered Miranda and two other men on the sidewalk. Metts testified that as they passed the trio, he was “shoulder bumped.” He turned around and saw the trio looking back at them. one of the men was “forehead to forehead” with Smith, whose shoulder was in a sling. Metts testified that he was struck in the face and his mouth was filled with blood. He testified he never touched Miranda or any of his friends.

On cross-examination, Metts was confronted with inconsistent statements he made to the investigating officers. Metts acknowledged that he told a detective that he had shoved someone in the incident. He also told the police he was struck twice by the same person. He was still unsure who out of the trio actually hit him.

Defense counsel then moved on to cross-examine Metts about being a marine. Metts testified that the code of conduct for the Marine Corps prohibits him from getting “overly drunk and mak[ing] a fool of yourself.” Counsel asked Metts what the consequences were for violating that part of the code, but the prosecution’s objection for relevance was sustained.

At a bench conference, counsel explained the need for the evidence. It went to Metts’ bias and motive. The prosecution countered that Metts was no longer a marine so the bias, interest, or motive was gone. The trial court again sustained the objection because there was no evidence that Metts had been drunk.

Counsel moved on to ask Metts about the Marines’ code of conduct with regard to fighting. The prosecution objected without stating any reason and it was sustained. Counsel ended the inquiry there.

Miranda testified. He and two of his friends were enlisted in the U.S. Army stationed on Oahu. That night they were walking to the ABC store in Waikiki when one of his friends was teasing him about an ex-girlfriend that used to live nearby. Miranda testified that Metts and Smith started to challenge them to a fight. Miranda said that it was one his friends that was in Metts’ face. He testified that Metts shoved and grabbed his friend. Miranda intervened and Metts turned his attention to him. Miranda said he punched Metts in self-defense. During his testimony, counsel sought to introduce the photograph of the surveillance video. At a bench conference, the prosecution argued that if he did that, it would call the officer to testify about the contents of the video footage. The court again agreed. Counsel went ahead an moved the photograph into evidence.

The prosecution on rebuttal called one of the investigating officers. Miranda objected, but the prosecution argued that Miranda “opened the door.” The circuit court agreed and allowed the rebuttal evidence.

Officer Arthur Gazelle testified that there was video surveillance at the ABC store where the incident occurred. He told the jury that he watched the surveillance footage and testified that it appeared to him that Miranda seemed to be “calling out Metts and Smith.” Miranda’s body language suggested that he had “moved forward” and he and his friend had “clenched fists” while Metts and Smith were putting their hands up which indicated that they were not looking for trouble. Officer Gazelle said that it looked to him that Miranda advanced toward Metts and threw a punch at him. He testified that bystanders intervened and thirty seconds later, he saw Miranda go back and punch Metts before walking away.

The jury convicted Miranda and he was sentenced to probation. Miranda appealed and the ICA affirmed. The HSC accepted his writ of certiorari.

The Right to Confrontation and the Right to Cross-Examine. The Sixth Amendment to the U. S. Constitution and Article I, Section 14 of the Hawai'i Constitution guarantee the accused the right to confront prosecution witnesses. State v. Balisbisana, 83 Hawai'i 109, 115, 924 P.2d 1215, 1221 (1996). The “main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination . . . [and] the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross examination” Id. The “credibility of a witness may be attacked by evidence of bias, interest, or motive.” Hawai'i Rules of Evidence (HRE) Rule 609.1(a). And so evidence of “bias, interest, or motive is always relevant[.]” State v. Levell, 128 Hawai'i 34, 40, 282 P.3d 576, 582 (2012).

. . . and HRE Rule 403. According to the HSC, after reviewing a long history of cases, the question “when reviewing an alleged violation of a defendant’s constitutionally protected right to demonstrate bias or motive is whether the trier of fact had sufficient information, including as to is source, from which to make an informed appraisal of the witness’s potential motive and bias.” See State v. Acacio, 140 Hawai'i 92, 100-101, 398 P.3d 681, 689-690 (2017); State v. Brown, 145 Hawai'i 56, 61-62, 446 P.3d 973, 978-979 (2019). Once the defendant is given the “threshold level of inquiry under the confrontation clause, the trial court may conduct a balancing test to weigh the probative value of any additional motive evidence against its potential for undue prejudice.” Acacio, 140 Hawai'i at 99, 398 P.3d at 688.

