State v. Long

Decision Date04 March 2020
Docket NumberNO. CAAP-17-0000385,CAAP-17-0000385
Citation459 P.3d 791 (Table)
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Dewitt LONG, Defendant-Appellant
CourtHawaii Court of Appeals

On the briefs:

Shawn A. Luiz, for Defendant-Appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee .

(By: Ginoza, Chief Judge, Fujise and Wadsworth, JJ.)


Defendant-Appellant Dewitt Long (Long) appeals from the April 5, 2017 Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (Circuit Court).1


In August 2014, the complaining witness (CW), then a thirteen-year-old female, was confronted by her father and stepmother about smoking marijuana in a video on her phone. CW revealed she smoked marijuana to cope with past sexual abuse by Long, her mother's former boyfriend. In CW's account, Long abused her on weekend visits to the homes Long shared with CW's mother. Long would wait until CW's mother left for work early in the morning, check if her siblings were sleeping, enter her room, close the door and blinds, and get into her bed. CW described Long as placing his tongue in her vagina, placing his fingers in her vagina, touching her breasts with his hand and mouth, kissing her, causing CW to touch his penis, and rubbing his penis against her vagina while wearing a condom. The abuse took place from when CW was aged seven to eleven years old, ending when her mother moved to California in September 2012. After this disclosure, CW filed a police report.

After a jury trial, the Circuit Court convicted Long of two counts of Sexual Assault in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-730(1) (b) (2014)2 (Counts 1 and 8), and five counts of Sexual Assault in the Third Degree in violation of HRS § 707-732(1)(b) (2014)3 (Counts 2, 3, 4, 5, and 6). Long was sentenced to life terms of imprisonment with mandatory minimums of six years and eight months in Counts 1 and 8, and ten years in Counts 2, 3, 4, 5, and 6 with mandatory minimums of one year and eight months in Counts 4, 5, and 6. All terms were to run concurrently to each other but consecutive to any other terms of imprisonment.


On appeal, Long contends the Circuit Court: (1) erred by admitting irrelevant prior bad acts; (2) erred by failing to voir dire the jury after prejudicial news coverage was brought to its attention during trial; (3) erred by empaneling a new jury to make factual determinations necessary for sentencing enhancements; (4) abused its discretion by imposing extended life sentences consecutive to a life sentence Long was serving in another conviction; and (5) violated Long's constitutional right against cruel and unusual punishment because his extended life sentences shock the conscience.4

1. The Circuit Court Did Not Abuse Its Discretion By Permitting Testimony of the Existence of a Firearm in Long's Home as a Prior Bad Act.

Long asserts the Circuit Court erred by admitting irrelevant prior bad act evidence of his gun ownership that was more prejudicial than probative; explaining,

[t]he only purpose of the possession of the gun would have been to ensure that [Long] appeared to be a danger to the public, or a gang member, or allow the State to bolster the testimony of the complaining witness by alluding that she may have feared [Long] by the possession of a gun to explain away the delay in reporting the alleged crimes in this matter.

Prior bad act evidence under Hawaii Rules of Evidence (HRE) Rule 404(b)5 is admissible when not used to show action in conformity therewith, and it is: (1) relevant and (2) more probative than prejudicial. See State v. Behrendt, 124 Hawai‘i 90, 103, 237 P.3d 1156, 1169 (2010). " ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." HRE Rule 401.

HRE Rule 404(a),6 generally prohibits evidence of a person's character or a trait of a person's character for the purpose of proving action in conformity therewith on a particular occasion. However, HRE Rule 404(b) may permit the use of evidence of other crimes, wrongs, or acts "where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident." The list of permissible purposes in Rule 404(b) "is not intended to be exhaustive ‘for the range of relevancy outside the ban is almost infinite.’ " State v. Clark, 83 Hawai‘i 289, 300, 926 P.2d 194, 205 (1996) (quoting E.W. Cleary, McCormick on Evidence § 190, at 448 (Cleary ed. 1972). Instead, 404(b) defines one impermissible purpose. Id. at 301, 926 P.2d at 206 (citations omitted). HRE Rule 403, provides for the exclusion of relevant evidence where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

On appeal, we review the trial court's relevance determination under the right/wrong standard. State v. Richie, 88 Hawai‘i 19, 36-37, 960 P.2d 1227, 1244-45 (1998). The State offered Long's gun possession to show why CW did not disclose the sexual assaults earlier. This evidence is probative of CW's reasons for denying abuse by Long when directly questioned on the topic by her Father and Stepmother. CW testified that she was afraid of Long and was afraid to tell her parents about the abuse. She further testified that she was afraid that Long would hurt her parents with the handgun. This evidence does not pertain to Long's character and was not used to show action in conformity therewith in the charged offenses. Thus, the Circuit Court did not err in determining that CW's testimony that Long possessed a handgun was relevant.

