State v. Kelekolio

• Decision Date: 15 April 1993
• Docket Number: No. 15798,15798
• Citation: 74 Haw. 479,849 P.2d 58
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. John Anthony KELEKOLIO, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 58

849 P.2d 58

74 Haw. 479

STATE of Hawaii, Plaintiff-Appellee, v. John Anthony KELEKOLIO, Defendant-Appellant.

No. 15798.

Supreme Court of Hawai'i.

April 15, 1993.

As Amended April 23, 1993.

Syllabus by the Court

1. When a confession or inculpatory statement is obtained in violation of federal or state constitutional rights against self-incrimination, the prosecution will not be permitted to use it to secure a defendant's criminal conviction.

2. The constitutional right against self-incrimination prevents the prosecution's use of a defendant's extrajudicial admissions of guilt where such admissions are the product of coercion.

3. The basic considerations that require exclusion of confessions obtained through coercion are the inherent untrustworthiness of involuntary confessions, a desire that criminal proceedings be accusatorial rather than inquisitorial, and a desire that the police not become law breakers in the process of achieving society's valid law enforcement objectives. The burden is on the prosecution to show that the statement was voluntarily given and not the product of coercion. The burden is particularly heavy in cases where the defendant is under arrest.

4. Review of whether a defendant's custodial statement to the police is the product of coercion requires the appellate court to examine the entire record and make an independent determination of the ultimate issue of voluntariness based upon that review and the totality of circumstances surrounding the defendant's statement.

5. A defendant's mental and physical condition can be part of the totality of the circumstances relevant to the issue of the voluntariness of his or her custodial statements. However, in the absence of insanity or mental depletion, neither the voluntary character nor the admissibility of a confession is affected by the mental instability of the person making it. Rather, the person's mental state is relevant only to the weight and effect to be given to the confession by the trier of fact.

6. Mere advice from the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or promise does not render a subsequent confession involuntary. This is because such exhortations to tell the truth are calculated to enhance, rather than diminish, the trustworthiness of an accused's inculpatory statement or confession.

7. Confessions obtained through the use of false representations are not vitiated merely because of the employment of such methods, as long as the false representations are not of a type reasonably likely to procure an untrue statement or confession, regardless of the accused's actual guilt, even if the false representations had been true.

8. Employment by the police of deliberate falsehoods intrinsic to the facts of the alleged offense in question are to be treated as one of the totality of circumstances surrounding the defendant's confession or statement to be considered in assessing its voluntariness; on the other hand, deliberate falsehoods extrinsic to the facts of the alleged offense, which are of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt, will be regarded as coercive per se, thus obviating the need for a "totality of circumstances" analysis of voluntariness.

9. When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.

10. An appellate court's power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system--that a party must look to counsel for protection and bear the cost of counsel's mistakes. Nevertheless, where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not brought to the attention of the trial court.

11. That the jury is to pass upon the facts and the court upon the law is a principle that lies at the foundation of the jury trial system. Correlatively, the admissibility of evidence is a question of law for the trial judge to determine.

12. Whether a confession is voluntary is a mixed question of law and fact. And where the trial judge conducts a hearing to determine the admissibility of a confession, it becomes the duty of the trial judge to find the facts and to apply the legal tests of admissibility. Accordingly, hearings on the admissibility of confessions are conducted out of the hearing of the jury. Nevertheless, a defendant retains the right to put before the jury, as the trier of fact, all evidence, including the facts and circumstances surrounding the making of his confession, relevant to weight or credibility.

13. Evidence surrounding the making of a confession bears on its credibility as well as its voluntariness. Because questions of credibility, whether of a witness or of a confession, are for the jury, the requirement that the court make a pretrial voluntariness determination does not undercut the defendant's traditional prerogative to challenge the confession's reliability during the course of the trial. Thus, evidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess.

14. The circumstances surrounding the taking of a confession can be highly relevant to two separate inquiries, one legal and one factual. The manner in which a statement was extracted is relevant to the purely legal question of voluntariness. But the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant's guilt or innocence. Confessions, even those that have been found to be voluntary, are not conclusive of guilt. And, as with any other part of the prosecutor's case, a confession may be shown to be insufficiently corroborated or otherwise worthy of belief.

15. Different standards of review must be applied to trial court decisions regarding the admissibility of evidence depending on the requirements of the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a "judgment call" on the part of the trial court.

16. Alleged extrajudicial statements of the complaining witness to the defendant would not constitute hearsay if not offered for their truth, but rather to show that they were untrue and that the complaining witness was merely verbalizing fantasies. Moreover, such evidence would not be barred by Hawaii Rules of Evidence (HRE) 412 (1992), which is specifically designed to protect alleged sexual assault victims from being impeached by evidence of past sexual conduct, as distinguished from past sexual cognition.

17. An offer of proof, pursuant to HRE 103(a)(2) (1985), should incorporate a coherent theory of admissibility, grounded in a designated rule or rules, together with case law and other authority as appropriate, plus a proffer covering the nature and substance of the evidence.

18. The decision whether to call witnesses in a criminal trial is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight. Attorneys require and are permitted broad latitude to make on-the-spot strategic choices in the course of trying a case.

19. HRE 603.1 (1985) is primarily applicable to youthful and mentally infirm witnesses.

20. HRE 603.1 is not a discretionary disqualification; the legislative intent and the language of the rule contemplate a single "right/wrong" review standard.

21. The erroneous admission of testimony constitutes harmless error if the appellate court can conclude beyond a reasonable doubt that the properly admitted evidence was such that the improperly admitted evidence could not have affected the jury verdict.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, Honolulu, for defendant-appellant John Anthony Kelekolio.

Doraine Meyer Belnap, Deputy Pros. Atty., Honolulu, for plaintiff-appellee State of Hawaii.

Before LUM, C.J., ^* MOON, KLEIN and LEVINSON, JJ., and WATANABE, Intermediate Court of Appeals Judge, Assigned by reason of vacancy.

LEVINSON, Judge.

The defendant-appellant John Anthony Kelekolio (Kelekolio) appeals his November 15, 1991 convictions of sexual assault in the second degree and kidnapping. Kelekolio raises a number of substantial points of error on appeal, ¹ but only one is outcome dispositive. Because the trial court committed plain error in failing to conduct a competency hearing regarding the complaining witness, and because we are not convinced beyond a reasonable doubt that the error was harmless, we vacate Kelekolio's judgment of conviction and remand for a new trial.

I. BACKGROUND

On January 6, 1991, Kelekolio, a "Handi-van" driver, allegedly kidnapped his lone passenger (hereinafter referred to as ("the complainant")), drove the van he was operating into a parking lot, and sexually assaulted her. The complainant, who suffers from Down's Syndrome, is a mentally retarded woman and functions at the cognitive level of a four- to seven-year-old child. At the time, Kelekolio was transporting the complainant to her place of employment, Helemano Plantation, where she was receiving vocational training in food service.

On January 16, 1991, Kelekolio was charged in a three-count indictment with (1) sexual assault in the second degree (Count I) in violation of Hawaii Revised Statutes (HRS) § 707-731(1)(b) (Supp.1992), ² (2) sexual assault in the third...