83 Hawai'i 472, State v. Jhun

• Decision Date: 11 October 1996
• Docket Number: No. 16139,16139
• Citation: 927 P.2d 1355
• Parties: 83 Hawai'i 472 STATE of Hawai'i, Petitioner-Appellee, v. Manuel JHUN, Respondent-Appellant.
• Court: Hawaii Supreme Court

Page 1355

927 P.2d 1355

83 Hawai'i 472

STATE of Hawai'i, Petitioner-Appellee, v. Manuel JHUN, Respondent-Appellant.

No. 16139.

Supreme Court of Hawai'i.

Oct. 11, 1996.

James M. Anderson, Deputy Prosecuting Attorney, on the brief, Kailua, for petitioner-appellee.

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

NAKAYAMA, Justice.

After a jury trial, defendant-appellant Manuel Jhun (Jhun) was found guilty of assault in the second degree in violation of Hawai'i Revised Statutes (HRS) § 707-711(1)(d) (1993). Through an opinion filed on December 5, 1995, the Intermediate Court of Appeals of Hawai'i (ICA) vacated the judgment and remanded the case for a new trial. State v. Jhun, No. 16139, slip op. (Ct.App. December 5, 1995). In so holding, the ICA addressed only one of the issues that Jhun raised in his appeal, namely, whether the trial court had erred by applying the hearsay rule, precluding Jhun from cross-examining a police officer about the contents of an absent witness's statements that the police officer had written down in his investigative report. The police officer's testimony about the absent witness's statements might have supported Jhun's assertion that he had been justified in stabbing his victim as a means of defending his brother, whom a group of men had allegedly attacked. Although the police officer's testimony about the absent witness's statements constituted hearsay, the ICA held that it was presumptively admissible pursuant to Hawai'i Rules of Evidence (HRE) Rule 803(b)(8)(C) (1993), the public records and reports exception to the hearsay rule. In response to the State of Hawai'i's (the prosecution) petition, we granted certiorari to review the ICA's holding, and, for the reasons set forth below, we hold that the trial court did not err in concluding that the police officer's testimony about the absent witness's statements constituted inadmissible hearsay. We therefore reverse the ICA's decision and order the ICA's opinion depublished. Furthermore after reviewing the remaining issues that Jhun has raised in his appeal, we affirm Jhun's conviction of assault in the second degree.

I. BACKGROUND

On May 19, 1990, an altercation arose on Maunakea Street in the Chinatown area of Honolulu involving, among other people, two sets of brothers: (1) Ronald Jhun (Ronald) and the defendant Jhun; and (2) Cornelius Alston (Cornelius) and Michael Alston (Michael). During the altercation, Jhun stabbed Cornelius in the arm with a "butterfly" knife. Consequently, a grand jury indicted Jhun for assault in the second degree in violation of HRS § 707-711(1)(d) ¹ and possession of a switchblade knife in violation of HRS § 134-52 (1993). ²

During his trial, Jhun admitted that he had stabbed Cornelius in the arm, but claimed he had been justified in stabbing Cornelius in order to defend his brother, Ronald, because at that time a group of five or six men, including Cornelius and Michael, had suddenly attacked Ronald and were beating him. Jhun insisted that the group of men including Cornelius and Michael had initiated the confrontation. One of the men in the group had a "butterfly" knife, and Jhun feared that his brother Ronald's life was in jeopardy. Jhun tried to rescue Ronald by punching the attackers, but he was not immediately successful. As the scuffle continued, Jhun suddenly noticed that one of the attackers had dropped the "butterfly" knife. Jhun quickly grabbed the knife and stabbed Cornelius in the arm. Cornelius and the attackers immediately stopped beating Ronald and began surrounding Jhun, who turned and ran away from the scene. Ronald's testimony essentially supported Jhun's version of how the events had transpired.

In contrast to Jhun's and Ronald's testimony, Cornelius testified that he, his brother Michael, and two friends had approached Jhun and Ronald and had asked them why Ronald was hassling Cornelius's brother. In response, Ronald initiated the confrontation by pushing Cornelius in the chest, and Cornelius retaliated by pushing Ronald back. Then Jhun stabbed Cornelius with a "butterfly" knife, after which Jhun turned and ran away from the scene. Cornelius chased after Jhun.

Michael was not available to testify at Jhun's trial. However, two Honolulu Police Department (HPD) officers testified with respect to some of the events. At the time Jhun was fleeing the scene of the altercation, HPD officers Robert Cravalho (Officer Cravalho) and Brian Taniguchi (Officer Taniguchi) were approximately one block away. According to Officer Cravalho's testimony, he had noticed Jhun running toward Officer Taniguchi and himself with a knife in his hand. Both officers drew their revolvers and Officer Cravalho told Jhun to drop the knife. Jhun placed the knife on the street, but continued running away. After chasing Jhun, Officer Cravalho and Officer Taniguchi eventually subdued and arrested him.

