State v. Kassebeer

• Decision Date: 30 September 2008
• Docket Number: No. 27660.,27660.
• Citation: 118 Hawai'i 493,193 P.3d 409
• Parties: STATE of Hawai`i, Plaintiff-Appellee-Respondent, v. Anthony KASSEBEER Jr., Defendant-Appellant-Petitioner.
• Court: Hawaii Supreme Court

193 P.3d 409

118 Hawai'i 493

STATE of Hawai`i, Plaintiff-Appellee-Respondent, v. Anthony KASSEBEER Jr., Defendant-Appellant-Petitioner.

No. 27660.

Supreme Court of Hawai`i.

September 30, 2008.

Stephen K. Tsushima, Deputy Prosecuting Attorney, for the plaintiff-appellee-respondent State of Hawai`i.

Joseph R. Mottl III, for the defendant-appellant-petitioner Anthony Kassebeer Jr.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.

Opinion of the Court by LEVINSON, J.

On May 29, 2008, the defendant-appellant-petitioner Anthony Kassebeer, Jr., filed an application for a writ of certiorari, urging this court to review the memorandum opinion of the Intermediate Court of Appeals (ICA) in State v. Kassebeer, No. 27660, 118 Hawai`i 209, 187 P.3d 593, 2008 WL 606932 (Hawai`i Ct.App. February 29, 2008) (ICA's mem. op.). The ICA affirmed the November 16, 2005 judgment of conviction and sentence of the circuit court of the first circuit, the Honorable Dexter D. Del Rosario presiding, convicting Kassebeer of sexual assault in the first degree, in violation of Hawai`i Revised Statutes (HRS) § 707-730(1)(a) (Supp.2003),<sup>1</sup> and kidnapping, in violation of HRS § 707-720(1)(e) (1993).<sup>2</sup> Kassebeer raises the following arguments: (1) he was denied his constitutional right to a fair trial through cumulative errors by the circuit court; (2) the circuit court erred in admitting Kassebeer's handgun into evidence; (3) the circuit court erred in admitting into evidence testimony of a prior incident of physical abuse by Kassebeer against Kassebeer's wife at the time of the incident (the complainant); (4) the circuit court failed to deliver a specific unanimity instruction as to the charge of kidnapping; (5) the circuit court erred in communicating its opinion that an offense had actually been committed; (6) the circuit court erred in preventing Kassebeer from effectively confronting and cross-examining witnesses called by the plaintiff-appellee-respondent State of Hawai`i (the prosecution); and (7) the circuit court erred in refusing to grant Kassebeer's three motions for mistrial.

For the reasons that follow, we hold that the ICA erred in concluding (1) that the circuit court did not plainly err when it failed to include a specific unanimity instruction regarding the kidnapping charge and (2) that the circuit court did not prevent Kassebeer from effectively confronting and cross-examining the complainant. We therefore vacate the ICA's March 28, 2008 judgment and the circuit court's November 16, 2005 judgment. This matter is remanded to the circuit court for a new trial on the first degree sexual assault and kidnapping counts.

I. BACKGROUND

At the time of the trial, Kassebeer and the complainant were divorced, but they had previously been married for over six years and had two children. They had shared a residence in Pearl City (the residence) until mid-March 2004, when Kassebeer voluntarily moved out due to marital problems. Kassebeer went to live with his sister, Krystal Kassebeer. Kassebeer and the complainant kept in contact following the separation, including continued sexual relations "at least once or twice," the last instance occurring a week prior to the events at issue. Kassebeer and the complainant were involved in incidents on the evening of April 9, 2004, the early morning of April 10, 2004, and the afternoon of April 10, 2004, the facts of which were disputed at trial.

On April 13, 2004, an O`ahu grand jury returned an indictment charging Kassebeer with sexual assault in the first degree, in violation of HRS § 707-730(1)(a), sexual assault in the third degree, in violation of HRS § 707-732(1)(f) (Supp.2004),³ and kidnapping, in violation of HRS § 707-720(1)(e).

Prior to the commencement of trial, the circuit court heard motions in limine from both parties. The circuit court ruled that all testimony regarding the complainant's use of or trafficking in illegal drugs be excluded, except for her use of drugs that would affect her ability to perceive or remember events on the dates of the incidents. Kassebeer argued that the incident that occurred in the early morning of April 10, 2004 constituted a prior bad act that should be excluded under Hawai`i Rules of Evidence (HRE) Rule 403⁴ due to its "minimal probative value and exceedingly great prejudice." The circuit court ruled that all testimony concerning alleged prior incidents of physical, emotional, or verbal abuse by Kassebeer against the complainant be excluded, with an exception for the alleged use of force by Kassebeer against the complainant on the early morning of April 10. Following jury selection, the trial began on August 5, 2005.

