84 Hawai'i 211, State v. Bates, 18121

• Court: Supreme Court of Hawai'i
• Writing for the Court: Before MOON; NAKAYAMA
• Citation: 933 P.2d 48
• Parties: 84 Hawai'i 211 STATE of Hawai'i, Plaintiff-Appellee, v. Jesse James Arruda BATES, Defendant-Appellant.
• Docket Number: No. 18121,18121
• Decision Date: 31 January 1997

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933 P.2d 48 84 Hawai'i 211 STATE of Hawai'i, Plaintiff-Appellee,
v.
Jesse James Arruda BATES, Defendant-Appellant. No. 18121. Supreme Court of Hawai'i. Jan. 31, 1997.

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[84 Hawai'i 212] Michael Jay Green and David J. Gierlach, on the briefs, Honolulu, for defendant-appellant.

Mark R. Simonds, Deputy Prosecuting Attorney, on the briefs, Wailuku, for plaintiff-appellee.

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

NAKAYAMA, Justice.

Following a jury trial, Jesse James Arruda Bates (defendant) was convicted on February 10, 1994 of one count of racketeering, pursuant to Hawai'i Revised Statutes (HRS) § 842-2(3) (1993), and one count of extortion

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[84 Hawai'i 213] in the first degree, pursuant to HRS § 707-765(1)(b) (1993). On appeal he raises four issues for consideration: (1) the 686 inaudible entries in the trial transcript prevent appellate counsel from engaging in a meaningful review of the record in order to determine error, therefore requiring a new trial; (2) the trial court erred in holding that HRS § 842-2(3), and specifically the term "associated with any enterprise," was not unconstitutionally vague; (3) the trial court erred in permitting the introduction of certain evidence against the defendant; and (4) the prosecutor engaged in prosecutorial misconduct during closing argument. Upon review of the record, statutes, and applicable case law, we affirm the defendant's convictions on both counts.

I. Background

On May 21, 1993, the defendant, along with Dennis Satoshi Yoshida (Yoshida) and Kenneth L. Oliveira, Jr. (Oliveira) (neither of whom is subject to this appeal), were indicted in a nine-count indictment by the Maui grand jury. The defendant was charged with criminal conspiracy (Count Seven) (HRS § 705-520 (1993)), racketeering (Count Eight) (HRS § 842-2(3)), and extortion in the first degree (Count Nine) (HRS § 707-765(1)(b)). A jury convicted the defendant of racketeering and extortion in the first degree, but acquitted him of criminal conspiracy.

Prior to trial, on July 27, 1993, Oliveira moved to dismiss the indictment on the ground that the term "associated with any enterprise," as set forth in HRS § 842-2(3), was unconstitutionally vague. The defendant subsequently joined in that motion. On August 16, 1993, the trial court denied the motion as to both defendants. However, the trial court ordered the prosecution to file a bill of particulars specifying each defendant's role in the enterprise as charged under the racketeering count. The bill of particulars was filed on August 23, 1993.

At trial, the prosecution offered evidence that Yoshida was a bookmaker who accepted wagers from Curtis Fukushima (Fukushima) in an elaborate sports betting operation. Fukushima testified that he initially became involved with Yoshida in 1990 through sports gambling. He placed bets with a "runner" associated with Yoshida, and his wagering increased to the point that he was betting $2,000 a game. This relationship continued through March 1991, at which time his bets averaged $5,000 to $20,000 per week. By June 1991, Fukushima owed Yoshida $32,000 and began making regular payments to him regarding this debt. By April 1992, he reduced his debt to $22,000 and agreed to make monthly payments of $300 to Yoshida. However, due to employment problems, he was unable to continue making payments. Fukushima testified that in May 1992, Yoshida told him that, if payments were not made immediately, "[t]wo guys from Honolulu would come" and "take care" of him. He resumed the payments, sometimes making substantial payments, but eventually stopped.

In August or September 1992, Yoshida carried through with the threat. He, Oliveira, and the defendant appeared at Fukushima's place of employment. Yoshida uttered only one word to him, "sixteen-eight," representing $16,800, the balance then owed to him. The defendant told Fukushima that he needed to pay off the entire debt by the end of September 1992 and threatened, "[D]on't screw with us." Fukushima resumed his monthly payments of $300 a month until January of 1993, when he was again unable to continue. He stated that on March 27, 1993, the defendant and Oliveira appeared at his home to inquire about his payments. The defendant introduced himself as "Jessie," and told Fukushima that, every time Fukushima won, "they paid," and instructed him "to make arrangements" or "to do something." The defendant also ordered Fukushima to call Yoshida, which he did, but was unable to reach him. The men informed Fukushima that he had until April to pay off the debt or make some other kind of arrangement. Fukushima stated that, after they left, he was "scared" because "he didn't know what they were going to do."