While investigating Cornelius's stabbing, Officer Cravalho interviewed Cornelius's brother, Michael, approximately one hour and forty-five minutes after the events that had culminated in Jhun's arrest. Based on the interview with Michael about how the altercation had taken place, Officer Cravalho transcribed Michael's oral statements by hand onto three pages of HPD-252 forms. Michael read the statements, as transcribed by Officer Cravalho, and signed an attestation stating that the statements were true and correct. Officer Cravalho's transcription of Michael's statements in the HPD-252 forms reads, in pertinent part, as follows:

On 05-19-90, at about 0245 hours, I was on the north/west corner of Smith [Street]/Hotel [Street]. [Jhun] summoned me over and was asking about my brother [Cornelius]. [Ronald] approached me from the front and began to swing a butterfly knife around, saying "You want some? You want to die?" Apparently [Ronald] thought I was starting a problem with [Jhun]. I was confused at [Ronald]'s behavior. [Ronald] then took a "poke" at me. I stepped back to avoid injury. [Jhun] grabbed [Ronald] telling him to calm down. He then walked away. [Jhun] returned to me saying he was sorry for [Ronald]'s behavior. Prior to [Jhun's] apologizing, I went to my vehicle and took out a pool cue to defend myself. After [Jhun] apologized, I calmed down and put away my pool cue. HPD confronted me at this point, questioning me about the pool cue. I told them what happened but didn't care too much about it. I figure blow it off. I got into my car with my brother [Cornelius]. We travelled north on Smith [Street], west on Pauahi Street, and south on Maunakea [Street]. Just prior to Hotel [Street] I saw [Ronald] "swinging" the butterfly knife at two other black males. These males were backing away from [Ronald]. Again [Jhun] was there. He was trying to keep the black males away from [Ronald]. We were stopped at the red light and the commotion was on the south/west corner. When the [light] turned green, I proceeded through the intersection and stopped to help. My brother jumped out and was immediately confronted by [Ronald]. My brother and the other black males "pounded" on [Ronald]. [Jhun] tried to break up the fight. My brother and [Jhun] began to fight. [Ronald] went down and the two black males were still punching him. [Jhun] went over to [Ronald] and took the knife from him. He then began waving it in the air. It appeared as though he was trying to keep my brother away. Before waving [the] knife around, [Jhun] had already "cut" my brother's right arm with a downward motion. He was then waving the knife. I took off in my car to go back to Smith [Street] and Hotel [Street] where HPD was. By the time I got there, my brother and [Jhun] were already there. [Jhun] was already hand cuffed [sic]. While talking with HPD I noticed [Ronald] walking east on the south side of Hotel [Street], approaching Smith [Street]. I pointed him out and HPD stopped and arrested him.

After direct examination of Officer Cravalho, Jhun's counsel cross-examined Officer Cravalho and attempted to elicit testimony from Officer Cravalho regarding Michael's transcribed statements in the HPD-252 forms. The prosecution objected, asserting that Officer Cravalho's testimony about Michael's transcribed statements in the HPD-252 forms would constitute inadmissible hearsay. The colloquy between the trial judge and Jhun's counsel regarding his attempt to question Officer Cravalho about Michael's written statements in the HPD-252 forms included the following:

[JHUN'S COUNSEL]: Okay. In your investigation, Officer, when you were talking with Michael Alston, did he relate to you that he had driven a car--

[THE PROSECUTION]: Objection, Your Honor. This is calling for--

THE COURT: It does call for hearsay.

....

[JHUN'S COUNSEL]: .... My question was intended to be did Mr. Alston tell you that he was driving a car when he approached this intersection. Merely to put him in the car at the intersection to start with--

THE COURT: Basically that calls for hearsay.

....

THE COURT: You may ask the officer what he did but your question was did Michael Alston relate to you.

[JHUN'S COUNSEL]: I under[stand], Your Honor, but not for the purpose of the truth of the matter but hearsay based on this officer's observation which led to the charging of the defendant and by getting into the facts of what physical actions Mr. Michael Alston took does not get into the question of hearsay as to what Michael Alston said.

THE COURT: You're asking him what Michael Alston said. You can ask the officer based on what he said. You didn't ask him what he said.

[JHUN'S COUNSEL]: But I think that the fact Mr. Alston's report was included in this officer's 11 page report then takes it out of the hearsay exception and make's [sic] it--

THE COURT: The Court disagrees.

....

[JHUN'S COUNSEL]: Officer, did you learn an [sic] a result of your investigation that the two Alston brothers had attacked Mr. Ronald Jhun in this area that you had mentioned on Maunakea...