81 Hawai'i 39, State v. Jackson, 17367

• Decision Date: 23 February 1996
• Docket Number: No. 17367,17367
• Parties: 81 Hawai'i 39 STATE of Hawai'i, Plaintiff-Appellee, v. Willie R. JACKSON, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 71

912 P.2d 71

81 Hawai'i 39

STATE of Hawai'i, Plaintiff-Appellee, v. Willie R. JACKSON, Defendant-Appellant.

No. 17367.

Supreme Court of Hawai'i.

Feb. 23, 1996.

Amended Concurring Opinion by

Judge Levinson filed Feb. 26, 1996.

Appeal from the First Circuit Court, City and County of Honolulu County (CR. No. 92-0985).

Andre S. Wooten, on the briefs, Honolulu, for defendant-appellant Willie R. Jackson.

Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.

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

Following a jury trial, defendant-appellant Willie R. Jackson was convicted of one count of sexual assault in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 707-731(1)(a) (1993), ¹ and one count of sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (1993). ² Jackson appeals from the judgment of the circuit court, contending that the court erred in: (1) denying his motion to dismiss for violation of Hawai'i Rules of Penal Procedure (HRPP) Rule 48(b); ³ (2) providing the jury with a definition of "strong compulsion" prior to commencement of trial; (3) restricting the scope of Jackson's recross-examination of a witness; (4) instructing the jury on included offenses; (5) denying Jackson's motion for new trial based upon the prejudicial effect of defense counsel's filing of a motion for judgment of acquittal at the close of the prosecution's case-in-chief; and (6) denying Jackson's motion for a new trial based upon post-verdict disclosures made by the jury foreperson. Jackson also claims that (7) insufficient evidence was presented at trial to support his convictions because the prosecution failed to establish the element of "strong compulsion."

We hold that Jackson received a fair trial, free from reversible error, and that sufficient evidence was presented by the prosecution to support his convictions. However, because we agree with Jackson that the circuit court erred in concluding that the commencement of his trial was within the time limits set forth in HRPP Rule 48, in light of our precedent, we have no choice but to vacate Jackson's convictions and remand for entry of an order dismissing the charges against him, with or without prejudice, in the circuit court's discretion.

We recognize that by vacating Jackson's convictions the purposes sought to be accomplished by HRPP Rule 48 will likely be subverted. For that reason, we take this opportunity to request that the Permanent Committee on Rules of Penal Procedure and Circuit Court Criminal Rules reassess HRPP Rule 48 and propose any amendments it deems necessary to prevent the reoccurrence of such an absurd result in the future.

I. BACKGROUND

On the night of June 2, 1991, Jackson, Kaipo Annon, and the complaining witness (CW), all of whom worked together at a Waikiki hotel, decided to meet after work at Hot Rods Cafe (the Cafe), where Jackson's girlfriend, Monica, worked as a waitress. The three co-workers had some drinks and food, talked, and listened to music with another friend, Willie Meyers, until the Cafe closed at 2:00 a.m. After the Cafe closed, the four walked to where they had parked. There was concern about Annon, who was driving a moped and lived in Hawai'i Kai, driving home at that late hour after having drunk "pretty heavy in the bar." Meyers offered to give Annon a ride home, but Annon did not want to leave his moped. Meyers then asked CW to follow Annon home as Annon drove his moped home. CW agreed, and asked Jackson to accompany her because she "didn't want to drive [to Annon's residence in Hawai'i Kai] alone." Jackson agreed, on the condition that they take his, rather than CW's, car.

Jackson and CW followed Annon as far as Kahala, where Jackson "just turned the car around and ... went to Kahala Beach Park." After arriving at the park, the two got out of the car and talked.

Jackson testified that at that point, he decided that they should return and he took CW directly back to where her car was parked.

CW's testimony regarding the events that followed their arrival at Kahala Beach Park was drastically different than Jackson's account. According to CW's testimony, Jackson started kissing her, and she told him to stop and pulled away. They returned to the car, where Jackson reclined the seats, unzipped his pants, and "pulled out" his erect penis. CW testified that she felt "scared" and had not expected Jackson to do that.

