Defense Evidence that Another Person Committed the Crime is Relevant, but Can't Come from that Other Person

State v. Kato (HSC June 18, 2020)

Background. Yoko Kato was charged with attempted murder in the second degree. The complainant was a Japanese national who testified at trial she was living in Hawai'i to study English. She started dating David Miller. Without a place to live, Miller arranged to have the complainant stay with Kato, his ex-girlfriend. The complainant eventually broke up with Miller and moved out.

The complainant later received an invitation from Ai Akanishi to meet up for drinks. They agreed to meet at Akanishi’s boyfriend’s house. The complainant rode there and got there at around 9:45 p.m. A man was sitting on a bench and directed her to park the bicycle in a dark corner. It sounded like his Japanese wasn’t very good. While she did that, the man stabbed her multiple times in the arm, back, and abdomen with a knife. She screamed and started to run. She ran into the Diamondhead Coffee Bean and Tea Leaf shop, where employees called the police. She was taken to the hospital.

The complainant told the police that her assailant was wearing a short-sleeved shirt, pants, and a baseball hat. He had brown-colored arms and neck and looked Asian. She told the police he was 5’9’’. She later said her assailant might have been female.

A neighbor saw the man chasing the complainant and fall. She testified at trial that she went to investigate and discovered a flip phone. She opend the phone and saw a call had been made to someone named “David.” She called the contact and a man offered to pick up the phone in 30 minutes. The neighbor testified that Kato approached her twenty minutes later and asked for the phone, but the neighbor refused and gave it to the police.

A woman identified herself to the police as “Yuri Mochizuki” and claimed the phone. She unlocked its password and the police gave it back to her. Yui Mochizuki, Kato’s roommate, testified for the prosecution. She said that she saw Miller at the apartment drinking beer with Kato earlier that night. Mochizuki left the apartment and went to a party. She returned at around 1:30 a.m. and Kato told her that she lost her phone. Kato told Mochizuki that she found an envelope with $60 and written instructions about where to get her phone back. She followed them, which lead to the Coffee Bean and Tea Leaf shop in Diamond Head. When she got there, someone pushed her and she fell. Kato said she heard a scream. She also testified that Miller’s Japanese was poor.

Kato called Miller as a witness. Miller testified that he had dated the complainant and they were living together. She moved out later and their relationship ended soon after that. Kato tried to ask Miller if he knew whether the complainant was seeing other men. The prosecution objected.

Kato argued that she wanted to show that Kato had no motive to stab the complainant, but Miller did. Kato’s counsel argued that Miller wanted to marry the complainant and he was angry that she broke up with him and started dating other guys. This was Miller’s motive to kill. The prosecution objected. The circuit court, with the Hon. Judge Karen Ahn presiding, sustained the objection.

The circuit court prevented Kato from eliciting testimony that Miller was jealous, saw the complainant dating other men, and knew that she telephone numbers of men in her phone. The circuit court explained that pursuant to

State v. Rabelizsa, 79 Hawai'i 347, 903 P.2d 43 (1995), there needs to be a sufficient nexus linking Miller to the crime and that nobody saw him at the scene and nobody testified that the assailant was Caucasian (Miller’s Caucasian). Kato countered that there was some testimony that the complainant told the police that her assailant was Caucasian. The circuit court remained unconvinced.

Kato also wanted to question Miller about prior incidents in which Miller was arrested for physically abusing Kato, but was not charged because, according to Kato, Miller forced her to recant her statements to the police in a letter. Kato also wanted to question Miller about prior threats he made to Kato, which were in violation of a temporary restraining order served on Miller at the time. Miller with his court-appointed attorney asserted his Fifth Amendment right against self-incrimination and refused to answer the questions. The circuit court found that the privilege did apply and would not let Kato question Miller about these matters.

At trial, Kato questioned Miller if he saw the complainant with other men. Miller’s lawyer for the first time stated that Miller would not answer these questions pursuant to the Fifth Amendment. The circuit court agreed and would not let Kato question Miller about “motive related questions” because his answers could incriminate him. The circuit court went further and struck Miller’s prior trial testimony.

The circuit court also instructed the jury about accomplice liability. The jury sent a note during deliberation asking for clarification:

After deliberating yesterday afternoon and all morning, we are still hung almost 50/50. One major point of confusion is how we interpret the legalese of the charge itself on page 23 of our instruction. Some of us feel that [Kato] is not guilty because there is reasonable doubt whether [Kato actually held the knife and stabbed [the complainant.] Others feel that there is proof beyond a reasonable doubt that [Kato] took actions to lead [the complainant] to Kaunaoa St. where someone was waiting to stab [the complainant].

Our question is, in layman’s terms, does the charge include [Kato] intentionally conspiring to have [the complainant] stabbed without actually being the stabber?

