State ‘i v. Forman
| Decision Date | 08 September 2011 |
| Docket Number | No. 30681.,30681. |
| Citation | 125 Hawai'i 417,263 P.3d 127 |
| Parties | STATE of Hawai‘i, Plaintiff–Appellee,v.Stephen P. FORMAN, also known as Brazil, Defendant–Appellant. |
| Court | Hawaii Court of Appeals |
OPINION TEXT STARTS HERE
Walter J. Rodby, on the briefs, for Defendant–Appellant.Delanie D. Prescott–Tate, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.FUJISE, Presiding Judge, LEONARD and GINOZA, JJ.Opinion of the Court by FUJISE, J.
Defendant–Appellant Stephen P. Forman, also known as Brazil (Forman), appeals from the August 11, 2010 judgment of conviction, entered in the Circuit Court of the First Circuit (circuit court).1 A jury found Forman guilty of one count of Unauthorized Control of Propelled Vehicle (UCPV), in violation of Hawaii Revised Statutes (HRS) § 708–836 (Supp. 2010).
Forman raises two points of error: (1) that the circuit court erred by admitting testimony that the company that owned the moped he was riding when stopped by police had no rental contract authorizing Forman to use the moped and (2) that his trial counsel provided ineffective assistance of counsel. We conclude that the evidence that the company had no contract with Forman is admissible under Rule 803(b)(7) of the Hawaii Rules of Evidence (HRE), and that the trial record is insufficient to evaluate whether the assistance given by Forman's trial counsel was ineffective. Accordingly, we affirm Forman's conviction, without prejudice to Forman filing a petition pursuant to Rule 40 of Hawai‘i Rules of Penal Procedure (HRPP).
On June 25, 2009, Honolulu Police Department officers Kenneth Creekmur and Nalei Sooto stopped Forman while he was riding a moped on Ala Wai Boulevard. The moped's license decal was partially missing or had been removed, which, according to the officers, was not uncommon for mopeds that had been stolen.
Forman identified himself to the officers and told them that he had just rented the moped but did not have the rental paperwork on him. Officer Soto determined that the moped was registered to Adventure on 2 Wheels and that the moped was missing, but the company had not reported it as stolen. Forman was arrested and charged by felony information with UCPV.
At trial, Kim Voight, the owner/president of Adventure on 2 Wheels, Inc. (Adventure), verified that the company was the registered owner of a blue moped with license number N60317 and that the company referred to it as Moped No. 26.
According to Voight, Adventure's procedure for renting a moped required employees to ask the customer for a driver's license and verify that the customer is eighteen. Customers must provide a credit card number for a deposit in case the moped becomes damaged, but can pay rental fees by cash or credit card. A company employee informs the customer of the rental fees and shows the customer a contract. Each contract has been pre-printed with a number. The employee writes the number of the moped being rented on the contract, records any pre-existing damage and the mileage, and the customer signs it. According to Voight, no one would be allowed to use a moped without signing a contract.
Voight stated that the contracts are generated every time the company rents a moped and the records are kept in the regular course of business. The contracts are “locked up” after customers sign them and “dropped in a safe” once the mopeds are returned. After Forman's arrest, Voight attempted to locate an agreement “for a Moped No. 26 on or about June 25th, 2009,” but could not find one. Voight reviewed the contracts “from that time period,” and no contracts were missing from the sequence.
The prosecutor asked Voight, “So based on the absence of these contracts, can you tell if anyone had permission to operate the blue moped with license N60317, which for your—according to your company is Moped No. 26?” Forman objected: “Calls for speculation, foundation, hearsay, lack of personal knowledge, competency.” The circuit court overruled the objection. Voight answered that
Forman was the sole witness for the defense. He claimed that he was operating the moped under apparent authorization given to him by Alfredo Bandalan (Bandalan), a company employee. According to Forman, on June 21, 2009, he went to the hostel where Adventure is located and Adam Weiss, a friend of Forman's girlfriend, introduced him to Bandalan. Forman testified that Bandalan rented him the moped for $40 a day, and he returned to the hostel four or five times to pay Bandalan, each time in cash. Forman also said that Bandalan gave him some paperwork, which he discarded without reading.
