State Of Haw.‘i v. Santos

• Decision Date: 19 August 2010
• Docket Number: No. 29337.,29337.
• Citation: 238 P.3d 162,124 Hawai'i 130
• Parties: STATE of Hawai‘i, Petitioner-Plaintiff-Appellee, v. Kenneth DELOS SANTOS, Respondent-Defendant-Appellant.
• Court: Hawaii Supreme Court

124 Hawai'i 130

238 P.3d 162

STATE of Hawai‘i, Petitioner-Plaintiff-Appellee,

v.Kenneth DELOS SANTOS, Respondent-Defendant-Appellant.

No. 29337.

Supreme Court of Hawai‘i.

Aug. 19, 2010.

Stephen K. Tsushima, Deputy Prosecuting Attorney, for petitioner-plaintiff-appellee.

Kirsha K.M. Durante, Deputy Public Defender, (Taryn R. Tomasa, Deputy Public Defender, on the briefs) for respondent-defendant-appellant.

MOON, C.J., NAKAYAMA, DUFFY and RECKTENWALD, JJ. and ACOBA, J., concurring separately.

Opinion of the Court by NAKAYAMA, J.

On April 1, 2010, this court accepted a timely application for a writ of certiorari filed by petitioner-plaintiff-appellee, the State of Hawai‘’ i(“the prosecution”), on February 18, 2010, requesting that this court review the Intermediate Court of Appeals' (“ICA”)November 24, 2009 judgment on appeal, entered pursuant to its November 9, 2009 Memorandum Opinion reversing the Family Court of the First Circuit's (“family court”)August 6, 2008, Judgment of Conviction and Sentence.¹Oral argument was held on June 3, 2010.

In its application for writ of certiorari before this court, ²the prosecution presents the following question:

Did the ICA gravely err in holding the family court was wrong by admitting into evidence a police officer's testimony regarding the complainant's hearsay statement as an excited utterance?

For the following reasons, we hold that the ICA gravely erred by determining that the complainant's statement that “my boyfriend beat me up” was not admissible as an excited utterance.We also hold that the admission of this statement does not violate the confrontation clause of article I, section 14 of the Hawai‘i Constitution.Therefore, we vacate the ICA's judgment on appeal and remand to the family court for a new trial.

I.BACKGROUND

Kenneth Delos Santos(“Delos Santos”) was convicted of Abuse of Family or Household Members, in violation of Hawai‘i Revised Statutes (HRS) § 709-906(Supp.2008).³The prosecution claimed that on March 26, 2008, Delos Santos struck his girlfriend (“the Complainant”) in the face and stomped on her thigh in their apartment in Waikiki.The crucial piece of evidence supporting Delos Santos' conviction was Officer Jason Kubo's (“Officer Kubo”) testimony summarizing the Complainant's statements when he arrived at the scene shortly after the incident.The family court admitted these statements as excited utterances.The relevant testimony is described below.

A. August 5, 2008, Hearing

The family court held a Hawai‘i Rules of Evidence(HRE)Rule 104 hearing in part to determine the admissibility of the Complainant's statements to the police.At the hearing, two witnesses testified.

The Complainant testified that Delos Santos was her boyfriend and that they were living together in a hotel in Waikiki at the time of the incident.She recalled that she and Delos Santos were involved in an incident on March 26, 2008.She did not remember calling the police, making a written statement to the police, or “anything that happened that night[.]”

The prosecution then called Jason Kubo, an officer of the Honolulu Police Department.He testified that he responded to an “argument type call” at approximately 1:07 in the morning.When he arrived, he“met with [s]ecurity down stairs.”He then went up to the room.When he arrived at the room with security, he knocked on the door, entered the room, and observed the Complainant and Delos Santos.Officer Kubo described the Complainant's emotional state as “clearly in a state of fear and crying.”Officer Kubo “immediately” spoke with her, and she“basically said that her boyfriend beat her up.”The deputy prosecuting attorney also elicited the following testimony from Officer Kubo:

Q.Is that specifically what she said?

A. Yes-well, after speaking with her and getting the full facts and circumstances, basically she said she was arguing with Mr. Delos Santos about some other matters and while in the room he struck her once in her face hitting her in her jaw with enough force to cause her to fall.

While on the ground, the victim actually said that while lying on the ground he was-he had stomped on her right thigh several times causing pain.

Officer Kubo testified that her emotional state did not change at any point during this interaction, and that she“continued crying and at all times [he] kept trying to calm her down.”Officer Kubo also obtained a signed written statement from the Complainant.⁴He testified that he“had to keep calming”the Complainant down.

