State v. Brede

• Decision Date: 27 November 2018
• Docket Number: NO. CAAP-16-0000578,CAAP-16-0000578
• Citation: 430 P.3d 891 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Sky L. BREDE, Defendant-Appellant
• Court: Hawaii Court of Appeals

430 P.3d 891 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Sky L. BREDE, Defendant-Appellant,

NO. CAAP-16-0000578

Intermediate Court of Appeals of Hawai‘i.

November 27, 2018

On the briefs:

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

Barry L. Sooalo, Honolulu, for Defendant-Appellant.

(By: Leonard, Presiding Judge, Reifurth and Chan, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Sky L. Brede (Brede) appeals from the "Judgment of Conviction and Sentence; Notice of Entry" entered on June 27, 2016 in the Circuit Court of the First Circuit (circuit court).¹ The circuit court convicted Brede of one count of Assault in the Third Degree (Assault 3), in violation of Hawaii Revised Statutes (HRS) § 707-712(1)(a),² and sentenced him to one year of probation and one day of jail.

On appeal, Brede contends that the circuit court improperly limited the questioning of the complaining witness, Henry Frazier (Frazier), thereby violating Brede's right to confront witnesses guaranteed by the Sixth Amendment of the United States Constitution and article 1, section 14 of the Hawai‘i State Constitution.

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, as well as the relevant statutory and case law, we affirm.

Where a factual dispute exists as to who was the first aggressor for purposes of Hawai‘i Rules of Evidence (HRE) Rules 404 and 405, the extent to which evidence of the victim's prior violent acts may be admitted is reviewed under an abuse of discretion standard. See State v. Basque, 66 Haw. 510, 515, 666 P.2d 599, 603 (1983).

With regards to the admissibility of a victim's prior violent acts (including those reflected in the victim's criminal record), the Hawai‘i Supreme Court has stated:

when there is a factual dispute as to who was the first aggressor, a victim's pertinent character trait is an "essential element" to a claim of self-defense, and therefore, evidence of specific instances of conduct concerning that character trait, such as the victim's prior violent acts, may be admissible under HRE Rule 405(b).

State v. DeLeon, 143 Haw. 208, 215, 426 P.3d 432, 439 (2018). However, "[t]he admission of evidence of specific instances of conduct would still need to comply with HRE Rules 401 and 403." Id. at 215 n.9, 426 P.3d at 439 n.9. The trial court has the discretion to determine to what extent, and in what manner, evidence of a victim's criminal record may be allowed. Basque, 66 Haw. at 515, 666 P.2d at 603.

Brede's case at trial rested entirely on his claim of self-defense. Thus, the issue of first aggressor was essential. On the first day of trial, Frazier testified that Brede was the first aggressor. Thereafter, at a HRE Rule 104 Hearing, a witness to the altercation between Frazier and Brede testified that it was Frazier who was the first aggressor. In ruling on Brede's motion in limine to admit evidence of Frazier's assault conviction, the circuit court held that a genuine dispute arose as to who the first aggressor was. Accordingly, the circuit court held that it would allow evidence of Frazier’s criminal record for the limited purpose of addressing that issue. In doing so, the circuit court stated:

THE COURT: Now, I think any prejudice that the State [of Hawai‘i (State) ] could argue about this prior conviction is substantially outweighed by -- you know, it is relevant and it's substantially outweighed by the -- the defendant's right to be able to present a full and fair defense, a proper defense, and to help the jury determine this critical issue: who threw the first blow.

The circuit court clarified that it would be limiting this evidence to the Assault 3 charge, of which Frazier was actually convicted, and precluding any evidence about the original charge of Abuse of Family and Household Member, of which Frazier was not convicted.

During Frazier's direct-examination at trial, the circuit court precluded defense counsel from eliciting (1) information about Frazier’s original charge of Abuse of Family and Household Member and (2) the fact that the victim in that case had been his daughter. In precluding defense counsel from eliciting information about the original charge for Abuse of Family and Household Member, the circuit court referenced its previous ruling at the Rule 104 hearing that only evidence about the Assault 3 conviction would be admitted for the limited purpose of addressing the issue of who was the first aggressor. The circuit court warned defense counsel to be specific in its line of questioning so as not to elicit information about the original charge and violate the circuit court's previous ruling. Then, once Frazier testified as to having been convicted of Assault 3 in 2004, defense counsel asked who the victim was in that case. The State objected and the circuit court sustained the objection.

We conclude that, where it allowed...