422 P.3d 18 (Hawai‘i 2018), SCAP-14-0000935, State v. Austin

• Docket Nº: SCAP-14-0000935
• Citation: 422 P.3d 18, 143 Hawai‘i 18
• Party Name: STATE of Hawai‘i, Plaintiff-Appellee, v. Gerald L. AUSTIN, Defendant-Appellant.
• Attorney: William H. Jameson, Jr. (Craig W. Jerome with him on the briefs) for defendant-appellant. Donn Fudo, Honolulu, for plaintiff-appellee.
• Judge Panel: RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. POLLACK, J. WILSON, J., AND JOINING PART I OF THE OPINION OF POLLACK, J.
• Case Date: June 29, 2018
• Court: Supreme Court of Hawai'i

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422 P.3d 18 (Hawai‘i 2018)

143 Hawai‘i 18

STATE of Hawai‘i, Plaintiff-Appellee,

v.

Gerald L. AUSTIN, Defendant-Appellant.

No. SCAP-14-0000935

Supreme Court of Hawai‘i

June 29, 2018

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000935; CR. NO. 12-1-0127)

William H. Jameson, Jr. (Craig W. Jerome with him on the briefs) for defendant-appellant.

Donn Fudo, Honolulu, for plaintiff-appellee.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.¹

OPINION OF THE COURT EXCEPT AS TO PART III (D)(3) AND OPINION OF NAKAYAMA, J., AS TO PART III (D)(3), IN WHICH RECKTENWALD, C.J., JOINS

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[143 Hawai‘i 23] Defendant-Appellant Gerald L. Austin (Austin) appeals the judgment of the Circuit Court of the First Circuit (circuit court) convicting him of murder in the second degree and sentencing him to an extended sentence of life imprisonment without the possibility of parole. On appeal, Austin asserts five points of error: (1) the circuit court abused its discretion in allowing Plaintiff-Appellee State of Hawai‘i (the State) and its witnesses to refer to Edith Skinner (Skinner) as the "victim" or "murder victim" at trial; (2) the circuit court erred in excluding the statements of Anne Wanous (Wanous) as hearsay; (3) the circuit court erred in refusing to instruct the jury on the lesser included offenses of manslaughter and assault; (4) the circuit court erred in denying Austin’s motion for a new trial because the prosecutor engaged in several acts of misconduct during closing arguments; and (5) the circuit court erred in sentencing Austin to an extended sentence of life imprisonment without the possibility of parole in violation of the ex post facto clause of the United States Constitution and Hawai‘i Revised Statutes (HRS) § 1-3.

For the reasons discussed below, we agree that Austin’s extended sentence of life imprisonment without the possibility of parole violated the ex post facto clause of the United States Constitution and HRS § 1-3. But, we conclude that Austin’s other points of error do not warrant vacating his conviction. Therefore, we affirm in part and vacate in part the circuit court’s June 18, 2014 Judgment, Guilty Conviction, and Sentence and remand the case to the circuit court for resentencing.

I. BACKGROUND

Skinner was born on April 16, 1908, and was eighty-one years old at the time of her death in 1989. Skinner did not have any family in Hawai‘i, but she had a son, Stephen Skinner, who lived in California and with whom she spoke every weekend. Skinner had several close friends and enjoyed baking, playing bridge, and swimming at the Elks Club.

Skinner lived alone in Apartment 706 at the Makua Ali‘i Senior Center located at 1541 Kalā kaua Avenue, which was generally restricted to low-income tenants over the age of sixty-two. In 1989, the building was secured by an interphone system whereby visitors would call the apartment that they wanted to visit and the resident could let them in. Upon entering the building, visitors could access any floor they wanted.

On the afternoon of July 25, 1989, Skinner’s body was discovered in her apartment after two neighbors noticed that she had not picked up the newspaper from her front door and that she did not respond when they rang her doorbell. Her body was found lying on top of the bed. The bed did not have any pillows, blankets, sheets or comforters on it. The apartment was well-kept, and there were no obvious signs that a struggle or an altercation had taken place.

During his investigation of Skinner’s death, Honolulu Police Department (HPD) Detective Kenneth Ikehara (Detective Ikehara) canvassed the Makua Ali‘i building for witnesses and interviewed several of Skinner’s neighbors. Pursuant to these efforts, on July 26, 1989, Detective Ikehara spoke to Wanous and took her recorded statement. Wanous’s mother lived in the unit next to Skinner’s, and Wanous was visiting on the date of the incident.

In her recorded statement, Wanous stated that she woke up at approximately 4:50 a.m. or 5:00 a.m. on the morning of July 25, 1989 to smoke a cigarette at a chair and table located "right outside [her] mother’s apartment door." Wanous related that she was "leaning forward" and smoking the cigarette when she heard the sound of "something dropping." Upon hearing the noise, Wanous looked to the right and saw a black^[2] male

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[143 Hawai‘i 24] carrying two stuffed pillow cases leave Skinner’s apartment. Wanous averred that she saw the man near the door to Skinner’s apartment for about three to five seconds before he turned and walked into the elevator.

