88 Hawai'i 407, State v. Christian, No. 20804

• Court: Supreme Court of Hawai'i
• Writing for the Court: Before MOON; LEVINSON
• Citation: 967 P.2d 239
• Parties: 88 Hawai'i 407 STATE of Hawai'i, Plaintiff-Appellee, v. Taryn CHRISTIAN, Defendant-Appellant.
• Docket Number: No. 20804
• Decision Date: 10 November 1998

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967 P.2d 239 88 Hawai'i 407 STATE of Hawai'i, Plaintiff-Appellee,
v.
Taryn CHRISTIAN, Defendant-Appellant. No. 20804. Supreme Court of Hawai'i. Nov. 10, 1998.

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[88 Hawai'i 410] Pamela O'Leary Tower, on the briefs, Honolulu, for defendant-appellant.

Artemio C. Baxa and Simone C. Polak, Kahului, Deputy Prosecuting Attorneys, for plaintiff-appellee.

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

LEVINSON, J.

The defendant-appellant Taryn Christian appeals from the second circuit court's judgment and sentence after conviction of one count of murder in the second degree in violation of Hawai'i Revised Statutes (HRS) § 707-701.5 (1993) (Count I), ¹ one count of use of a deadly or dangerous weapon in the commission of a crime in violation of HRS § 134-51(b) (1993) (Count II), ² and one count of attempted theft in the third degree in violation of HRS §§ 705-500 (1993) and 708-832(1)(a) (1993) (Count III). ³ On appeal,

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[88 Hawai'i 411] Christian argues: (1) that the trial court reversibly erred in (a) denying him his right to testify, (b) denying his motion for a new trial, wherein he argued that he should have been permitted to testify, and (c) excluding evidence that a third party had confessed to the murder; and (2) that he was denied the effective assistance of counsel.

Christian's points on appeal are without merit. Accordingly, we affirm the judgment, conviction, and sentence in Count I (second degree murder) and Count III (attempted third degree theft). However, because Christian's conviction of Count II (use of a deadly or dangerous weapon in the commission of a crime) and simultaneous conviction of Count I is barred under the rationale of this court's opinion in State v. Jumila, 87 Hawai'i 1, 950 P.2d 1201 (1998), we reverse his conviction of and sentence in connection with Count II.

I. BACKGROUND

During the early morning hours of July 14, 1995, Vilmar Cabaccang and his girlfriend, Serena Seidel, were aroused from bed by noise from the outside. When Seidel looked out the window, she saw someone sitting in Cabaccang's car. Cabaccang and Seidel ran outside. The occupant of the car fled on foot, Cabaccang and Seidel in hot pursuit. Seidel reported that, as she ran, she called for help. She observed that the man whom she and Cabaccang were chasing was wearing jeans, a baseball cap, a flannel shirt, and covered shoes. Seidel stopped at the residence of a friend, Tesha Santana, and banged on the door for help. When no one answered, she continued running after Cabaccang and the unknown man.

By the time Seidel caught up to them, Cabaccang and his quarry were struggling. Cabaccang warned, "Babe, the guy has a knife. He wants to kill me." Seidel attempted to assist. She punched the man in the head, whereupon he bit her on the wrist. As she struggled with the man, Seidel observed that he was wearing "the kind of gloves that you use when you dye people's hair." At some point, the man dropped the knife, and Seidel became aware that there was blood "all over" and that Cabaccang had been stabbed. The attacker walked away, stating that he was "going to call 911."

Phillip Schmidt, who lived nearby, was aroused from his bed at about 3:00 a.m. by the sound of shouting and screaming. Coming outside to investigate, he observed a young man walking toward Kihei Road. The area was well lit by street lights and a full moon, and Schmidt reported that he obtained a good look at the man's face. A short distance away, Schmidt observed Cabaccang lying on the ground and attempting to stand up. Observing several stab wounds, Schmidt pointed at the man who was walking away and asked Cabaccang if he was the person who had inflicted the injuries. Cabaccang responded in the affirmative. Schmidt, a recreational therapist with a background in first aid, proceeded to care for Cabaccang until ambulance personnel took him from the scene. Cabaccang eventually died from his wounds. Schmidt reported that the man whom he had observed walking away from the scene was wearing a long-sleeved plaid shirt, "trooper-type" pants, and high top tennis shoes.

Maui Police Department (MPD) Detective Timothy Gapero arrived at the scene of the stabbing at about 4:30 a.m. Detective Gapero videotaped the area and recovered a double-bladed knife, a Phillips head screwdriver, Cabaccang's car keys, and a blood-soaked baseball cap.

