State v. Grace

• Decision Date: 21 March 2005
• Docket Number: No. 25970.,25970.
• Citation: 107 Haw. 133,111 P.3d 28
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Ernest L. GRACE, Sr., Defendant-Appellant.
• Court: Hawaii Court of Appeals

111 P.3d 28

107 Haw. 133

STATE of Hawai`i, Plaintiff-Appellee, v. Ernest L. GRACE, Sr., Defendant-Appellant.

No. 25970.

Intermediate Court of Appeals of Hawai'i.

March 21, 2005.

Phyllis J. Hironaka, Deputy Public Defender, State of Hawai'i, on the briefs, for defendant-appellant.

Mary Ann J. Holzl-Davis, Deputy Prosecuting Attorney, County of Hawai'i, on the briefs, for plaintiff-appellee.

BURNS, C.J., LIM and FUJISE, JJ.

Opinion of the Court by LIM, J.

Ernest L. Grace, Sr. (Grace) appeals the June 13, 2003 judgment of the Family Court of the Third Circuit¹ that convicted him of abuse of a family or household member, a violation of Hawaii Revised Statutes (HRS) § 709-906(1) (Supp.2004).² Because the family court admitted hearsay against Grace that violated bedrock Sixth Amendment confrontation clause³ rights—as those rights were recently radically reinterpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)—and because the error was not harmless beyond a reasonable doubt despite substantial evidence in support of the conviction, we vacate and remand.

I. Background.

At Grace's bench trial, his wife, Samara Grace (Samara), testified first for the State. Samara remembered that on July 31, 2002, at around eight in the morning, she took her daughter to play in the park near their Hilo apartment. Samara had other children⁴ with her as well—"a whole buncha kids .... running from ages 10 to 6." Samara took her cell phone with her to the park. She also took Grace's cell phone. Grace stayed in the apartment.

Early that evening, Samara was using Grace's cell phone when he appeared in the park and demanded, "Gimme da phone." Samara could tell he had been drinking. "I could smell the liquor on him." In Samara's estimation, "He was already feeling good drunk[.]" Samara did not relinquish the phone because she was using it to converse with her grandmother in Honolulu. Then, "He just grabbed the phone. And when—when he grabbed it he scratched me, like grabbing the phone and scratched me.... Like, it didn't have the marking. It just showed red, but it went away." Angry with Grace because he had wrested the phone from her, Samara used her own cell phone to call the police. They arrived about ten minutes later and arrested Grace. The deputy prosecuting attorney (DPA) asked, "Is it your testimony that nothing else happened besides the defendant taking the phone away from you?" Samara answered, "Yeah."

At this point, the DPA produced a statement form that Samara had filled out and signed shortly after the cell phone incident. It stated that Grace had hit her during the incident. Samara explained: "No. He never hit—he never punched me, but he grabbed the phone, and I was on my meds when he did that." Samara maintained that she was upset with Grace and wanted to get back at him when she filled out the form, and that what she wrote was not true. Samara acknowledged she was still married to Grace. "Right now we're doing fine." Samara also admitted to the DPA that she did not want to see her husband get into trouble. She did not want to testify, but did only because she had been subpoenaed.

Under questioning by defense counsel, Samara testified that the reason she called the police was to tell them she was taking her husband's car. She was "frustrated" after the incident and wanted to go for a drive with her daughter to cool off. She felt she had to inform the police because Grace would sometimes call the police and warn them she was not allowed to take his car. Grace would then tell Samara that the police would arrest her if she did. Samara claimed that when the police arrived that evening, they said she could take her husband's car, but warned her that "`it's under his name.'"

Under questioning by the family court, Samara remembered that her frustration with the situation also stemmed from an incident earlier that day in which Grace was yelling at her from their apartment lanai, to "get upstairs." She also clarified that she did not take her husband's car after all, for fear of getting arrested for doing so without his permission.

Hawai'i County Police Officer Lorenzo Artienda (Officer Artienda) testified next. He remembered overhearing a dispatch to the scene and going there to help out. Officer Artienda went because he had gone there earlier that day and was "familiar with the people involved." At the park, Officer Artienda spoke with Samara, who had several children with her. She seemed a "little bit" upset. She did not mention medications. Officer Artienda related: "Um, she initially stated that, um, [Grace] took the cell phone and that, um, he had scratched her on her wrist and punched her or whacked her." Officer Artienda did not see any injuries on Samara, but added that injuries are not always visible in abuse cases. Leaving the witness interviews to another police officer, Officer Artienda went to speak with Grace in the apartment. Grace told Officer Artienda that "it was his phone and he was gonna retrieve the phone."