A. Trial

At trial, the prosecution called Honolulu Police Department (HPD) Officer Barbara Donato, Andrew Kim (Kim), HPD Detective Dennis Kim (Detective Kim), Tabatha Hashimoto-Matautia, and the complainant as witnesses. The defense called Krystal Kassebeer, Nadine Tan-Salle, M.D., and Kassebeer as witnesses. The following facts are taken from the testimony adduced at trial and are organized by incident.

1. The April 9, 2004 late night incident

Kassebeer, Andrew Kim, and Christopher Freitas were driving around Waikīkī on the night of April 9, 2004, when they saw the complainant's truck going towards the Hilton Hawai`ian Village (the Hilton). They followed the truck to the Hilton because Kassebeer suspected that the complainant was driving to rendezvous with another man, but she was in fact going there to pick up Hashimoto-Matautia, who worked in one of the stores located within the Hilton.

At the Hilton, Kassebeer attempted to talk with the complainant, who refused to roll down her window. Kassebeer noticed that the complainant had a black eye and an injured lip, so he inquired as to how she received the injuries, but the complainant became upset and told Kassebeer to leave her alone. The complainant attempted to drive off, which prompted Kassebeer to jump into the bed of her truck; eventually, she allowed him to enter the truck.

Once inside the truck, Kassebeer renewed his inquiry with respect to her injuries, and she responded that she had fallen down some stairs at a nightclub. When Hashimoto-Matautia arrived at the scene, Kassebeer asked her how the complainant had received the injuries, to which Hashimoto-Matautia responded that the complainant had fallen off a stool at her house. Kassebeer testified that these conflicting accounts regarding the cause of the complainant's injuries led him to suspect that the complainant and Hashimoto-Matautia were hiding something. The complainant and Hashimoto-Matautia testified that Kassebeer declared that, if he could not have the complainant, then no one could and that he would make everyone's life miserable.

Hashimoto-Matautia and the complainant left the Hilton in the complainant's truck, but Kassebeer and his friends followed them. According to the complainant's and Hashimoto-Matautia's testimony, Kassebeer phoned the complainant and accused her of dating one of Hashimoto-Matautia's co-workers. In his testimony, Kassebeer denied making the phone call. After unsuccessfully trying to elude Kassebeer's car, the complainant drove back to the Hilton, where she called the police. However, by the time the police arrived, Kassebeer was nowhere to be found.

2. The April 10, 2004 early morning incident

Andrew Kim and Kassebeer testified that immediately after the incident at the Hilton they traveled to the complainant's apartment in order to search for evidence that the complainant was sleeping with another man. They went through the complainant's laundry and placed a piece of scotch tape on the rear sliding door of the apartment so that they could determine whether the complainant was sneaking another man into the home through the back door. They also discovered a blurry photograph that appeared to depict a man and woman engaging in a sexual act. Kassebeer testified that, unbeknownst to Kim, he had brought his handgun into the residence and had placed it under the bed because he did not know what to expect and he thought that there might be a confrontation with the man he believed had beaten up the complainant.

While the search was underway, Hashimoto-Matautia and the complainant were driving home separately after the incident at the Hilton. Hashimoto-Matautia testified that, at approximately 2:00 a.m., she was talking to the complainant on her cellular phone when she heard the complainant scream, "[O]h, my gosh." The call ended abruptly. The complainant testified that on the other end of the line the following sequence of events occurred. She had entered her home and was shocked to see Kassebeer in her hallway. He proceeded to grab her from behind, cover her mouth with his hands in order to muffle her screams, and drop her to the ground. Slamming her head against the tile, he asked, "[W]ho are you fucking? Who are you fucking[?]" He tore the cellular phone away from her ear, hit her across the chin with the phone, and resumed his inquisition regarding her sexual activities.

Kassebeer and Andrew Kim testified to a different version of this encounter. By their account, Kassebeer walked up to the complainant, grabbed her by the shoulders, "put" her on or "took" her to the ground, and said, "I just need to talk to you." Kassebeer claims that he did not hit the complainant and, in fact, assured her that he would do no such thing, but he did admit to covering her mouth. Kassebeer testified that he grabbed the complainant's cellular phone from her and that, while they were fighting for the phone, the complainant hit herself on the chin.

When Kassebeer released the complainant, she stood up, whereupon she saw Andrew Kim. Kim confronted her with the blurry photograph ostensibly portraying a sexual act. The complainant told Kim to take a picture of her with her camera in order to demonstrate the poor quality of its photographs. Kim obliged and remarked, "[Y]ou're right, you really...