In April 1993, the Maui Police Department (MPD) contacted Fukushima after surveillance of Yoshida, already underway by the department's Vice Gambling Unit, placed him at Fukushima's residence. Fukushima

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[84 Hawai'i 214] agreed to cooperate with the police in their investigation of Yoshida by taping a telephone conversation. On April 16, 1993, Fukushima contacted Yoshida in order to make payment arrangements, agreeing to deliver $500 (provided by the MPD). This telephone conversation was recorded. In exchange for his further assistance, the MPD granted Fukushima Victim Witness protection. A later meeting between the two men was also recorded by Fukushima, and on May 20, 1993, a second payment was made. A search warrant was executed on Yoshida's apartment, and the $500 was recovered. Fukushima testified before the grand jury and left Maui the next day.

The defendant testified on his own behalf and initially denied having any knowledge of or relationship to Yoshida's gambling activity; specifically, the defendant denied acting as a collection enforcer for Yoshida. However, he later admitted to visiting Fukushima at his workplace accompanied by Yoshida and Oliveira, but otherwise denied saying anything to Fukushima or threatening him. The defendant also stated that shortly after this visit, he and Oliveira went to Fukushima's home, testifying:

I said, "My name is Jesse," and I shaked his hand, you know, and he says, "Oh, I no can pay." I said, "What, what you say?" He say, "I cannot pay." I says, "Hey, call up Dash. Talk to Dash about it. Go see him, because he like know when you can pay him."

Then Curtis told me, "Oh what I gotta pay you guys?" I said, "You don't have to pay us nothing. I'm just comin' here as a friend to see you. When you won, you took your money. Now that you lost, you gotta pay your debt."

The defendant claimed he visited Fukushima only to gain loyalty from Yoshida because he wanted to hire him for his trucking business. On cross examination, the defendant later stated that "I ain't came here for collect debts for Dennis Yoshida or anybody else."

II. Discussion

A. Inaudible Entries in Transcripts

In his first assignment of error, the defendant argues that the trial transcripts are incomplete because of 686 inaudible entries, ¹ thereby preventing counsel and this court from engaging in any meaningful review of the trial. He urges, therefore, that a new trial is required.

The defendant's trial was not transcribed by a live court reporter, but rather, was videotaped and, subsequent to the trial, the proceedings were transcribed by an official court reporter. The defendant maintains that because appellate counsel is different from his trial counsel, new counsel "cannot know whether error was committed during the 'inaudible' portions of the trial, cannot know the basis for the objections made, and cannot determine if certain 'inaudible' questions were objectionable."

After briefing was completed in this case, the Intermediate Court of Appeals (ICA) decided State v. Ganotisi, 79 Hawai'i 342, 902 P.2d 977 (App.1995), which addressed an analogous issue. In that case, the defendant was prosecuted for various counts of sexual assault, terroristic threatening, kidnapping, and abuse of family and household member arising out of acts perpetrated against his stepdaughter. The trial was also videotaped and later transcribed by an official court reporter. The trial transcript contained 368 notations by the court reporter of "no audible responses," "indiscernible words," or "indiscernible whisperings or conversation." Id. at 343, 902 P.2d at 978.

The defendant maintained on appeal that he was prejudiced by the inaudible entries because his appellate counsel was unable to accurately review the trial proceedings to determine whether prejudicial error occurred. ² The defendant offered two examples

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[84 Hawai'i 215] of how he was prejudiced by these omissions.

The ICA noted that, "[a]lthough an indigent criminal defendant is entitled to be provided with a record of sufficient completeness, to permit proper consideration of the defendant's claims on appeal, a full verbatim transcript of the trial proceedings is not automatically required, especially if other alternatives are available to assure the defendant a fair appellate review." Id. (citations and internal quotations omitted). The court further observed:

Moreover, the general rule is that where the transcripts of a defendant's trial are incomplete because they omit portions of the trial proceedings, such omissions do not mandate reversal unless they specifically prejudice the defendant's appeal. See, e.g., United States v. Malady, 960 F.2d 57, 59 (8th Cir.1992) (lack of complete transcript does not necessarily require reversal; to obtain reversal, defendant must show that the missing part of the transcript specifically prejudices the appeal); United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.1990), cert. denied, Antoine v. United States, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990) (even if there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice); United States v. Gallo, 763 F.2d 1504, 1530...