On cross-examination, Officer Kubo testified that the incident occurred at 1:00 a.m. and that he arrived at the hotel at around 1:10 in the morning.During his interview with the Complainant, he asked a series of questions listed on the written statement, including the question “what happened.”He also testified that “being a police officer,”he wanted the Complainant to answer the questions on the written statement.

At the close of the hearing, the trial court determined preliminarily that the prosecution laid the proper foundation to admit the statements under the excited utterance exception to hearsay.The court stated that:

What we have down is the Complaining Witness' demeanor during her utterances.It was not the situation where this is a lengthy narrative or lengthy recitation, that he did observe her demeanor, that she was continuously crying, that he attempted to calm her down.

B. August 6, 2008, Trial

At trial, the prosecution called the Complainant and Officer Kubo as witnesses.The Complainant testified that Delos Santos was her boyfriend at the time of trial and the incident.They lived together at the time of the incident at a hotel in Waikiki.She testified that she did not remember anything that happened on the night of the incident.She testified that she woke up the next afternoon in Delos Santos' car feeling pain from a hangover and that her legs were sore from rollerblading.

On cross-examination, she testified that she did not remember anything because she drinks a lot, and was drinking on the night of the incident.She did not remember how much she drank that night, but remembered drinking at a hotel and then a bar.

Officer Kubo also testified at the trial.His testimony was similar to the Rule 104 hearing, with some differences.He testified that he received a call from dispatch at “[a]pproximately 1-about 1:05” and that it took him a “few minutes” to get to the hotel.He testified that he arrived at the hotel “shortly after about 1:05.”He met with security downstairs and took the elevator to the room with security and other officers.⁵When arriving at the room, he met with the Complainant, Delos Santos, and another waiting security officer.When he arrived, Delos Santos was in the threshold of the door to the hotel room.He testified that he went in the room to investigate a crime.After entering the room, Officer Kubo noticed that the Complainant was “really shaken, crying and appeared to be in a lot of pain.”He also observed her limping.Officer Kubo testified that before the Complainant said anything, he“asked her what happened when [he] went in there....”Officer Kubo testified that he asked her “what happened” because of “the apparent pain that she was in and also for officer safety reasons....”At the time he asked, the Complainant was “crying” and “shaken[.]”Over objection, Officer Kubo testified that she responded that “my boyfriend beat me up.”He then “walked with her further into the room, [and] knowing that she was in pain also, [he] wanted to sit her down.”He walked her to a table “inside the room” and “sat her down.”He then asked “what do you mean[.]”The deputy prosecuting attorney elicited the following testimony about the conversation:

Q.And at the time you asked her, what do you mean, why did you ask her that question?

A.I need to know what happened, especially for our safety-wise also in there.

Q.And at the time that you asked her what happened, what was her emotional state like?

A.Still she was shaken, crying.And I needed a lot of time to try to calm her down also.

Q.And how did she respond to your question, what do you mean?

* * *

A.She basically said that she got into an argument with her boyfriend and while inside the apartment-hotel room, rather, he punched her once in the face with enough force to her to fall onto the ground.While on the ground, he stomped on her right thigh.⁶

During his conversation with the Complainant at the table, he could see the right side of “her lower chin area starting to swell” and that her chin had “a red mark....”She also “kept favoring her leg” and he noticed a “two-inch-by-two-inch red mark” on her right thigh area.The mark was “circular.”He also noticed “slight abrasions to her knee.”Officer Kubo left the room approximately forty-five minutes after he met the Complainant, and testified that the Complainant's emotional state did not change during that period.He testified that the Complainant“had no smell of alcohol and she-other than being scared, frightened, crying and in pain, ... appeared totally sober to me.”Additionally, he testified that the Complainant was unsteady on her feet when he left because of the pain to her right thigh.

At the close of trial, the jury found Delos Santos guilty of Abuse of Family and Household Members, and the family court subsequently placed Delos Santos on probation for two years and sentenced him to ten days in prison with credit for time already served.The family court stayed the sentence pending appeal.Delos Santos subsequently appealed the trial court's judgment.

C.The ICA's November 24, 2009, Judgment On Appeal

Delos Santos appealed to the ICA raising three points of error: 1) the “family court erroneously admitted [the Complainant]'s purported statements to Officer Kubo as an excited utterance under HRE 803[;]” 2) “Delos Santos was not afforded meaningful opportunity to cross-examine [the Co...