State ‘i v. Walsh

Decision Date23 August 2011
Docket NumberNo. 29790.,29790.
PartiesSTATE of Hawai‘i, Petitioner/Plaintiff–Appelleev.Timothy A. WALSH, Respondent/Defendant–Appellant.
CourtHawaii Supreme Court

OPINION TEXT STARTS HERE

Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui (Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, on the brief), for petitioner/plaintiff-appellee.Craig Jerome, Deputy Public Defender, for respondent/defendant appellee.ACOBA, DUFFY, JJ., and Circuit Judge SAKAMOTO, assigned due to a vacancy; with RECKTENWALD, C.J., concurring in the result, with whom NAKAYAMA, J., joins.Opinion of the Court by ACOBA, J.

We hold that (1) in the criminal trial of a defendant, the prosecution's statements that a testifying defendant “benefitted” from his trial presence and, thus, is less credible because he heard the testimony of other witnesses and heard during voir dire that eye contact with the jurors was an indicator of trustworthiness, constitute prohibited “generic tailoring” arguments; (2) prohibited generic tailoring arguments are reviewable as plain error inasmuch as they affect a defendant's substantial constitutional rights; (3) standard jury instructions regarding witness testimony and counsel's arguments do not cure such improper arguments; (4) accordingly, whenever a defendant testifies, the jury must be instructed that the defendant has a right to be present during trial; and (5) in this case the error is not harmless beyond a reasonable doubt. Based on the reasons set forth herein, we affirm the June 10, 2010 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its May 26, 2010 published opinion 1 vacating the March 31, 2009 judgment of the Circuit Court of the Second Circuit (the court) 2 ADJUDGING RESPONDENT/defendaNTappeLlant timothy a. Walsh (rEspondenT) guilty of Assault in the Second Degree, Hawai‘i Revised Statutes (HRS) § 707–711(1)(b) (Supp.2008),3 see State v. Walsh, 123 Hawai‘i 284, 231 P.3d 1001 (App.2010), and remand the case for a new trial, consistent with this opinion.

I.

On May 31, 2008, two groups of people were involved in an altercation outside of an all-in-one restaurant, sports bar, and nightclub called “Oceans Beach Bar and Grille” (the bar) in Kukui Mall in Kihei, Maui. One group consisted of Respondent, his sister Stephanie Walsh (Stephanie), and friends Lucy Mapson (Lucy) and Ilia Pikaki (Ilia). The other group consisted of Kapena Kramer (Kapena), his brother Iokepa Kramer (Kepa), their friend Donald, known as Kala, and other men who were celebrating Kepa's upcoming wedding. Both groups had been drinking alcoholic beverages. Respondent argued with Kala, and Ilia became involved in a fight with Kepa. Kapena attempted to stop the conflict between Ilia and Kepa. At some point, Respondent punched Kapena in the jaw.

A.

Respondent was present throughout the trial, including voir dire during jury selection.4 Respondent, Stephanie, Lucy,5 Kapena, Kepa, two police officers, and John Cooprider, the general manager of the bar, among others, testified at trial. Respondent testified last. The following relevant matters, some verbatim, are adduced from the testimony of witnesses at trial as indicated.

1. Lucy Lei Mapson and Stephanie Marie Walsh

On the evening in question, Stephanie and Lucy arrived at the bar at approximately 11:30 p.m. They left the bar when it closed, met Respondent and Ilia, and together they headed towards Lucy's car, which was parked near Paradise Photo. On the way to Lucy's car, which was parked in front of the photo shop, Stephanie argued with Respondent. They stopped when males parked in the row behind them started yelling at them. According to Stephanie, Kala “told [Respondent] to shut the F up[,] and Respondent replied, [M]ind [your] own business[,] to which Kala responded, [S]hut the F up you stupid haole [.] 6 The males walked towards Respondent, Stephanie, Lucy, and Ilia.

According to Lucy, Kala, who was “angry [and] pumped up,” and Respondent then stood [f]ace to face[ ] and yelled at each other. Five men attacked Respondent. To defend himself, Respondent [t]hrew [a] couple [of] punches [ ] but was backed into a corner. Stephanie was with Respondent and sought to prevent the men from striking him. According to Stephanie, the men took Respondent into a corner and [p]unched and kicked and stomped on [ ] Respondent “30 times[,] and, as a result, Respondent had “bumps on his face[,] “big lumps” on “the back of his head” and a “black and blue [ ] mouth. Respondent “curled up in a ball” about 15 feet from the car. He was punched and kicked for three or four minutes. No security guard became involved.

