83 Hawai'i 289, State v. Clark

Decision Date03 October 1996
Docket NumberNo. 18406,18406
Citation926 P.2d 194
Parties83 Hawai'i 289 STATE of Hawai'i, Plaintiff-Appellee, v. Francis Eugene CLARK, Defendant-Appellant.
CourtHawaii Supreme Court

David W. Hall, on the briefs, Honolulu, for defendant-appellant.

Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.


MOON, Chief Justice.

Defendant-appellant Francis Eugene Clark appeals his conviction for attempted second degree murder. On appeal, Clark alleges as error: (1) the admission of extrinsic evidence of the complaining witness's prior inconsistent statements; (2) the admission of expert testimony concerning domestic violence and the phenomenon of recantation; (3) the admission of evidence regarding two prior acts of Clark's misconduct; (4) the denial of his motion for judgment of acquittal; (5) prosecutorial misconduct; and (6) ineffective assistance of counsel. For the reasons discussed below, we affirm Clark's conviction.


On the morning of September 6, 1993, at approximately 6:30 a.m., a security guard at the Hawaiian Princess condominium in Makaha telephoned the Honolulu Police Department (HPD), informing them that he had heard a female screaming in the condominium complex. HPD Officer Allan Kuaana testified that, upon arrival at the condominium complex, he observed a woman, Diana May Clark (Diana), bleeding from her chest. Officer Kuaana further testified that Diana informed him that her husband had "stabbed her in the chest." After requesting an ambulance to transport Diana to Saint Francis West Hospital, Officer Kuaana arrested Clark, Diana's husband.

Later that day, at approximately 7:15 p.m., HPD Detective Bruce Swann interviewed Diana at the hospital. During the tape recorded interview, Diana recounted the following version of the events that led to her injuries. Diana stated that, after an evening in which she and her husband both consumed a significant amount of alcohol and injected cocaine her husband became very angry, accusing her of being unfaithful. Diana also stated that, after a long argument, Clark ordered her into their bedroom and demanded she have sex with him. After she refused, Diana indicated that Clark "jumped on [her] and put his hand on [her] throat because [she] screamed[.]"

Diana told Detective Swann that Clark then punched her in the back, went to the kitchen, and returned to the bedroom with a knife in his hand. At that point, Clark threw her into the closet, "ripping at [her] clothes." Diana stated, "[H]e kept saying that it would be nothing for him to kill me; that he'd kill[ed] people in Vietnam." In recounting how she was stabbed, the following exchange occurred between Detective Swann and Diana:

Q. [By Detective Swann] He punched you in the back?

A. [By Diana] And then he went into the kitchen. When he came back, he had this knife--knife in his hand.

Q. Okay. Now, he comes out--he comes--Where are you in the bedroom now when he comes--

A. On the bed, on my--on the right side of the bed by the closet.

Q. Okay.

A. And--and he throws me in the closet and he's just telling me--he's ripping at my clothes.

Q. He's cutting your clothes with the knife?

A. He's cutting my robe.

Q. Your robe?

A. That's what I had on, was a green robe. And he kept saying that it would be nothing for him to kill me; that he'd kill people in Vietnam.

Q. He said it'd be nothing to kill you, that he's killed people in Vietnam. Okay, and then?

A. And I, I was begging him, please, please stop, please cause I knew he didn't know what he was doing. And all of a sudden, it went in here.

Q. 'Kay. So then he stabbed you. Okay.

A. And he pulled it out, and there was blood on it. And I said Gene, Gene, I'm hurt. I'm really hurt. I thought I was bleeding from my mouth, too.

Q. Okay. So then when he stabbed you with the knife, what hand was the knife in?

A. The right hand.


Q. Okay. So then after that, after he stabs you, then what does he do?

A. Well, I'm in the closet. He's got me backed into the closet on--I'm on my back and I'm begging him cause I was afraid he was gonna stab me again.

On September 21, 1993, Clark was charged with attempted murder in the second degree, in violation of HRS §§ 705-500 (1993) 1 and 707-701.5(1) (1993). 2

At trial, the prosecution first called Diana to testify regarding her recollection of the events on September 6, 1993. Diana's testimony, however, differed markedly from what she had told Detective Swann and others about the stabbing. Although Diana admitted telling Detective Swann and others that Clark had stabbed her, she stated at trial that her original story was "a total lie." Diana's trial testimony completely exculpated Clark for the stabbing.

