State v. Gallagher

• Decision Date: 15 May 2020
• Docket Number: SCWC-14-0001300
• Citation: 463 P.3d 1119
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. John Leslie GALLAGHER, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

463 P.3d 1119

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.John Leslie GALLAGHER, Petitioner/Defendant-Appellant.

SCWC-14-0001300

Supreme Court of Hawai‘i.

MAY 15, 2020

Cynthia A. Kagiwada, for petitioner

Peter A. Hanano, for respondent

McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., DISSENTING, AND WITH NAKAYAMA, J., DISSENTING

OPINION OF THE COURT BY POLLACK, J.

Under Hawai‘i Rules of Evidence Rule 403, relevant evidence may be excluded if its probative value is, inter alia, substantially outweighed by the danger of unfair prejudice. In this case, the defendant was charged with criminal property damage in the second degree for damaging the complainants' vehicle. Over the defense's objections, the circuit court allowed the State to present evidence during trial of four prior incidents of aggressive and erratic behavior by the defendant directed at the complaining witnesses and their home. The circuit court also permitted the State to adduce evidence of the fear the complaining witnesses experienced as a result of the prior incidents and the various countermeasures they undertook in response to these incidents. The defendant was convicted as charged, and the conviction was affirmed on appeal.

On review, we conclude that the risk of unfair prejudice posed by the introduction of the four prior incidents substantially outweighed their limited probative value. We therefore vacate the Intermediate Court of Appeals' judgment on appeal and the circuit court's judgment of conviction and sentence, and the case is remanded to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND & TRIAL

On December 30, 2013, John Leslie Gallagher was charged in the Circuit Court of the Second Circuit (circuit court) with criminal property damage in the second degree in violation of Hawai‘i Revised Statutes (HRS) § 708-821(1)(b) (Supp. 2012)¹ based on an incident that occurred on September 15, 2013. Gallagher pleaded not guilty to the charge.

Prior to trial, Gallagher moved for "an order excluding from use at trial testimonial or documentary evidence relating to any other ‘acts’, bad or otherwise" involving him as irrelevant and unfairly prejudicial under Hawai‘i Rules of Evidence (HRE) Rules 404 and 403. Specifically, Gallagher sought to preclude "any testimonial or documentary evidence regarding alleged incidents" on four specified dates between May and September 2013 involving the two complaining witnesses or other persons.

Thereafter, the State filed two notices of intent pursuant to HRE Rules 404(b) and 608(b) stating it would rely on evidence of four prior incidents of "Harassment," one incident of "Harassment By Stalking," and one incident of "Harassment By Stalking, Simple Trespass, Criminal Tampering and Disorderly Conduct" that occurred between March 24 and September 19, 2013.² The State contended evidence of the prior incidents was relevant and admissible to demonstrate Gallagher's "motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, and/or absence of mistake or accident[,] as well as attacking his credibility as probative of untruthfulness."

At a hearing on the pretrial motions,³ the State contended the sole issue at trial was going to be Gallagher's state of mind and his intent to cause the amount of damage to the complainants' vehicle that resulted from his actions on the night in question. The State asserted that evidence of the five prior incidents would show the conduct underlying the charged offense was not an isolated event, accident, or mistake and that the prior incidents culminated in the incident that resulted in the criminal property damage charge. The court asked the State to elaborate, and the State responded as follows:

[B]asically what happened over the course of about six or seven months, this individual, from out of the blue, just started appearing at our complaining witness's house, essentially taking them to the point where they had to get a protective order against him, installed a video surveillance system on their house, basically because he had come around so many times threatening them ....

According to the State, it was important for the jury to hear about the prior incidents to understand Gallagher's state of mind when he damaged the complainants' vehicle.

