76 Hawai'i 148, State v. McGriff

• Decision Date: 11 April 1994
• Docket Number: No. 15867,15867
• Citation: 871 P.2d 782,76 Hawaii 148
• Parties: 76 Hawai'i 148 STATE of Hawai'i, Plaintiff-Appellee, v. Tony Lee McGRIFF, Defendant-Appellant, and Rodney Alan Ingalls and Paul Anthony Butler, Defendants.
• Court: Hawaii Supreme Court

Page 782

871 P.2d 782

76 Hawai'i 148

STATE of Hawai'i, Plaintiff-Appellee, v. Tony Lee McGRIFF, Defendant-Appellant and Rodney Alan Ingalls and Paul Anthony Butler, Defendants.

No. 15867.

Supreme Court of Hawai'i.

April 11, 1994.

Syllabus by the Court

1. Points of error not presented in accordance with Rule 28(b)(4) of the Hawai'i Rules of Appellate Procedure will be disregarded, except that the court, at its option, may notice a plain error not presented.

2. This court may sua sponte notice plain errors affecting an accused's substantial rights.

3. The primary purpose of the confrontation clause in the sixth amendment of the United States Constitution was to prevent depositions or ex parte affidavits being used against the accused in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection of the witness, but of compelling the witness to stand face to face with the jurors in order that they might look at him or her and judge by the witness's demeanor upon the stand and the manner in which he or she gives his or her testimony whether the witness is worthy of belief.

4. Chief among the interests secured by the confrontation clause is the right to cross-examine one's accuser.

5. The confrontation clause restricts the range of admissible hearsay in two ways. First, the prosecution must either produce, or demonstrate the unavailability of, a declarant whose statement it wishes to use against the defendant. Second, upon a showing that the witness is unavailable, only statements that bear adequate indicia of reliability are admissible.

6. Under the confrontation clause of the Hawai'i Constitution, a showing of the declarant's unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants.

7. Under the confrontation clause of the Hawai'i Constitution, reliability is shown if the evidence falls within a firmly rooted hearsay exception or upon a showing of particularized guarantees of trustworthiness. One such firmly rooted hearsay exception is the co-conspirator exception, Hawai'i Rules of Evidence (HRE) 803(a)(2)(C) (1985).

8. It is clear that a defendant need not be charged with conspiracy to admit a statement against him or her under the co-conspirator hearsay exception.

9. Before admitting a co-conspirator's statement over objection that it does not qualify under HRE 803(a)(2)(C), the trial court must be satisfied that the statement actually falls within the definition of that rule; there must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy.

10. Preliminary questions concerning the admissibility of evidence shall be determined by the court.

11. Where the preliminary facts necessary for the admissibility of evidence are disputed, the offering party has the burden to prove facts supporting admission by a preponderance of the evidence.

12. On appeal, the trial court's determination of preliminary factual issues concerning the admission of evidence will be upheld unless clearly erroneous.

13. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed.

14. In the preliminary determination of admissibility under the co-conspirator's exception to the hearsay rule, a co-conspirator's statements can themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy.

15. Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant's right to a fair trial.

Wayne M. Rooney, on the briefs, Haleiwa, for defendant-appellant Tony Lee McGriff.

James M. Anderson, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee State of Hawaii.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Defendant-appellant Tony Lee McGriff appeals his convictions of attempted theft in the first degree, in violation of Hawai'i Revised Statutes (HRS) §§ 708-830.5(1) ¹ and 705-500, ² and criminal property damage, in violation of HRS § 708-821(1)(a). ³ On appeal, McGriff primarily alleges violations of his constitutional right to confrontation and prosecutorial misconduct stemming from, inter alia, the admission of incriminatory hearsay ⁴ statements at trial.

We hold that admission of the subject testimony did not offend McGriff's right to confront his accuser because the declarant was unavailable and the statements fell within the Hawai'i Rules of Evidence (HRE) co-conspirator hearsay exception, Rule 803(a)(2)(C) (1985). ⁵ We also find no misconduct on the part of the prosecutor. Thus, we affirm the conviction.

