State v. Known

• Decision Date: 19 June 2020
• Docket Number: SCWC-16-0000386
• Citation: 465 P.3d 1011
• Parties: STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Cari SALAVEA also known as Cari Carveiro, Petitioner/Defendant-Appellant.
• Court: Hawaii Supreme Court

465 P.3d 1011

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

v.Cari SALAVEA also known as Cari Carveiro, Petitioner/Defendant-Appellant.

SCWC-16-0000386

Supreme Court of Hawai‘i.

JUNE 19, 2020

Randall H. Hironaka, Honolulu, for petitioner

Sonja P. McCullen, Honolulu, for respondent

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

OPINION OF THE COURT BY POLLACK, J.

Under article I, section 14 of the Hawai‘i Constitution and the Sixth Amendment of the United States Constitution, defendants in criminal cases are provided with the right to the effective assistance of counsel at trial. The defendant in this case contends that she was denied this right because her trial counsel failed to adduce critical evidence impeaching the credibility of the State's key witness. Because we conclude that the failure to adduce this evidence had no obvious tactical benefit to the defendant's case and that the adequacy of counsel's representation, when viewed as a whole, was not within the range of competence required of attorneys in criminal cases, we conclude that the defendant was denied the right to the effective assistance of counsel. We also consider the defendant's contention that prosecutorial misconduct was committed during closing argument to address the Intermediate Court of Appeals' interpretation of applicable precedent and because consideration of this issue further evidences that the assistance of defense counsel was ineffective.

I. BACKGROUND AND PROCEDURAL HISTORY

On April 17, 2015, Cari Salavea was charged by felony information with burglary in the first degree, in violation of Hawai‘i Revised Statutes (HRS) § 708-810(1)(c).¹ The felony information alleged that on or about March 27, 2015, Salavea unlawfully entered the residence of the complaining witness (CW) with the intent to commit a crime therein, thereby violating HRS § 708-810(1)(c). Salavea entered a plea of not guilty, and a jury trial was scheduled for the week of June 22, 2015.²

On June 22, 2015, Salavea filed a notice of intent to use evidence (Salavea's Notice) stating that she intended to adduce evidence that the CW was in the process of using methamphetamine in her residence at the time of the alleged burglary. Salavea stated that the CW's drug use undermined the reliability of the CW's perception and memory of the alleged offense. On June 29, 2015, the State moved for a continuance, citing the unavailability of a witness. The court granted the motion over defense objection, and trial was rescheduled for the week of September 8, 2015.

On August 13, 2015, Salavea's counsel, the Office of the Public Defender, moved to withdraw as counsel due to a conflict of interest arising from its ongoing representation of the CW in a separate matter. In a declaration attached to the motion, counsel averred the ethical obligation to raise the CW's substance abuse as a relevant factor in Salavea's case. Counsel stated that continued representation of Salavea would compromise the attorney-client relationship between the Office of the Public Defender and the CW. The court granted the motion on August 25, 2015, ordering the appointment of substitute counsel. At a hearing on September 4, 2015, substitute counsel requested a continuance so that counsel could prepare for trial. The State did not object, and trial was rescheduled for the week of November 16, 2015.

On November 13, 2015, the State filed a notice of intent to use evidence of other acts (State's Notice), asserting that the State intended to present evidence of Salavea's admitted gambling problem, her drug use in 2014 and 2015, and the circumstances of a prior theft conviction. The State contended that this evidence was probative of Salavea's motive, opportunity, intent, and lack of mistake, as well as relevant for impeachment purposes.

The State argued that Salavea's gambling was relevant because Salavea and the CW had gambled together in the past, Salavea had asked the CW to lend her money at some time prior to the alleged burglary, and the CW had refused to do so. The State maintained that these facts demonstrated Salavea's motive to commit the burglary. Additionally, the State contended Salavea's prior drug use was relevant because the CW was expected to testify that she had distanced herself from Salavea because the CW felt she was at risk of relapsing while in Salavea's company based on Salavea's drug use and their history of using drugs together, which in turn upset Salavea and provided a motive for the current offense.

The State also moved in limine to exclude, inter alia, evidence of the CW's history of drug use. If Salavea was allowed to inquire about the CW's history of drug use, the State maintained, Salavea would be opening the door to the CW's explanation that she distanced herself from Salavea to avoid relapsing. In response, Salavea filed a motion in limine seeking preclusion of the evidence that was the subject of the State's Notice. Salavea maintained that her gambling and history of drug use during 2014 and 2015 should not be admitted because they were irrelevant.

