79 Hawai'i 128, State v. Apilando

Decision Date13 July 1995
Docket NumberNo. 17402,17402
Citation900 P.2d 135
Parties79 Hawai'i 128 STATE of Hawai'i, Plaintiff-Appellee, v. William APILANDO, Sr., Defendant-Appellant.
CourtHawaii Supreme Court

Deborah L. Kim, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Pros. Atty., on the briefs, Honolulu, for plaintiff-appellee.

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

MOON, Chief Justice.

Defendant-appellant William Apilando, Sr. appeals his conviction and sentence for sexual assault in the third degree following a jury trial. On appeal, Apilando primarily alleges a violation of his constitutional right of confrontation and to due process, stemming from videotaped testimony by the complainant presented at trial in lieu of direct examination. Apilando also contends that he was denied a fair trial because of prosecutorial misconduct.

Because we hold that the presentation of the videotape evidence in lieu of direct testimony violated Apilando's right of confrontation, the trial court's judgment and sentence is vacated, and the case is remanded for a new trial.

I. BACKGROUND

During a family gathering in August 1990, Apilando and his five-year-old grandniece, the complainant in this case, were part of a group playing hide-and-seek in the countryside near Maunawili Falls, in the City and County of Honolulu. While Apilando and the complainant were hiding in the bushes, Apilando allegedly pushed the complainant to the ground, pulled down his pants' zipper, laid on top of the complainant, tried to kiss her, rubbed her "down [t]here" (indicating the genital area) with his hand by reaching under her skirt and under the leg of her panties, and pinched the complainant in her vaginal area. The complainant managed to escape and ran back to her mother's room at their nearby house, where her mother found her crying, shaking, and huddling in the corner of the bed, holding onto and biting a pillow. The complainant was later taken to Kapiolani Medical Center (KMC), where she underwent a physical and pelvic examination at KMC's Sex Abuse Treatment Center.

The complainant's mother filed a report with police officer Anson Kimura, who had been sent to KMC by the Honolulu Police Department (HPD) dispatch. The case was assigned to Lieutenant Barry Bright, a detective with the Child Sex Crimes Unit of the HPD. Two days after the alleged incident, Detective Bright conducted an interview with the complainant, which was videotaped at the State's Children Advocacy Center. No attorneys were present at the videotaping session.

On February 13, 1991, Apilando was indicted for Sexual Assault in the Third Degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(1)(b) (Supp.1991), 1 and for Kidnapping, in violation of HRS § 707-720(1)(d) (Supp.1991). 2 At trial in July 1992, the complainant, who was then seven years old, testified as to the events surrounding the alleged offense. Following her testimony on direct and cross examination, the prosecution moved to present the videotaped interview. The trial court denied the motion on the grounds that such evidence would be cumulative and prejudicial because the complainant had already testified.

Apilando was found not guilty on the kidnapping charge; however, because the jury could not reach a verdict on the issue of sexual assault, the trial court declared a mistrial.

Prior to his second trial in June 1993, Apilando filed a motion in limine to exclude the videotaped interview of the complainant. Relying on Hawai'i Rules of Evidence (HRE) Rules 616 (1985) 3 and 802.1(4) (1985), 4 the trial court denied Apilando's motion and entered findings of facts and conclusions of law, wherein the trial court stated:

1. Since the [prosecution] will be offering the videotape prior to the [complainant] testifying, at the request of defense, the prior ruling by Honorable I. Norman Lewis which disallowed the tape because the [complainant] had already testified is not binding upon this court as law of the case.

2. Rule 616, H.R.E., provides for the admission of televised testimony of a child who is a victim of a sexual offense.

3. Lapse of memory and inability to fully confront the child victim is an important consideration, however, such an argument is irreconcilable with the provisions of Rule 802.1(4), H.R.E., which in addition to Rule 616, H.R.E., allows for hearsay when it qualifies as past recollection recorded.

