State v. Jennings
| Decision Date | 09 November 2012 |
| Docket Number | No. CAAP–11–0000005.,CAAP–11–0000005. |
| Citation | 128 Hawai'i 497,291 P.3d 395 |
| Parties | STATE of Hawai‘i, Plaintiff–Appellee, v. Ene JENNINGS, Defendant–Appellant. |
| Court | Hawaii Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of the First Circuit (Cr. No. 09–1–1040).
Randal I. Shintani, on the briefs, for Defendant–Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
FOLEY, PRESIDING J., REIFURTH and GINOZA, JJ.
Defendant–Appellant Ene Jennings (Jennings) appeals from the Judgment of Conviction and Sentence entered December 6, 2010, in the Circuit Court of the First Circuit 1 (circuit court). A jury found Jennings guilty on two counts of sexual assault in the fourth degree in violation of Hawaii Revised Statutes (HRS) § 707–733(1)(a) (1993)2 and he was sentenced to one year of incarceration.
On July 8, 2009, the State of Hawai‘i (State) filed a complaint charging Jennings with two counts of sexual assault in the fourth degree and one count of open lewdness stemming from an incident that occurred April 9, 2008 involving Jennings and Complainant Witness (CW). Jennings allegedly masturbated in front of CW then grabbed her breasts and genitalia. CW reported the incident to the Honolulu Police Department (HPD) on April 15, 2008. On July 10, 2008, an HPD police detective (police detective) videotaped CW's statement (videotape).
On appeal, Jennings contends the circuit court erred in:
(1) allowing the police detective's videotape into evidence without redacting inadmissible hearsay and prejudicial elements;
(2) not having the jury view the videotape in open court;
(3) not having the jury view the videotape although it was admitted into evidence; and
(4) not providing the jury with a limiting instruction regarding the limited purpose of the videotape and witness testimony.
The jury trial commenced April 1, 2010, and during Jennings's cross examination of CW, Jennings sought to introduce portions of the videotape to impeach CW. The State objected. The circuit court advised Jennings to continue questioning CW about the videotape while the circuit court considered whether the videotape would be shown. Jennings continued his cross examination, and at recess, the circuit court advised the State and Jennings to come to an agreement about use of the videotape during trial.
After recess, following a lengthy discussion in which the State and Jennings disagreed as to which portions of the videotape should be shown to the jury, the circuit court instructed Jennings to continue cross examination, and during the lunch recess,3 the State and Jennings were to come to an agreement on which portions would be submitted into evidence. After the lunch recess, the cross examination continued with no further discussion of the videotape. Before adjourning for the day, the circuit court instructed the jury regarding the videotape stating: “By stipulation or agreement between the parties, a portion of the [videotape] will be admitted into evidence for your viewing during deliberations.”
On the next trial day, Jennings again brought the issue of the videotape before the circuit court, asking to allow the jury to see two portions in the courtroom and objecting to the State's request to allow the entire videotape into evidence. The State contended that both parties reached an agreement to allow the entire videotape to be shown during jury deliberations. After a lengthy discussion, the circuit court agreed to allow the entire videotape into evidence (minus a portion of the videotape that discusses an incident between CW and Jennings's wife) which would be made available to the jury during deliberations.
The record is unclear as to whether the jury viewed the videotape, or any part thereof.4 The record is also unclear as to whether the circuit court viewed the videotape.
The appellate court applies State v. Ortiz, 91 Hawai‘i 181, 189, 981 P.2d 1127, 1135 (1999) (internal quotation marks and citations omitted).
Jennings questioned CW regarding her statements on the videotape, and CW denied making the statements or could not recall such statements. The exchange was as follows:
The Interpreter: Yes, that's true because I cannot control my emotions.
....
The Interpreter: He told me he was sorry and he asked for an apology.
....
....
....
[Defense Counsel]: And when you described how he was touching you during the interview, you laughed and said my husband was upset when he heard about that, and you laughed, right?
....
The Interpreter: I did not laugh. I was afraid that my husband might construe it that we have a relationship with each other.
....
....
The Interpreter: I felt the contact but it did not hurt that much.
Jennings argues the jury was presented with prejudicial, inadmissible hearsay on the videotape. Jennings argues the jury should have been shown only the two portions of the videotape relating to CW's impeachment on prior inconsistent statements. The State asserts the completeness doctrine 5 allowed for the entire video to be entered into evidence. The circuit court allowed the entire video into evidence with the redaction of a small portion disclosing an unrelated incident between CW and Jennings's wife.
Under Hawaii Rules of Evidence (HRE) Rule 106, “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” HRE Rule 106. This evidentiary rule protects the trier of fact from being misled by written or recorded statements taken out of context. Monlux v. General Motors Corp., 68 Haw. 358, 367, 714 P.2d 930, 936 (1986). HRE Rule 106 does not necessarily permit wholesale admission of entire writings or recordings, but allows the court to admit additional evidence only as required to prevent the jury from becoming misled.
In State v. Brooks, the accused sought to admit portions of a decedent's testimony, while claiming the confrontation clause prevented the State from including additional portions to put the decedent's statements in context. State v. Brooks, 125 Hawai‘i 462, 467, 264 P.3d 40, 45 (2011). For each statement the accused requested to present, the State requested that an additional statement be admitted as well. Id. at 468, 264 P.3d at 46. The State did not seek to have the entire statement offered into evidence, but selected portions necessary to put the decedent's statements into context. Id. Where the additional statement's were necessary to ensure the proper context for the decedent's statements, the circuit court properly allowed the statements into evidence. Id. at 474, 264 P.3d at 52.
Unlike Brooks, the State in this appeal did not request specific additional portions of the videotape to place CW's testimony into context. The circuit court admitted the videotape into evidence with no record as to any review by the circuit court....
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