I. BACKGROUND

In the early morning hours of October 8, 1990, a fire completely gutted the "23rd Step" nightclub (nightclub or club) situated on the second floor of a building located at 274 Kuulei Road, Kailua. Fire units arrived shortly after 2:30 a.m. and labored for nearly seven hours before the blaze was completely extinguished. The Honolulu Fire Department's (HFD) investigation revealed that the fire was incendiary in nature.

On October 26, 1990, McGriff, the manager of the nightclub, was charged in connection with the fire. The complaint alleged:

Count I: On or about the 1st day of October, 1990, to and including the 11th day of October, 1990, in the City and County of Honolulu, State of Hawaii, TONY LEE MCGRIFF and RODNEY ALAN INGALLS did intentionally engage in conduct which, under the circumstances as they believed them to be, constituted a substantial step in a course of conduct intended to culminate in their commission of the crime of Theft in the First Degree, by attempting to obtain or exert control over the property of Acceptance Insurance Company, the value of which exceeds Twenty Thousand Dollars ($20,000.00), by deception, with intent to deprive said Acceptance Insurance Company of the property, thereby committing the offense of Attempted Theft in the First Degree[.]

Count II: On or about the 8th day of October, 1990, in the City and County of Honolulu, State of Hawaii, TONY LEE MCGRIFF, RODNEY ALAN INGALLS, and ANTHONY BUTLER did intentionally damage property of Helen Ing, without her consent, by the use of widely dangerous means, thereby committing the offense of Criminal Property Damage in the Second Degree[.]

As evidenced by the complaint and its opening statement at McGriff's trial, ⁶ which commenced on September 23, 1991, the prosecution's theory of the case was that McGriff had orchestrated the blaze to collect fire insurance proceeds because the business was in financial crisis. In particular, the prosecution alleged that McGriff hired an acquaintance, Rodney Ingalls, to start the fire.

Helen Ing, the owner of the building in which the nightclub was situated, testified that she leased the nightclub to Ed Shine from January 1, 1986 through December 31, 1990. Shine testified that in March 1990 he assigned his interest in the lease and sold his cabaret license, along with the club's fixtures and equipment, to "McGriff Liquors," a business owned by McGriff's mother, Jeannie McGriff, for $230,000.00. McGriff Liquors paid $65,000.00 down and agreed to pay the balance of $165,000.00 in monthly installments of $2,180.49. Thereafter, the nightclub continued to operate under McGriff's management.

Several witnesses indicated that although the nightclub did well for a few months under the new ownership, patronage waned shortly before the fire. For example, Michelle Puuoha, a bartender at the nightclub, testified that right before the fire, business had been "kind of slow" because the college students had gone back to classes and the Kaneohe marines had left for Kuwait. As a result, McGriff told the club employees that he was forced to reduce wages and cancel their medical coverage. Testimony from Ing, Shine, Carol Cobb (the bar manager), and Kelly Martin (waitress and part-time bartender at the club) similarly indicated that the nightclub was in dire financial straits preceding the fire on October 8, 1990.

With regard to the origin of the fire, Lloyd Rodgers, a HFD captain, was qualified by the court as an expert in fire investigation. Rodgers testified that he arrived on the scene at approximately 4:30 a.m. to determine the origin and cause of the fire. A witness indicated the fire was precipitated by two explosions. Rodgers concluded the fire was intentionally set because: (1) there was an odor of gasoline at the scene; (2) the burn pattern indicated a liquid accelerant was used to ignite the fire; (3) the witness's description of the explosions indicated gasoline vapors were present and the accelerant was poured through the establishment; and (4) the difficulty in extinguishing the flames was suggestive of an accelerant fire.

The prosecution also examined various witnesses to establish that McGriff planned the fire with the intent to obtain insurance proceeds and encouraged and aided Ingalls to actually perform the deed. In particular, Lisa Donaldson (who had dated and lived with McGriff for a short time) testified that in November or December 1990, McGriff told her that "he paid Rod Ingalls $2,000 to torch the [club], and that [Ingalls] was supposed to keep his mouth shut." According to Donaldson, McGriff was to meet Ingalls in Seattle later to collect an additional $8,000.00, which McGriff would obtain from the fire insurance proceeds. Donaldson also recalled that McGriff told her he wanted Ingalls to burn down the club because "other clubs were trying to put him out of business[.]" ⁷ Additionally, Donaldson testified that a few days...