State v. Brain
| Decision Date | 06 December 2018 |
| Docket Number | NO. CAAP-17-0000397,CAAP-17-0000397 |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Douglas David Allen BRAIN, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Leneigha S. Downs, Deputy Prosecuting Attorney, County of Hawai‘i, for Plaintiff-Appellee.
Jacqueline R. Ma‘ele, Deputy Public Defender, for Defendant-Appellant.
(
Defendant-Appellant Douglas David Allen Brain (Brain) appeals from the Judgment and Notice of Entry of Judgment, filed on April 12, 2017, in the District Court of the Third Circuit, North and South Hilo Division (District Court).1
Brain was convicted of Harassment, in violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(b) (Supp. 2014).2
On appeal, Brain claims (1) the District Court erred by sustaining relevance objections to his testimony describing the sequence of events, (2) the District Court erred by refusing to allow a defense rebuttal witness to testify, and (3) there was insufficient evidence to convict him.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Brain's points of error as follows:
(1) On appeal, Brain contends the District Court erred by excluding his testimony regarding his arrest by the police because it was relevant to determine the sequence of events, his state of mind, and his intent to harass or cause bodily injury to the complaining witness. Brain contends the testimony was directly relevant to contradict the complaining witness's testimony and to show it was unlikely he would intend to harass the complaining witness while handcuffed and surrounded by police officers.
The complaining witness testified that after he confronted Brain about a noise disturbance, Brain made a hand gesture imitating a gun and said "if I had a gun right now, I would shoot you," prior to the police being called. The District Court excluded Brain's testimony regarding his arrest because "everything that occurred with the police [was] irrelevant." " ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401 of the Hawaii Rules of Evidence (HRE). Brain admitted making the statement to the complaining witness. However, Brain also testified that the complaining witness Brain's testimony regarding his arrest was relevant evidence tending to make it more probable he made the statement in reaction to his arrest and less likely the complaining witness would reasonably believe Brain intended to cause bodily injury. Therefore, the District Court erred by excluding such testimony.
(2) Brain contends that the District Court erred by refusing to allow a surrebuttal witness, Brandelynn Mason (Mason), to testify. When Brain requested to call Mason as a witness, the prosecutor raised the possibility that Mason might invoke her Fifth Amendment right during testimony, so it might require her to consult with counsel. The court then asked Mason if she knew that there were possible charges against her. She said yes, but she did not know what they would be. The court informed Mason that she might want to have an attorney and then asked her if she wanted an attorney. She said yes and, at that point, the court said that it would not allow Mason to take the stand. Mason did not refuse to testify.
"The right to compulsory process affords a defendant in all criminal prosecutions, not only the power to compel attendance of witnesses, but also the right to have those witnesses heard." State v. Acker, 133 Hawai‘i 253, 281, 327 P.3d 931, 959 (2014) (quoting State v. Mitake, 64 Haw. 217, 224, 638 P.2d 324, 329 (1981) ). "A trial court is not required to have a witness take the stand solely to invoke his privilege against self incrimination in front of the jury." Id. at 282, 327 P.3d at 960 (citation omitted). Once a witness appears in court and refuses to testify, the right to compulsory process is exhausted. Id. (citation omitted).
Mason only requested the assistance of an attorney after being cautioned that if she testified she may be asked questions and that charges related to the incident were possible. Therefore, it was error to preclude Mason from testifying at trial without ascertaining whether she would testify and/or invoke...
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