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422 P.3d 18 (Hawaii 2018)
143 Hawaii 18
STATE of Hawaii, Plaintiff-Appellee,
v.
Gerald L. AUSTIN, Defendant-Appellant.
No. SCAP-14-0000935
Supreme Court of Hawaii
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
Page 23
[143
Hawaii 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 Hawaii (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 Austins
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 Hawaii Revised Statutes
(HRS) § 1-3.
For the
reasons discussed below, we agree that Austins 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 Austins other points of error do not warrant vacating
his conviction. Therefore, we affirm in part and vacate in
part the circuit courts 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 Hawaii, 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 Alii
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, Skinners 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 Skinners death, Honolulu Police
Department (HPD) Detective Kenneth Ikehara (Detective
Ikehara) canvassed the Makua Alii building for witnesses and
interviewed several of Skinners neighbors. Pursuant to these
efforts, on July 26, 1989, Detective Ikehara spoke to Wanous
and took her recorded statement. Wanouss mother lived in the
unit next to Skinners, 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] mothers 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 Hawaii 24] carrying two stuffed pillow cases leave
Skinners apartment. Wanous averred that she saw the man near
the door to Skinners 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 [mans] arms
was black," she "couldnt make out" the mans
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
"couldnt see anything else." When asked by
Detective Ikehara if Wanous could tell what the suspects
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 suspects "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:] Its 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 thats 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 suspects hair, eyes, and
facial shape.
On
July 26, 1989, Detective Ikehara obtained a written statement
from Wanouss sister, Orchid Ah Loy (Ah Loy), in which she
stated that Wanouss 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), Wanouss 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 Skinners 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
Skinners light-colored hair, which she preserved as
evidence. Dr. De Alwis also took samples of fluid found in
the decedents vagina, the testing of which revealed the
presence of recently deposited semen.
On
August 3, 1989, Detective Ikehara submitted a...