The hearing on the parties' motions in limine and notices of intent was held on the day trial commenced. The deputy prosecuting attorney (DPA) contended that evidence of prior drug use by either the CW or Salavea was not relevant and should be excluded at trial. The following was stated in regard to the State's motion in limine:

[DPA]: Judge, if I may elaborate, the reason I put it in here, my position is actually pretty clear-cut. I think any kind of prior drug use or being on [HOPE Probation] or anything like that by either a Complainant or Defendant should not be coming in. The only issue is whether—I understand they're making allegation whether Complainant was using drugs at the time of the incident, and that's a separate issue. This is not what's in this.

THE COURT: Okay. Use of drugs by anybody, whether it be the Defendant or any witness, other witness, I think is legitimate under the case law because it goes to your ability to perceive and recall. It's up to the jury to decide whether there was an effect or not.

....

THE COURT: And drug use on other occasions is irrelevant.

[DPA]: It's irrelevant, yes.

[DEFENSE COUNSEL]: Yeah, but I mean, when [Salavea] saw—I mean, there were drugs at the scene and activity involving those drugs, so—

....

[DEFENSE COUNSEL]: [I]t ties in with drug use at the occasion, and it ties in beyond just, you know, was her perception failing due to drug use.

THE COURT: Okay. That will not come up until your case.

[DEFENSE COUNSEL]: Right.

....

THE COURT: It may have to do with the state of mind, right?

[DPA]: Right, memory, perception, state of mind, but not any kind of other drug use or she's known her as a person who used drugs before or this is what she does all the time. That's what I'm objecting to because it's not relevant.

[DEFENSE COUNSEL]: No, and I agree with the State. I mean, there's certainly not going to be any attempt to expand beyond what [Salavea] perceived the situation to be in that room, not just, you know, how good [the CW]'s perception was but in terms of were there drugs there, was that girl getting into trouble with drugs, you know, that sort of thing.

....

THE COURT: In Cross, I would think we're limited to the event, the event at issue.

[DPA]: Exactly.

[DEFENSE COUNSEL]: Well, based upon what she says—

[DPA]: She cannot—"Were you using the drugs on March 27th?" and the answer is going to be no, and they have to live with that.

THE COURT: Yeah, until something else comes up, and that would be in the Defense's case.

[DPA]: Defense's side, and when Defense's side comes up, they can rebut the testimony with the perception of what happened in the room, if she had blurry eyes or slurred speech or if she was acting funny, whatever, but they cannot go into past drug use, history of drug use, or any kind of "I know she was using drugs even though she looked normal because she always uses drugs," you know, so I want to make sure that the rebuttal is also limited to perception of what happened in this room.

....

I'd also like to point out ... there's a portion of why I filed Notice of Intent. If it does come out and it's pretty much irreparable and the jury here hears Defendant's testimony about any kind of allegations of prior drug use or whatever that goes beyond the scope of that event, State should be allowed to question Defendant and bring it up that they were doing it together over that period of time.

THE COURT: Oh, yeah, it's fair Cross. Both of you have a right to fair Cross, and credibility is always, obviously, an issue in addition to what happened that night or that day.

[DPA]: I'm sorry. Not just that day, but if the history of drug use—

THE COURT: I understand what you're saying. No, you have the right to fair Cross, and [Defense Counsel] has a right to fair Cross.

[DPA]: And this goes to her state of mind.

THE COURT: Okay, I think we've talked about No. 1. I think we understand where we are.

(Emphases added.)

After ruling on the State's remaining motions in limine, the court considered Salavea's motion to exclude the evidence that was the subject of the State's Notice. The following exchange took place with regard to Salavea's history of drug use in 2014 and 2015:

THE COURT: Okay. Defendant's drug use in 2014 and 2015, is that something you still want at this point?

[DPA]: Well, yes. If they open the door through bringing up the whole history and everything else[.]

(Emphasis added.)

The court then considered Salavea's Notice. The court stated that "[Salavea]'s Notice of Intent will be granted, assuming the evidence is that [the CW] ... was using ice at about 1:30, and that's when this incident occurred, and I'm hearing that from the lawyers. I guess that comes in to show perception and recall."³

At trial, the CW testified that she was living with her parents and her six-year-old daughter in a secured apartment building at the time of the incident. An...