Wanous stated that when she observed the man, the corridor lights were on, but it was still dark out and there was no sunlight. Wanous noted that although she "seen the [man’s] arms was black," she "couldn’t make out" the man’s face "because it was just one color all the way." She also stated that when the man briefly turned towards her, she could see "the whites of his eyes" but "couldn’t see anything else." When asked by Detective Ikehara if Wanous could tell what the suspect’s race was, Wanous responded that the suspect was "black," but further related an unknown individual had "corrected" her to say "negro." Upon being asked about the suspect’s "complexion," Wanous rejected the idea that the suspect was "black, black" and instead described that the suspect was "dark." Wanous opined that she was not sure if she would be able to recognize the man if she saw him again.

Wanous also discussed a few sketches of the suspect she had drawn on a paper bag, which she had given to Detective Ikehara. She stated that a "feeling" helped guide her as she sketched: [Wanous:] So I was told this is wrong.

[Detective Ikehara:] Who, what do you mean? This looks wrong, just tell me.

[Wanous:] It’s a feeling that come to me.

[Detective Ikehara:] Feeling that came to you, okay. So this drawing is what, of the guy that you saw?

[Wanous:] I think I saw.

[Detective Ikehara:] Okay.

[Wanous:] Something kept telling me, sketch it, sketch it, sketch it, you know, I’ m not a very good artist, but this, sketch it, sketch it, (inaudible) sketch it.

Detective Ikehara then attempted to clarify what Wanous meant: [Detective Ikehara:] Well, and that just, you just decided something was telling you to do, draw this?

[Wanous:] Yeah, you know, did that.

[Detective Ikehara:] Okay.

[Wanous:] Help my hand and sort of did that, guided like.

[Detective Ikehara:] And that’s on the second drawing?

[Wanous:] Yes.

Also on July 26, 1989, Wanous met with police sketch artist Joe Aragon (Aragon) to prepare a composite drawing of the suspect before Detective Ikehara took her recorded statement. When Detective Ikehara asked Wanous if she could state that the suspect looked like the composite drawing she helped create, she said "[n]o." She only confirmed that the sketch matched her descriptions of the suspect’s hair, eyes, and facial shape.

On July 26, 1989, Detective Ikehara obtained a written statement from Wanous’s sister, Orchid Ah Loy (Ah Loy), in which she stated that Wanous’s other sister, Yvonne Clason (Clason), had told her (Ah Loy) that Wanous had told Clason that she saw a black male exit Apartment 706 "on either Monday, 7-24-89, or Tuesday, 7-25-89, at about 0530 hours," and that the man "was carrying a pillow case." The next day, Detective Ikehara took the recorded statement of Karen Evenson (Evenson), Wanous’s niece, wherein she stated that Wanous "told her that a black male carrying pillow cases had exited unit #706 at about 0530 hours, Tuesday, 7-25-89."

On July 26, 1989, Dr. Kanthi De Alwis (Dr. De Alwis) performed an autopsy on Skinner’s body. Dr. De Alwis determined that the cause of death was asphyxia due to manual strangulation. Dr. De Alwis further testified that she recovered a "black or darker-colored" pubic hair that stood out amongst Skinner’s light-colored hair, which she preserved as evidence. Dr. De Alwis also took samples of fluid found in the decedent’s vagina, the testing of which revealed the presence of recently deposited semen.

On August 3, 1989, Detective Ikehara submitted a draft of a crime information bulletin. The composite drawing that Wanous and Aragon had created was not submitted with the crime information bulletin based upon Aragon’s opinion that the drawing did not reflect an accurate description of the suspect, as

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[143 Hawai‘i 25] Wanous was not able to sufficiently describe enough elements of the suspect’s facial features. Copies of the crime information bulletin were subsequently printed and distributed.

On September 21, 1989, Allyson Simmons (Simmons), an examiner in the Hair and Fibers Unit in the Fedural Bureau of Investigation laboratory located in Washington D.C., received a parcel containing the dark-colored pubic hairs that Dr. De Alwis had collected from Skinner’s body. Then, on January 26, 1990, Simmons received another parcel containing samples of Skinner’s pubic hairs. Simmons testified that following a microscopic examination of the darker-colored hairs, she determined that the hairs were "brown Caucasian pubic hairs that were suitable for comparison purposes." Further, Simmons attested that a microscopic comparison of the "brown Caucasian pubic hairs" with samples of Skinner’s pubic hairs revealed that the "brown Caucasian pubic hairs" were "dissimilar" to Skinner’s pubic hairs.

In October 1991, Wanous passed away.

Additional testing conducted in 2005 on the fluid samples collected from Skinners body revealed that the samples contained a mixed DNA...