State v. Lagat

• Decision Date: 08 February 2002
• Docket Number: No. 23337.,23337.
• Citation: 40 P.3d 894,97 Haw. 492
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Romulo LAGAT, Defendant-Appellant, and Edward Piloton, Defendant.
• Court: Hawaii Supreme Court

40 P.3d 894

97 Haw. 492

STATE of Hawai`i, Plaintiff-Appellee, v. Romulo LAGAT, Defendant-Appellant, and Edward Piloton, Defendant.

No. 23337.

Supreme Court of Hawai`i.

February 8, 2002.

Michael G.M. Ostendorp and Shawn A. Luiz, on the briefs, Honolulu, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; RAMIL, J., DISSENTING; ACOBA, J., CONCURRING SEPARATELY.

Opinion of the Court by MOON, C.J.

Following a jury trial,¹ defendant-appellant Romulo Lagat appeals from a May 4, 1999 First Circuit Court judgment of conviction and sentence for: unlawful imprisonment in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-722 (1993); unauthorized entry into motor vehicle (UEMV), in violation of HRS § 708-836.5 (Supp.1996); one count of sexual assault in the third degree and two counts of sexual assault in the fourth degree, in violation of HRS §§ 707-732 and 707-733 (1993); and robbery in the second degree, in violation of HRS § 708-841 (1993). On appeal, Lagat argues that the trial court erred in (1) denying his motion for a mistrial because his right to a fair trial was compromised by the crying of the complaining witness and (2) instructing the jury as to the offense of UEMV.

For the reasons discussed below, we affirm the judgment of conviction and sentence.

I. BACKGROUND

The charges against Lagat, filed on August 12, 1998,² arose as a result of an incident between Lagat, Jane Doe (Lagat's former girlfriend), and Kevin Tsutsui (Doe's date). The evidence adduced at trial revealed the following:

In 1995, Lagat, who was then thirty-five years old, met Doe, the complaining witness, who was then fourteen. They entered into a sexual relationship, which lasted until the end of June 1997. At that time, according to the testimony of Doe, she broke off the relationship. Lagat, on the other hand, understood only that Doe needed "space" and that, therefore, the frequency of their dates would be reduced. It is undisputed that they continued seeing each other, that Doe knew Lagat was still in love with her, and that Lagat organized a birthday party for Doe in July 1997.

On the evening of August 16, 1997, Doe was sitting in a parked automobile with Tsutsui, a man she had started dating earlier that month. Tsutsui and Doe had spent the evening together, and he was dropping her off near her home. They stayed in the parked car for a while, kissing and saying goodbye to each other. After exiting the vehicle, Doe saw Lagat running in her direction from a short distance away. Frightened, she got back into the car with Tsutsui, locked the door, and rolled up the window.

According to Doe, Lagat approached the car and, in a voice loud enough to be heard through the closed windows, demanded that Doe return jewelry he had given her during the course of their relationship. He also threatened Tsutsui. Doe testified that, in response, she rolled down her window to hand Lagat several pieces of jewelry, at which time, Lagat reached in and opened the passenger door. Lagat then pulled Doe out of the car, went inside the vehicle, and began beating Tsutsui. Doe also saw Lagat's nephew, Edward Piloton (Edward), on the driver's side of the car, but was unable to see what he was doing there.

Lagat's testimony, which was translated into English from Tagalog with the aid of an interpreter, paints a different picture. He testified that he had called Doe's home earlier in the evening and was told that she was out. His sister allowed him to use her car, driven by her son Edward, to go to Doe's home, where he parked nearby and awaited her return. After waiting for approximately two hours, he noticed someone exiting a car at around midnight and suspected it was Doe. Lagat walked towards the car to verify that it was in fact she. Lagat testified that he confronted Doe on the sidewalk, asking her why she was returning so late. According to Lagat, Doe, in response, insinuated that Tsutsui had been attempting to coerce her into kissing him. Lagat contends that he then entered Tsutsui's vehicle through the opened car door, admittedly without Tsutsui's permission, and sat in the passenger seat. He asked Tsutsui why he had been pressuring Doe to kiss him. Tsutsui responded in anger to his questioning, saying it was none of Lagat's business, and then grabbed Lagat's shirt. Lagat reacted by punching Tsutsui twice in the face. Lagat then exited the vehicle, and Tsutsui drove off.