Officer Artienda arrested Grace and took him to the police station. There, Officer Artienda advised Grace of his rights and took a statement from him. Grace denied hitting Samara, and told Officer Artienda that "if he did hit her I would be able to see it or the injuries." Officer Artienda confirmed that Grace was calm and "real cooperative." Officer Artienda did not notice whether Grace had been drinking.

Hawai'i County Police Officer Stacy Leialoha (Officer Leialoha) arrived about five minutes after hearing the dispatch to the scene, and was told by Officer Artienda to assist in investigating the case. She interviewed "two young girls, uh, who are, um, witnesses to the incident." Officer Leialoha did not identify one of the girls and did not fully identify the other. When the DPA asked Officer Leialoha what she had learned from the interviews, defense counsel made a hearsay objection. The family court asked whether the DPA could cite any hearsay exception. The DPA cited "present-sense impression." Opining that the proffered exception usually applies only to an overheard remark, "made while the declarant was perceiving the event or condition or immediately thereafter[,]" Hawaii Rules of Evidence (HRE) Rule 803(b)(1) (1993), the family court suggested instead that the interviews might come in as "excited utterances," or statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." HRE Rule 803(b)(2) (1993). The family court allowed the DPA to further question Officer Leialoha, "to determine whether or not they were, uh, under the stress of the excitement at the time[.]"

Under further questioning by the DPA, Officer Leialoha recalled that the two girls were ages ten and eleven, but she could not remember which was which. When asked about the girls' "emotional state," Officer Leialoha replied, "Um, they seemed somewhat excited because, um, police were there, in my opinion, and, um, they seen what happened so they were anxious to tell what they saw." Officer Leialoha observed that the girls were "nervous looking." The girls' hands were fidgeting and they were quick to get their stories out, "as if they were nervous." The girls were not crying. When the DPA asked whether the girls were upset, Officer Leialoha answered, "Um, not really." On voir dire, Officer Leialoha confirmed that the girls did not come running to her when she arrived on the scene. The family court ultimately decided that the girls' statements were indeed "excited utterances."

On that basis, Officer Leialoha testified that the girls told her they had witnessed the cell phone incident and had seen Grace hit Samara "on her body." One of the girls—whom Officer Leialoha identified only as "Leopoldino"—told Officer Leialoha that "she saw Mr. Grace hit Mrs. Grace two times on the shoulder and, uh, scratched her left arm." On cross-examination, Officer Leialoha remembered that the girls told her they were with Samara "under the big tree in the grass near, um, near the river" when the incident happened. The girls said they were talking to each other at the time.

After the State rested, defense counsel moved for a judgment of acquittal. Besides arguing insufficiency of the evidence in a couple of respects, defense counsel averred that the admission of the girls' statements violated Grace's confrontation clause rights. The family court denied the motion.

Grace was the only witness in his defense. He remembered that two of his friends—Ann Lewis and a man named Dennis whose lengthy last name he could not pronounce—were visiting him in the apartment that day. His friends were drinking beer, but Grace claimed that he himself was not. Grace could see Samara in the park from the lanai of his upstairs apartment. At some point in the day, Grace called over to Samara from the lanai and asked her to come back home to cook. Samara indicated that she was going to return after a little while. Grace's two friends left in the early evening. When Grace walked them downstairs, he decided he might as well go and get his cell phone back from Samara. He was worried she might be running up an intolerable long distance bill.

According to Grace, no one was sitting near Samara in the park, except for an old lady he did not really know. When Grace got to where Samara was sitting, he asked her for his cell phone. Grace reached over and got the phone from her without incident and walked back to the apartment. When the police arrived ten or fifteen minutes later and arrested him, Grace was bewildered—"I asked, `For what?'" Grace denied scratching Samara when he took the phone from her. Grace also denied touching or hitting her in any way.

On cross-examination, Grace maintained that he drinks only on occasion because he takes "narcotic medication." He again denied drinking that day. He explained that the...