Because Seidel's friend, Santana, advised that an acquaintance of hers, Hina Burkhart, was supposed to have met her at her home that evening but had failed to appear as planned and that Santana suspected that Burkhart might have been responsible for the stabbing, the police initially regarded Burkhart as a suspect in the case. However, both Seidel and Schmidt failed to identify Burkhart's photo as depicting the man whom they had observed, and the investigation uncovered two witnesses who placed Burkhart

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[88 Hawai'i 412] in anotHer location At the time of the stabbing. accordingly, burkhart was ruled out as a suspect.

Approximately three days after the attack on Cabaccang, Christian told his former girlfriend, Lisa Kimmey, that he had committed the homicide. A few days later, Kimmey reported the matter to the police. Kimmey's mother provided the police with photographs of Christian wearing a baseball cap identical to the blood-soaked cap found at the scene of the stabbing. Kimmey also testified that, before the stabbing, she had observed Christian in possession of a double-bladed knife like the one used to kill Cabaccang. A search of Christian's home yielded a box of the same type of plastic gloves as Seidel had observed on the attacker's hands, and Seidel and Schmidt both identified Christian's photograph as being that of the man whom they had observed at the crime scene. Subsequently, Christian was charged in this matter.

At trial, Christian's theory of defense was that he had been mistakenly identified; accordingly, he attempted to introduce testimony that Hina Burkhart had confessed to the murder on two separate occasions. When called as a witness, however, Burkhart advised the trial court that he would exercise his fifth amendment privilege against self-incrimination with respect to any questions that might be put to him in the matter. The trial court therefore declared Burkhart to be "unavailable" within the meaning of Hawai'i Rules of Evidence (HRE) Rule 804 (1993) ⁴ and conducted a hearing pursuant to HRE Rule 103 (1993) ⁵ to determine whether there was sufficient corroboration of Burkhart's out-of-court declarations to permit Christian to introduce them into evidence. ⁶ The transcript of the hearing is excerpted below:

THE COURT:....

We're met in chambers for the purposes of determining whether there is sufficient corrobatory [sic] evidence to support the statements of three witnesses.

MR. RANKEN: Two witnesses.

THE COURT: Two witnesses, I'm sorry, which Mr. Ranken wants to offer. These are statements by witnesses which are offered pursuant to [HRE] Rule 804(b)(3) as statements against ... penal interest by Mr. Burkhart, namely that he was responsible for the crime which is the subject of this case.

Before such statements can come in under the rule, the Court is required to make a preliminary finding that there has been sufficient corroboration. In the words of the rule, "a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

THE COURT: First, Mr. Ranken, you need to make clear what your offer of proof is, who the witnesses are, what the offer of proof is, and point out or offer evidence as to what corroborating circumstances clearly indicate the trustworthiness of those statements.

MR. RANKEN: Thank you, your Honor. Mr. William Auld--

THE COURT: How do you spell that?

MR. RANKEN: A-u-l-d. Our two witnesses are William Auld and Patricia Mullins, M-u-l-l-i-n-s.

These are the two witnesses that heard incriminating statements by the witnesses.

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[88 Hawai'i 413] Mr. Auld will testify that he shared a jail cell in November or December of 1995 with James Hina Burkhart. That Mr. Burkhart told him that he was the one who stabbed Vilmar Cabaccang and it felt good to feel the blood running down his hands and arms. Further, that Mr. Auld believed Mr. Burkhart was telling the truth.

THE COURT: Hold on. Okay, go ahead.

[MR. RANKEN:] Ms. Patricia Mullins, who is also standing by ready to testify, would say that she knows James Burkhart. She used to hang around with him quite a bit.

THE COURT: What was the relationship between them?

MR. RANKEN: They were friends. And she also has known the decedent in this case, Vilmar Cabaccang, for a long time and she did hang out, associate with Darryl and Danny Macadangdang, friends of Vilmar's.

She will testify that she had seen--

THE COURT: Hold on. Okay, go ahead.

MR. RANKEN:--that in the past, considerably before this offense occurred, she had seen Hina, that's James Burkhart, arguing with someone, and that he pulled out a butterfly knife. She will say--

THE COURT: Well, okay.

MR RANKEN: She will say that Hina, a couple of days after Vilmar was killed--

THE COURT: Is there any time frame when Hina supposedly pulled this butterfly knife?

MR. RANKEN: No. She just remembers that was years ago. And, for the record, there's not a butterfly knife involved in this case.

THE COURT: That split blade knife that's in evidence is not considered a butterfly knife? I'm not familiar with the terminology.

MR. RANKEN: No, it's not.

MS. TENGAN: It is not considered a butterfly knife.

MR. RANKEN: She will say she saw Hina a couple days after Vilmar was killed in Kihei, and also about four days after Vilmar was killed and on that second occasion--

THE COURT: Give me the two days. Couple of days after--

MR. RANKEN: Vilmar was killed. Driving in Kihei--riding,...