Precluding any Cross-Examination about Consequences for Violating the Marine Code of Conduct Violated the Confrontation Clause. In this case Metts testified that he was drinking at a bar, but was not drunk and that he wasn’t fighting. The trial court prevented the defense from questioning Metts about the consequences he faced if he violated the Marines’ code of conduct about drunkenness and fighting. Counsel was trying to establish a bias or motive to be untruthful about these statements. The source of the motive was Metts’ awareness of the consequences for violating the code of conduct. The trier of fact in this case did not hear any evidence about this possible motive and without knowing what Metts knew or believed about the consequences, the jury was not presented with the “source” of his potential bias. In other words, it did not have enough evidence to make an informed appraisal of Metts’ motives and biases. The HSC held that this is error. The HSC held that the threshold level of inquiry was not met. Therefore, it did not go into a 403 analysis.

Not a Harmless Error. Having found a confrontation clause violation, the HSC examined if it was harmless beyond a reasonable doubt. “In applying the harmless beyond a reasonable doubt standard the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Acacio, 140 Hawai'i at 102, 398 P.3d at 691. The HSC noted “several factors” to consider in assessing when a violation of the right to impeach a witness is harmless: the importance of the witness testimony, whether the testimony was cumulative, the presence or absence of corroborating evidence or contradicting evidence on material points, the extent of other cross-examination, and, the overall strength of the prosecution’s case. Id.

The HSC here held that the error was not harmless beyond a reasonable doubt.

Defense did not “Open the Door” about Surveillance Video. The doctrine of “opening the door” is one of expanded relevancy. State v. Lavoie, 145 Hawai'i 409, 422, 453 P.3d 229, 242 (2019). It has been also called “curative admissibility” or “fighting fire with fire.” State v. Fukusaku, 85 Hawai'i 462, 497, 946 P.2d 32, 67 (1997). Under this doctrine, when one party presents inadmissible evidence, the opposing party is allowed to present pertinent evidence that would otherwise be inadmissible in order to rebut the improperly introduced evidence. State v. Lavoie, 145 Hawai'i at 422, 453 P.3d at 242. The HSC has never expressly adopted this doctrine. Id. It’s also a very limited doctrine. Even if it was adopted, it does not allow a party to present inadmissible evidence for the purpose of rebutting inferences raised by the introduction of admissible evidence. Id. at 422-423, 453 P.3d at 242-243.

Here, the HSC again declined adopting the doctrine. Miranda wanted a photograph to show the scene at the time of the incident. This did not open the door to Officer Gazelle’s testimony. The HSC noted that “a photograph of the scene should be admitted so long as a witness who is familiar with the scene and competent to testify verifies the photograph as an accurate representation of the scene at the time in question.” See Territory v. Hays, 43 Haw. 48, 65 (Terr. 1958). The testimony should not have come in on rebuttal.

Never mind the Best Evidence Rule? The prosecution maintained that even if the door was not open, the testimony was still admissible under the best evidence rule. “The original or duplicate is not required, and other evidence of the contents of a writing, record, or photograph is admissible . . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” HRE Rule 1004. Testimony can serve as a duplicate of the original under this rule. State v. Espiritu, 117 Hawai'i 127, 135, 176 P.3d 885, 893 (2008). The HSC agreed that the prosecution met the requirements of the best evidence rule.

HRE Rule 403 Should have Kept it out too. But what was missing below was a 403 analysis. Relevant evidence may be excluded when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403 applies to “all evidence.” State v. Plichta, 116 Hawai'i 200, 231 n. 15, 172 P.3d 512, 543 n. 15 (2007) (Acoba, J. dissenting).

 According to the HSC, a critical determination in deciding on whether to admit the testimony of the officer was whether the probative value was substantially outweighed by its danger of unfair prejudice—that is, “an undue tendency to suggest decision on an improper basis, commonly, through not necessarily, an emotional one.” HRE Rule 403 cmt.

 Officer Gazelle testified about the contents of a four-minute video he saw once two years before testifying. He admitted that he had been rushed when he watched it and was not in control of rewinding, fast-forwarding, pausing, or stopping. The HSC held that Officer Gazelle’s testimony amounted to “an eyewitness account by a law enforcement officer of the entirety of the incident, potentially raising concerns that the evidence would be unfairly prejudicial.” Not only that, there is no indication that Miranda or his counsel had a chance to watch the video before it was destroyed. There was no effective means to fact-check Officer Gazelle’s recollection of what the video depicted. On remand, the HSC urged the trial court to evaluate the admissibility of the officer’s testimony.