4. Rule 616, H.R.E., does not require the court to make a finding that the child victim was traumatized or in any other way affected by testifying, prior to allowing the televised testimony in evidence.

5. The [prosecution] will be allowed to play the videotape of the [complainant], subject to proper foundation being met under Rule 616, H.R.E., and proper redaction of portions of the tape which are prejudicial. In addition, the defense will be afforded the opportunity to submit an instruction to the jury regarding their decision to call the [complainant] as a witness.

During the second trial on the sexual assault charge, the redacted version of the videotaped interview was presented during Detective Bright's testimony. Subsequently, in the absence of the jury, the complainant was called to the witness box and underwent voir dire examination. During voir dire, the complainant testified that she could not remember what she had told Detective Bright during the interview, although she remembered being in the interview room. In response to defense counsel's question whether she had seen the videotape "at least once before," she stated, "I forgot."

While the complainant remained in the witness box, the jury returned to the courtroom, and the complainant underwent cross-examination by Apilando and "re-direct" examination by the prosecution. The complainant essentially testified that: (1) she remembered testifying about the incident at the first trial, including her statement that Apilando had taken off all of her clothing by the stream; (2) Apilando had pushed her down by the stream; (3) she did not remember what Apilando did after he pushed her down, but remembered that he touched her, did not want to say where he touched her, and characterized the touching as "bad"; (4) she pushed Apilando off her and told her mother what had happened; and (5) she did not remember being pinched or feeling sore.

Apilando was found guilty of sexual assault in the third degree and sentenced to a five year term of probation with a special condition of six months incarceration. This timely appeal followed.

II. DISCUSSION

In the present case, the complainant's videotaped interview was presented to the jury pursuant to HRE 616(b), which permits the introduction of videotaped statements of child-victims in sexual assault cases, provided, inter alia, the child is present to testify on cross-examination. See supra note 3. Apilando essentially contends that the presentation of the videotaped interview in lieu of the complainant's direct testimony violated his constitutional rights of confrontation and to due process, as guaranteed by the Hawai'i Constitution. Because we agree that Apilando's right of confrontation was violated, we need not address his due process argument.

A. The Confrontation Clause

The confrontation clause of the Hawai'i Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused[.]" Haw. Const. art. I, § 14. The confrontation clause in the sixth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, is virtually identical.

"The right of confrontation affords the accused both the opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses." State v. Ortiz, 74 Haw. 343, 360, 845 P.2d 547, 555, reconsideration denied, 74 Haw. 650, 849 P.2d 81 (1993) (emphasis added) (citation omitted). " 'The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him [or her], and the right to conduct cross-examination.' " Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987)). The Clause confers " 'a right to meet face to face all those who appear and give evidence at trial.' " Coy, 487 U.S. at 1016, 108 S.Ct. at 2800 (quoting California v. Green, 399 U.S. 149, 175, 90 S.Ct. 1930, 1943-44, 26 L.Ed.2d 489 (1970)).

Although there is a " 'societal interest in accurate factfinding, which may require consideration of out-of-court statements[,]' " State v. McGriff, 76 Hawai'i 148, 156, 871 P.2d 782, 790 (1994) (quoting Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987)), the use of such statements is limited to a great extent by the general rule against the admission of hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." HRE 801(3) (1985). Generally, because hearsay is not subject to the same safeguards as are present during in-court testimony before a factfinder, "[h]earsay is inadmissible at trial, unless it qualifies as an exception to the rule against hearsay." Ortiz, 74 Haw. at 357, 845 P.2d at 554 (citations and internal brackets omitted); see also HRE 802 (hearsay is not admissible at trial, unless falling under an exception provided in the HRE, in rules prescribed by the Hawai'i Supreme Court, or by statute). We have recognized that the hearsay rule and the confrontation clause are "generally designed to avoid similar evils; however, it is not correct to surmise that the overlap of the two doctrines of law is so...

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