Voight verified that in June 2009 Bandalan was an employee of the company. She said Bandalan worked for the company for about two months before she fired him because “he kept bad paperwork” and was late. Prior to terminating Bandalan, Voight warned him “that he needed to keep his paperwork better” but his performance “[g]ot worse.”
Bandalan did not testify. The State named him on its witness list filed January 5, 2010. A week later, on the first day of trial, the court was informed that the State would not call Bandalan to testify; he was not in Hawai‘i because he had been extradited to Kentucky a month earlier to stand trial on a rape charge. In response to Forman's concerns that Bandalan's absence might raise a “confrontation clause problem,” 2 the parties stipulated that they would make no reference to what Bandalan said to police.
On January 15, 2010, a jury found Forman guilty on one count of UCPV.
On February 1, 2010, Forman's counsel (Counsel) filed a motion to withdraw, based on Forman's belief that Counsel was providing ineffective assistance. At the hearing on the motion, Forman said that before trial, he had located Bandalan and Bandalan agreed to testify on his behalf, that he told Counsel to subpoena Bandalan, but that Counsel refused, because “that's against my strategy.” The circuit court asked Counsel for a response, to which Counsel replied, The circuit court granted the motion to withdraw as counsel.
On March 9, 2010, Forman, represented by newly-appointed counsel Walter Rodby, filed a motion for new trial on the grounds that Counsel provided ineffective assistance where he “failed to investigate, interview and subpoena a critical defense witness, Alfredo Bandalan, which resulted in the substantial impairment of a meritorious defense,” and where he had a conflict of interest because the Office of the Public Defender (OPD) had simultaneously represented Bandalan and Forman. Forman acknowledged that the motion was made after HRPP Rule 33's ten-day deadline but argued the deadline should not be rigidly applied out of fairness. The State argued that the deadline must be strictly complied with, and Forman's motion should be denied because it was filed 53 days after the jury verdict, or 43 days late.
At the hearing on the motion for new trial, Forman introduced:
• An offer of proof that Adam Weiss “would also be able to corroborate that Mr. Forman was making rental payments on that moped to [ ] Bandalan” and that Weiss never talked to a public defender;
• An audio recording of a conversation between Rodby and Bandalan in which Bandalan said that he “rented the moped without documentation, and in fear of losing [his] job, [he] made false statements to the police” and that he never talked to an attorney representing “Brazil”;
• Forman's testimony that he found Bandalan and that Bandalan agreed to make a statement to the effect that Forman was not aware that the moped was stolen; that he asked Counsel to talk to Bandalan but Counsel said “oh, it's against my strategy,” and to his knowledge Counsel never talked to Bandalan;
• A note from Forman to Counsel, made during trial, which read, “You need to let the jury know I requested Mr. Bandalan & Adam to be subpoenaed but it went against your strategy.”
Forman also orally moved to dismiss the charges because he received ineffective assistance of counsel. The circuit court denied the motion for new trial as untimely and denied the motion to dismiss.
After the hearing, the defense filed a sworn declaration from Bandalan, in which he asserted that he rented the moped to Forman, Forman paid Bandalan but Bandalan used the money for his own benefit, and that Bandalan did not tell Forman that he was using the rental fees for his own benefit. He also attested that Forman's attorney did not contact him about appearing in court.
The circuit court sentenced Forman to imprisonment for five years, subject to a mandatory minimum of one year and eight months as a repeat offender.
Forman's first point of error alleges that the circuit court erred by admitting Voight's testimony that there was no rental contract for Moped No. 26. Although Forman gave a scattershot objection at trial that the testimony should be excluded based on “speculation, foundation, hearsay and lack of personal knowledge, and competency,” on appeal he only argues that “the source of the information and other circumstantial evidence indicate[s] a lack of trustworthiness.” We conclude that the circuit court did not err in admitting Voight's testimony under HRE Rule 803(b)(7).
“Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard.” State v. Fitzwater, 122 Hawai‘i 354, 362, 227 P.3d 520, 528 (2010) (quoting State v. Machado, 109 Hawai‘i 445, 450, 127 P.3d 941, 946 (2006) (internal quotation marks omitted)). However, whether proposed evidence shows a “lack of trustworthiness” is reviewed for abuse of discretion. Id. (citin...
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