It is undisputed that, after the incident, Lagat took Doe to his home, where they had sex, and that Doe did not return to her own home until the following day. Doe testified that Lagat verbally and physically abused her after he took her from Tsutsui's vehicle and forcibly placed her in the car driven by Edward. She stated that: (1) Lagat put his finger into her vagina to see if there was any evidence of sexual intercourse between Doe and Tsutsui; (2) while beating her, Lagat forcibly took her remaining jewelry; (3) she was taken against her will to Lagat's home in the middle of the night; (4) Lagat forced her to have sex with him in a small, cramped walk-in closet that functioned as a bedroom; and (5) Lagat threatened to amputate his hands with a steak knife in order to punish himself for the abuse he had inflicted upon her.

During her testimony, Doe, who was seventeen-years old at the time of trial, began crying and spoke in a hushed tone of voice. Shortly after her testimony began, the trial court ordered a recess in the hope that Doe would regain her composure. The trial resumed shortly afterwards, but Doe was unable to refrain from crying during her testimony. A second recess was called after Doe began testifying with regard to the events that took place in Lagat's walk-in closet/bedroom.

At this juncture of the proceedings, Lagat's counsel moved for a mistrial. Counsel maintained that Doe's crying and her "emotionality" would unduly prejudice Lagat's right to a fair trial. The trial court recognized that Doe had been crying "virtually throughout her testimony" and that the crying was interfering with the record because "the court reporter sometimes ha[d] a hard time picking her up as well as some of the jurors." However, the court denied the motion as premature. The court also directed the prosecutor to "inform the witness to try to control her emotions" and suggested that both parties draft cautionary instructions for possible later use should such instructions prove necessary.

Doe completed her testimony later that same afternoon, after the lunch recess and after the testimony of an expert witness. Doe's afternoon testimony began where it had left off: with the events that took place in Lagat's walk-in closet/bedroom. The record indicates that Doe apparently completed the remainder of her testimony, including cross-examination, without crying and that no unscheduled recesses were necessary to allow her to regain her composure. Having previously suggested that counsel draft cautionary instructions regarding Doe's crying, the trial court queried counsel as to whether such an instruction was necessary. The prosecution objected to the need for a cautionary instruction, noting that Doe had "stopped crying after the long break that she had." Defense counsel agreed, wishing to avoid calling further attention to Doe's crying. Accordingly, no cautionary instruction was given to the jury. During closing arguments, both the prosecution and the defense highlighted the episodes of Doe's crying. Defense counsel noted that a photograph of Doe, taken at the Sexual Assault Treatment Center only hours after she had been allegedly "raped and kidnaped," showed no signs of recent crying. Defense counsel proceeded to argue that jurors might infer that Doe

is a tough girl, she doesn't just cry at the drop of a hat. Well, you saw that she does cry at the drop of a hat. She sat up here for over an hour and cried during her direct examination. Why is she upset now? Because she's in an awkward position. She doesn't want to have to be up here and testify about things that aren't true. She doesn't want to put herself in this position. But this story has gathered steam, and it's gathered momentum, and the impact—or frustration that she's felt came to a head right here when she was on the stand, because she cried and cried and cried. She wasn't crying on August 17th of 1997 when this supposedly happened. She wasn't crying then. But why is she crying now? She was crying on the phone when she called her mom. Why is she crying then? She was busted then. She was in a bad situation. She was crying because she was busted.

Defense counsel later made another express reference to Doe's propensity to cry by stating that "[s]he pretends to be a nice, sweet girl. She cries on the witness stand. But underneath there is a very conniving sixteen-year-old [sic], a very sophisticated sixteen-year-old [sic]."

The prosecution's rebuttal argument also addressed the fact that Doe cried on the stand. The prosecutor argued:

If you look at [Doe] in one of the photos at the [Sexual Assault Treatment Center], she doesn't look like she's been crying. [Defense counsel] said, oh, you know, that's bad for her because she's not crying in those pictures. You saw [Doe] on the stand. Yes, [Doe] was crying when she first came on. But at the end—by the end, she had stopped crying. You know, every once in a while, tears would come down. Okay, so just because she's not full balling [sic] in these pictures doesn't mean nothing happened to her.... So if you think about it, you don't just cry a whole day.

The trial court instructed the jury, among other things, that they should "not be influenced by pity for a defendant or a witness or by passion or prejudice against a defendant or a witness." After deliberating, the jury found Lagat guilty of UEMV and robbery in the second degree, as charged. On all of the...