In addition to his written motions in limine, Gallagher orally objected to the introduction of the prior incidents stated in the State's notices of intent, arguing that they were not relevant and were more prejudicial than probative because there would be no question as to his identity or whether his actions were the result of an accident or mistake. Evidence of the prior incidents, Gallagher maintained, did not go to the elements that the State needed to prove or to any defenses, and it did not fall within an exception to the rule against character evidence. Additionally, Gallagher argued that the prior incidents were dissimilar to the charged offense because they did not involve property damage. At the conclusion of the hearing, the circuit court denied the defense's motion to exclude the incidents, holding without any elaboration that the five prior incidents fell within the exceptions to HRE Rule 404(b). The court did not exclude any evidence regarding the prior incidents. The only matters excluded were opinions expressed by a complaining witness to the police regarding Gallagher's mental instability and statements that Gallagher had made that raised concerns about his mental health, both of which the State had no objection to excluding.

A jury trial commenced in August 2014. In its opening statement, the State informed the jury that the evidence would show that on September 15, 2013, Gallagher charged up the complainants' driveway and kicked their vehicle multiple times on the passenger's side and then on the driver's side. The State related that the jury would hear and see that Gallagher's kicks left numerous dents on the complainants' vehicle. The State indicated that the jury was "probably going to hear the defense agree with pretty much 99 percent of what I just told you."

The State also told the jury that the night of the incident was not the first time the complainants had seen Gallagher. The defense's objection to this statement was overruled. The State proceeded to inform the jury that Gallagher had become an issue in the complainants' lives over the course of the six months preceding the incident, requiring the complainants to call the police numerous times, file numerous police reports, tint the windows of their home, and install an alarm system and a video surveillance system because of their fear. The prosecutor then told the jury that the Normans had actually sought a protective order against Gallagher. Defense counsel's objection to this statement was sustained, and the statement was stricken.

In the defense's opening statement, counsel stated that it was not disputed that Gallagher went to the complainants' residence on September 15, 2013, and kicked their vehicle. Defense counsel told the jury that the only issue in dispute was the amount of damage that Gallagher intended to cause. The defense submitted that the evidence would show that Gallagher did not intend to cause more than $1,500 in damage and that he was not aware and did not believe that he would damage the vehicle to that extent.

Following opening statements, the State presented the testimony of one of the complainants, Jessica Norman (Ms. Norman). Ms. Norman testified that Gallagher first came into her life on March 24, 2013, which prompted Gallagher to renew his objection on HRE Rules 404(b) and 403 grounds. A bench conference ensued, and Gallagher argued that even if the prior incidents were relevant, the court was required to determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Gallagher maintained that identification was not at issue in the case, the prior incidents did not relate to Gallagher's state of mind as to knowing the amount of the damages, the prior incidents involved different facts, their introduction would confuse the issues and mislead the jury, and there was other evidence regarding the damages.

[DEFENSE COUNSEL]: Judge, I would just object. I know this issue was raised at motions in limine, but I would just make an objection under 404(b). Your Honor, even assuming that these prior incidents are relevant, I believe the Court still has to determine whether there's unfair prejudice to my client and ... whether the need for it substantially outweighs any danger of unfair prejudice.

I would submit, you know, in this case, identification is not an issue. The prior incidents do not go to state of mind as far as knowing the amount of the damage. The facts are different, and ... it would confuse the issue, mislead the jury.

And ... there's other evidence that can go towards the damages[.]

Gallagher indicated that he would like to register a running objection under HRE Rule 404(b) regarding any prior incidents. In response, the State contended that the "escalating series of events" were "highly probative" of Gallagher's mindset and his intent on the night of the incident.

The court overruled Gallagher's objections. The court reasoned that without evidence of the prior incidents, there was no context or explanation for the charged conduct because the parties were not otherwise acquaintances. Further, stated the court, the prior incidents were highly probative of Gallagher's intent to cause the kind of damage that occurred, and in any event the State had the burden of proving each element of the offense beyond a reasonable doubt regardless of whether some of them were conceded in the defense's opening statement. The court concluded that based on these reasons and the "entire 401, 403, 404 analysis" it would allow in the evidence of the prior incidents. The court did not indicate that it would not allow defense counsel's request...