Jackson informed CW that he wanted her to "jack him off." Still frightened, CW refused, and told him that she wanted to go back to her own car. Jackson ignored CW's request and instead "grabbed" her hand, "put it around his penis," and started "making [her] hand go up and down." Because CW "didn't want to move [her] hand up and down," Jackson covered her hand with his and forced her hand to "go up and down" on his penis. CW tried to pull her hand away, told Jackson that she did not want to do it, and again pleaded that she be returned to her car. Jackson told her that he would not take her back until she made him "come," essentially giving CW an ultimatum: either perform manual sex or get out of the car and walk.

CW did not get out of the car because it was 2:30 or 3:00 in the morning, nobody was around, and it was dark. She was scared, "afraid to just walk," because "you hear stories about young girls and people getting murdered." CW did manage to free her hand, but Jackson "kept pulling it back." During this period, Jackson hid the car keys. At one point, CW succeeded in pulling her seat up, but Jackson reclined it back down and "jumped" over to her side. CW was "crying" and "making a lot of noise, hoping somebody would hear." She repeatedly told Jackson that she "wanted to go back to [her] car, to stop," but he ignored her pleas. Instead, Jackson got on top of CW and restrained her as she struggled. He then "pulled his pants half way down," forced CW's skirt up, and "inserted his penis in" her vagina.

CW testified that she remained "scared" throughout this encounter, and that she was crying and repeatedly telling Jackson to stop. However, Jackson ignored her pleas and "kept doing it." Eventually, Jackson "pulled his penis out." CW again told him to take her back to her car. Jackson complied, and apologized to CW on the ride back. He also cautioned CW not to tell their friends at work or his girlfriend about the incident. CW subsequently reported the incident, and Jackson was arrested.

On April 28, 1992, an O'ahu grand jury returned an indictment charging Jackson with sexual assault in the first degree in violation of HRS § 707-730(1)(a) (1993) ⁴ (Count I) and sexual assault in the third degree in violation of HRS § 707-732(1)(e) (1993) ⁵ (Count II). Jackson filed a motion for supervised release and/or bail reduction on August 4, 1992. He subsequently withdrew the motion on August 31, 1992.

On December 1, 1992, Jackson filed a motion to dismiss the charges against him, claiming that HRPP Rule 48(b) had been violated inasmuch as his trial had not commenced within one hundred eighty days of his arrest. Jackson argued that two hundred seventeen non-excludable days had elapsed between April 28, 1992, the date of the filing of charges against him, and December 1, 1992, the date on which he filed his HRPP Rule 48(b) motion. The circuit court denied the motion, concluding, inter alia, that the twenty-eight days that had elapsed while Jackson's motion for supervised release and/or bail reduction was pending, as well as the fifteen days between the first pretrial status conference (rescheduled due to defense counsel's failure to appear) and the second, were excludable. The circuit court held that, after excluding these periods, the allowable period had not been exceeded.

Trial commenced on December 2, 1992. Before the trial began, and outside of the jury's presence, the circuit court informed both parties of its intention to provide the jury with a few preliminary instructions, including the definition of "strong compulsion." The court explained that it wanted to give the jurors something to focus on during the course of the proceedings, and asked whether counsel had any objections. Although defense counsel James Miura had no objection to the substance of the definition, he did note an objection on procedural grounds.

Prior to recross-examination of CW, the court warned Miura, "Limit yourself to recross ... we're not going to do cross all over again." During the recross, as Miura began to question CW about statements she had made to a private detective and to the police regarding the alleged sexual assaults, the following colloquy ensued:

THE COURT: How deeply are we getting into this since this is recross?

....

THE COURT: I don't recall that the [prosecution] raised that issue in its redirect.

MIURA: Well, I--this is also another prior statement, your Honor.

THE COURT: Yeah, but that's what you should have done in your cross, this is redirect, this is the fourth shot, you don't get to start doing new things in the fourth shot. You can only attack what the [prosecution] raised in its redirect and I don't recall that [it] did raise that on redirect.

I don't want to get into a third statement unless it directly deals with something raised by the [prosecution] in its redirect, not [its] direct.

MIURA: Well, your Honor, if--it can get redundant, I can see this point, your Honor, I won't get into that point.

Miura then terminated his recross-examination of CW.

Once the prosecution rested, Jackson made a motion for mistrial and a motion for judgment of acquittal, each of which the court heard and denied that day. Both motions were heard outside the presence of the jury.

After the defense presented its case, and the parties settled jury instructions, Jackson renewed his motion for judgment of acquittal and again, outside the presence of the jury, the court denied his...