At some point, four men approached Ilia and started attacking him. Lucy attempted to prevent them from doing so, but she was hit in the face and fell to the ground. According to Lucy, the fight between Ilia and the men seemed to last for five minutes.

After the confrontation between Ilia and the other men had tapered off, Respondent escaped from the corner and was in the parking lot near Lucy's car. He was still being punched. At some point, Respondent “slipped out,” “ducked under[,] and moved away[,] to where he was steps away from Ilia and a male who was yelling at Ilia and using his hands to explain a point. Respondent came up to the male, apparently Kapena, and struck Kapena. The male fell and hit Lucy's car. At the time Kapena was struck, other men were continuing to brawl. Lucy did not see any “bouncers” or security guards in the parking lot during the altercation.

Respondent fled and one of the bouncers from the bar held him on the ground. The police arrested Respondent, who, according to Lucy, had blood on his mouth and whose “head was lumped up pretty bad.”

2. Kapena Jonah Kramer

According to Kapena, he, Kepa, Kala, and another friend 7 drank at the bar, left the bar when it closed, and headed toward their vehicles in the parking lot. By that time, Kapena was intoxicated, as he had imbibed tequila and eight to nine beers throughout the night. Kala had a “ verbal confrontation” with Respondent, who initially was with two females, near the corner of the photo shop. Kala and Respondent fought and wrestled for about five minutes. No staff or security guards became involved.

At the time Respondent and Kala began to clash, Kala was ten to fifteen yards away from Kapena. Shortly after Kala and Respondent began to fight, Kepa, who was standing next to Kapena, became involved in a confrontation with Ilia. This confrontation occurred at the corner of Paradise Photo. Kepa and Ilia fought for about thirty seconds before Kapena stepped in and stopped Kepa from continuing. Kapena recalled that he attempted to calm his brother and Ilia. At that point Kapena had his hands up, indicating that the conflict had ended. Kapena did not recall the location of the females. The next thing Kapena remembered, he was “waking up lying on the ground” near the corner of the photo shop.

3. Kepa Kramer

Kepa was intoxicated due to his consumption of beers, whiskey, and tequila. When he, Kapena, Kala, and another friend left the bar and headed toward the vehicle in the parking lot, Kepa saw a male and a female arguing. Kepa did not see any security guards or staff near the male and female. One of Kepa's friends asked Respondent, [W]hy do you have to pick on a girl?” Kepa saw Kala argue and fight 8 with Respondent. Kepa and Ilia began to fight. The altercation between Kepa and Ilia started in the parking lot, and ended on the sidewalk near the corner of the photo shop. Someone pulled Kepa away, and “it was done.”

According to Kepa, at that point, no other clashes were occurring. Kepa had begun to walk to his vehicle when Kapena was struck. Kepa did not see what happened but saw Kapena on the ground. Kepa chased Respondent and hit him in the face and head.

4. Respondent

Respondent and Ilia met Stephanie and Lucy outside the bar. Respondent, Stephanie, Lucy, and Ilia walked to the car, at which time Respondent argued with Stephanie. When Respondent was in front of Lucy's car, “some guys across the street started yelling[,] and Respondent “told them to mind their own business[,] to which one of the men responded, [S]hut the F up, you stupid haole.”

The men approached, and Kala started arguing with Respondent, who put up his hands because he believed Kala was going to attack him. Respondent initially was in front of Lucy's car. He was punched and “everything kind of went black.” Respondent “tried to duck and kind of run away,” but he was continually “side blinded[.] He tripped on the curb six feet from the car and fell into the photo shop doorway. Respondent was kicked and struck “at least ten” times during the thirty-to-forty-five seconds he was in the doorway. Stephanie attempted to pull Respondent's attackers away, which allowed Respondent to escape.

Respondent “scrambled out of the doorway[ ] when he was struck on the back of his head and he fell forward seven to eight feet from Lucy's car. Respondent made an effort to stand, but he was kicked and he “curled up” on the ground. Respondent attempted to leave, and “crawled[ ] around the car. He “got up and stumbled and just swung a punch.”

According to Respondent, he “swung blindly, and just [attempted] to hit whoever was around [him] because [he] was getting attacked.” He put his head down and was in a crouched position, and “just swung blindly[.] Respondent struck Kapena. Respondent struggled to move away but was hit in the back of the head. Respondent sought to defend himself, but the kicking and punching continued. At some point, the police arrested him.

5. John Cooprider

According to Cooprider, the bar closes at approximately 1:15 a.m. Once customers leave, they may socialize in the parking lot. Bar employees attempt to clear the parking lot to “make sure no one is stumbling, ... fighting, [or] drinking[.] Cooprider's duties included overseeing activities and ensuring people were...

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