Diana testified that she was a substance abuser and that, after Clark failed to comply with her instruction to secure more drugs on the night in question, she "literally went off." Diana testified that "my temper, my mouth, the dramatics, everything. I went off on my self pity, self destruction--'I might as well kill myself because I've destroyed you. I've destroyed my husband's business. I'm nothing but a junkie. I might as well die....' " Diana further testified that she grabbed the knife and stabbed herself.

Q. [By the prosecutor] What was your husband doing when you were doing that?

A. [By Diana] He was trying to get it away from me. And he--I--He was reaching for it, and I cut his hand.

Q. How did you cut his hand?

A. Well, he grabbed the blade of the knife. And then I lost my balance and I fell back into the closet and used that as--accused him of pushing me into the closet.

To impeach Diana's claim that she stabbed herself in the chest, the prosecution confronted Diana with her tape recorded statement to Detective Swann and her prior inconsistent statements to several persons who had encountered Diana on the morning of the stabbing. Diana testified that she recalled her prior statements, but that those statements were not truthful.

The prosecution also asked Diana whether she recalled two prior occasions when police were called to her home as a result of an argument between herself and Clark. In the first incident, which occurred on April 17, 1993, police were called to the Clark residence after Diana had suffered an injury during an argument with Clark. After the incident, as in the present case, Diana maintained that Clark was not responsible for the injury. At trial, when questioned about the April 17 incident, Diana explained that she and Clark had been arguing and that she had reached to push Clark, but slipped and fell.

The second incident occurred on August 8, 1993. At that time, the police were again called to the Clark residence after Diana and Clark had argued. Diana testified that Clark became very angry at her and, in his anger, caused substantial damage to their property. Diana admitted that, when the police arrived, she initially lied, telling the police that a burglar had damaged the property. Diana further testified that, only after the police questioned her story, did she admit that Clark was the person who had damaged the property. Diana explained, however, that she had lied, not to protect Clark, but to collect insurance money to finance her drug habit.

Following Diana's testimony, the prosecution elicited the testimony of (1) Officer Kuaana, (2) Wiley Brunel, M.D., (3) Rosalind Mitchell, M.D., and (4) Jasmine Klotz, a medical surgical nurse at Saint Francis Hospital, each of whom testified that, on the morning of September 6, 1993, Diana had told them that she had been stabbed by her husband. The prosecution also presented the testimony of Wendy Mow-Taira, an expert on domestic violence. Mow-Taira, whose testimony related only to women in general and who offered no opinion on Diana's relationship with Clark or her credibility, testified that--for various reasons--victims of domestic violence often recant allegations of abuse against their abusers.

Clark testified in his own defense, corroborating Diana's testimony at trial. On June 15, 1994, the jury adjudged Clark guilty of attempted murder in the second degree. On August 12, 1994, Clark was sentenced to a term of life imprisonment with the possibility of parole, and this timely appeal followed.


On appeal, Clark alleges errors in the: (1) admission of certain evidence; (2) denial of his motion for judgment of acquittal; and (3) conduct of both the prosecutor and his own counsel, which he contends entitles him to a new trial. We discuss each of Clark's contentions below. A. Alleged Errors in the Admission

of Evidence

1. Diana's Prior Inconsistent Statements

As previously indicated, Diana testified at trial that she had stabbed herself in the chest. Thereafter, the prosecutor attempted to impeach Diana's testimony and establish the fact that Diana had been stabbed by Clark. In addition to confronting Diana with her tape recorded statement to Detective Swann, the prosecution introduced extrinsic evidence of Diana's prior inconsistent statements and elicited the testimony of the individuals to whom Diana had given prior inconsistent statements. On appeal, Clark contends that, once Diana admitted making statements inconsistent with her trial testimony, "the admission of Diana's statements to others and the playing of the tape [recorded statement] were plain error and prejudicially affected [Clark's] substantial rights."

a. Diana's tape recorded statement

Pursuant to Hawai'i Rules of Evidence (HRE) Rule 802.1 (1993), which "provides for substantive use of most prior inconsistent witness statements[,]" State v. Eastman, 81 Hawai'i 131, 136, 913 P.2d 57, 62 (1996) (quoting Commentary to HRE Rule 613), Diana's tape recorded statement to Detective Swann was admitted into evidence, over Clark's objection.

HRE Rule 802.1 provides in pertinent part:


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