The HRE Rule 403 balancing is reviewed for an abuse of discretion. Richie, 88 Hawai‘i at 37, 960 P.2d at 1245. It is not clear that mere ownership or possession of a firearm is a "bad act" for 404(b) purposes. Williams v. State, 690 N.E.2d 162, 174 (Ind. 1997). CW's testimony was merely that Long possessed a handgun in his home. Furthermore, the court instructed the jury that the testimony regarding the gun "may only be considered for the purpose of showing the state of mind of [CW]." Thus, any risk of prejudice was reduced by the court's instruction. See, e. g., State v. Brooks, 123 Hawai‘i 456, 471, 235 P.3d 1168, 1183 (App. 2010) (the jury is presumed to follow the court's instructions). Therefore, the Circuit Court did not abuse its discretion by admitting CW's testimony regarding Long's gun ownership.

2. The Circuit Court Did Not Err By Denying Long's Request to Individually Voir Dire the Jurors Regarding Exposure to a Potentially Prejudicial Newscast.

Long argues the Circuit Court's refusal to voir dire the jury after prejudicial news coverage was brought to its attention during trial was error.7 Long claims this refusal denied his right to a fair trial.

A fair trial by an impartial jury is a basic protection provided by the United States and Hawai‘i State Constitutions to the accused in a criminal case. State v. Keliiholokai, 58 Haw. 356, 356, 569 P.2d 891, 893 (1977). Inherent in this protection is the defendant's right to receive a fair trial by an impartial jury, free from improper prejudice resulting from "outside influences." Id. Where the existence of an outside influence is brought to the attention of the trial court, the court must ascertain the extent of the influence and then, in its sound discretion, take appropriate measures to assure a fair trial. Id. at 358, 569 P.2d at 894.

This inquiry is a two-step process. Before questioning the jury, the court must first determine whether the contents of the news account were of a nature that "rises to the level of being substantially prejudicial." Keliiholokai, 58 Haw. at 359, 569 P.2d at 895 ; see also State v. Okumura, 78 Hawai‘i 383, 394, 894 P.2d 80, 91 (1995), abrogated on other grounds, State v. Cabagbag, 127 Hawai‘i 302, 277 P.3d 1027 (2012), (newscast concerning appellants' "alleged involvement in a burglary other than those charged" and juror's description of what she had seen of the broadcast in front of other jurors). "If it does not rise to such a level, the trial court is under no duty to interrogate the jury." State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991) (dictionary brought into deliberation room by juror) (quoting Keliiholokai, 58 Haw. at 359, 569 P.2d at 895 (portion of newspaper article describing defendant's prior convictions was read into the record); see also United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974) ("We do not hold that every newspaper article appearing during trial requires such protective measures. Unless there is substantial reason to fear prejudice, the trial judge may decline to question the jurors.") "[W]hether it does rise to the level of substantial prejudice ... is ordinarily a question ‘committed to the trial court's discretion.’ " Williamson, 72 Haw. at 102, 807 P.2d at 596 (quoting Keliiholokai, 58 Haw. at 359, 569 P.2d at 895 ). Where the trial court finds the outside influence could substantially prejudice the jury, it must examine "potentially tainted jurors, outside the presence of the other jurors, to determine the influence, if any, of the extraneous matters." Id.

While Long argues on appeal that the "pre-trial publicity [was] extensive and [ ] likely prejudicial" and required examination of the jury, the record does not support this assertion. Long does not point to any indication in the record that the publicity occurred "pre-trial. ’’8 The content of this report was described by Long's attorney as a segment of [Long] on the TV regarding his prior cases."...

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