The circuit court responded, “no.”

Kato was found guilty of reckless endangering in the second degree. She was sentenced to one year jail, but it was stayed pending appeal. The ICA affirmed.

Third-Party Culpability is Governed by the Hawai'i Rules of Evidence. When the proponent of evidence showing that a third party may be culpable of the offense, there must be some “nexus between the proffered evidence and the charged crime.” State v. Rabellizsa, 79 Hawai'i 347, 350, 903 P.2d 43, 46 (1995). A third party’s motive to commit the crime “must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense.” Id. There must be a “legitimate tendency that the third person could have committed the crime.” Id. The Rabellizsa court relied on courts from other jurisdictions for this heightened nexus between the charged offense and the proffered evidence.

The HSC here has re-examined the “legitimate tendency” test after twenty-five years. It noted that nearly all of the decisions underlying the holding in Rabellizsa have been either clarified or modified in those jurisdictions. Moreover, it reassessed and rejected the justification in Rabellizsa that the “legitimate tendency” test comports with the HRE.

“Any Tendency” is not the Same as a “Legitimate Tendency.” The “basic precondition for admissibility of all evidence is that it is relevant as that term is defined in HRE Rule 401. Medeiros v. Choy, 142 Hawai'i 233, 245, 418 P.3d 574, 586 (2018). Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” HRE Rule 401.

The HSC held that a test requiring a “legitimate tendency” exceeds the “any tendency” standard in HRE Rule 401 and is, therefore, “not fully consistent with the Hawai'i Rules of Evidence.” The HSC held that “the threshold for admissibility of third-party culpability evidence should be understood as applying the same relevancy test that is applied for all other evidence, whether it is offered by the State or by the defendant.” And so when a defendant seeks to introduce evidence that another person committed the crime, the only initial hurdle is the one set by HRE Rule 401.

Applying HRE Rule 401 and only that rule to the proffered evidence here, the HSC held that Kato’s evidence was relevant. There was enough in the record to infer that Miller was in contact with Kato after the complainant was stabbed. Kato’s evidence that Miller wanted to marry the complainant and that he did not want the relationship to end and the evidence that Miller knew the complainant had other men’s numbers in her phone and having sex with other men was relevant too.

Once Relevant, there’s Still 403 Balancing. Once the evidence is found relevant, it may still be inadmissible if it 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. The HSC held that the probative value that Miller might have stabbed the complainant is not substantially outweighed by unfair prejudice.

The HSC cautioned trial courts when weighing third-party culpability evidence. Excluding the defendant’s evidence that another person committed the crime simply because the prosecution’s evidence shows no other culprit deprives the defendant of the right to have a “meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 329 (2006).

The Fifth Amendment Issue with Third-Party Culpability. “[N]p person shall . . . be compelled in any criminal case to be a witness against oneself.” Art. I, Sec. 10 Haw. Const. See also U.S. Const. Am. V. The privilege against self-incrimination does not protect against “remote possibilities [of future prosecution] out of the ordinary course of law,” but is “confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” State v. Kupihea, 80 Hawai'i 307, 313, 909 P.2d 1122, 1128 (1996). The privilege “extends not only to answers that would in themselves support a conviction, but to those that would furnish a link in the chain of evidence needed to prosecution.” Id.

The HSC held that the circuit court did not abuse its discretion in analyzing the Fifth Amendment privilege. Miller invoked the privilege because he could still have been prosecuted for abusing Kato and violating the TRO. Miller’s other answers also “lead directly” to arranging the stabbing itself.

Justice Nakayama’s Dissent. Justice Nakayama disagreed in rejecting the “legitimate tendency” test. According to her, “third-party motive evidence is irrelevant unless there is some evidence connecting the third person to the commission of the offense.” Justice Nakayama disagreed that Rabellizsa raises the bar on relevant evidence. The fact that another person had a motive to commit the offense does not in and of itself make a fact of consequence more or less likely. For Justice Nakayama and the cases in other jurisdictions that have adopted the legitimate-tendency test, something more is needed.

She wrote that this test furthers two important purposes. First, it excludes speculative evidence. A link, connection, or nexus between the evidence and the crime ensures that nothing too remote in time and place is presented. Second, it also allows the jury to focus on the issues at trial, not collateral matters. Justice Nakayama found no error here and would have upheld the Rabellizsa rule. Chief Justice Recktenwald joined.


Comments

Popular posts from this blog

HSC Extends Right to Counsel (and a Deadline) in Proceedings Before the HSC

Police Officers Can't Testify if the Driver was "Intoxicated" in Drunk Driving Trials

Officer’s False Testimony Prompts New Trial Even Though it did not Pertain to the Defendant’s Guilt