State v. Moriwaki, 13697

• Citation: 791 P.2d 392,71 Haw. 347
• Decision Date: 01 May 1990
• Docket Number: No. 13697,13697
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Kyle MORIWAKI, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 392

791 P.2d 392

71 Haw. 347

STATE of Hawaii, Plaintiff-Appellee, v. Kyle MORIWAKI, Defendant-Appellant.

No. 13697.

Supreme Court of Hawai'i.

May 1, 1990.

Syllabus by the Court

1. When a defendant in a homicide case offers evidence that the victim was the first aggressor, HRE Rule 404(a)(2) authorizes the trial court to allow the prosecutor to introduce evidence of the victim's peaceful nature in rebuttal.

2. The sanction for violation of the exclusionary rule, HRE Rule 615, is left to the sound discretion of the trial court. Generally, the rule does not require a new trial for noncompliance with an exclusion order, except where the court's decision to allow the allegedly tainted testimony was an abuse of discretion or resulted in prejudice to the defendant.

3. Trial court's decision to allow the testimony of a witness, who had been present in the courtroom for part of the trial but who had not been a scheduled witness at that time, was not an abuse of discretion nor was it prejudicial to defendant because even assuming a violation of the exclusion order occurred under the circumstances, it was unlikely that the witness' presence in the courtroom allowed him to better "shape" or fabricate his testimony, if that was his intent.

4. In exercising its broad discretion as to sanctions for violations of HRPP Rule 16, the trial court should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.

5. The prosecutor had a duty to disclose knowledge of a recent incident of violence by the victim as the incident would tend to negate the evidence offered by the prosecution that the victim was a non-violent person, and therefore was material to defendant's claim of self-defense.

6. Where violation of duty of disclosure substantially prejudices a defendant's case and is not discovered until after completion of trial and after entry of judgment against the defendant, the only remedy available to cure the prejudice to defendant is the granting of a new trial.

7. Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

8. Evidence of the incident of violence by the victim was material because there is at least a reasonable probability that had this evidence been offered, the outcome of the case would have been different.

9. Where a party makes a timely request, the trial court must order that closing argument be recorded.

Judd R. Scott, Deputy Public Defender, Honolulu, for defendant-appellant.

Vickie L. Silberstein, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., PADGETT, HAYASHI and WAKATSUKI, JJ., and NAKAMURA, Retired Justice in place of MOON, J., recused.

HAYASHI, Justice.

Defendant-Appellant Kyle Moriwaki (Defendant) was initially indicted for second degree murder in violation of Hawaii Revised Statutes (HRS) § 707-701.5 for the stabbing death of Jonathan Meyer (Meyer). A jury subsequently found Defendant guilty of the lesser offense of manslaughter due to extreme mental or emotional disturbance. See HRS § 707-702. The trial court thereafter sentenced Defendant to ten years of imprisonment and ordered him to pay restitution in the amount of $2,012.00 to Meyer's family and $3,834.82 to the Department of Human Services. We reverse.

I. FACTUAL BACKGROUND

On the evening of December 30, 1987, Meyer went to visit his girlfriend, Saundra Moriwaki (Saundra), at the apartment she shared with Defendant, her brother. Saundra and Defendant were the only two eyewitnesses. Saundra testified that on the night in question Defendant had come to her room to discuss her plans to move out to live with Meyer. Saundra testified that Defendant was drunk and not making any sense, so she told him to go away.

Meyer, who had also been drinking but who did not appear intoxicated, arrived approximately twenty minutes later. Shortly after Meyer's arrival, Defendant reacted hostilely to something Meyer said. Feeling this tension was related to her earlier conversation with Defendant and not wanting anything to happen, Saundra suggested to Meyer that they go for a ride. As they were leaving, however, Defendant began taunting Meyer. Saundra's testimony as to the events that followed was less than clear.

Meyer responded angrily and pushed Defendant onto the couch. Following more pushing by both men, Defendant ended up on the kitchen floor. As Defendant got up he grabbed a knife and held it down by his thigh. Saundra testified that Meyer then went towards Defendant, who appeared surprised, and that they began scuffling. She stated that Meyer had his right hand on Defendant's neck and that she saw Defendant swing, but did not see the knife penetrate Meyer's body. She further testified that they were struggling and fell back on the sofa. At that point, Meyer had his right knee and weight on the Defendant's stomach, his right hand on Defendant's neck and his left hand holding Defendant's arm which held the knife. ¹

Saundra then took the knife away, and upon finding that Meyer was bleeding, she went to get help. When she returned, Meyer was still on top of Defendant and appeared to be choking him. Saundra got Meyer to let go of him. Defendant then attempted to help Meyer, and told him that he was sorry and that he was going to be all right. Saundra testified that there had been no prior animosity between Defendant and Meyer.

Defendant testified that he only remembered Meyer knocking him down on the kitchen floor. Seeing that Meyer was very angry, Defendant grabbed the knife to protect himself, thinking that Meyer would then back off. He testified that the next thing he knew Meyer was on top of him holding his neck and his arm holding the knife. Believing that Meyer was going to choke him to death, Defendant stabbed him slightly to try to get him to release his hold. Defendant testified that when Meyer began choking him harder and looked like he wanted to kill him, he stabbed him harder. Meyer then let go.

The medical examiner testified that Meyer had been stabbed twice, once fatally, and had died as a result of internal bleeding.

On November 1, 1988, a jury found Defendant guilty of manslaughter on the basis of extreme mental and emotional disturbance.

On November 14, 1988, Defendant filed a Motion to Set Aside the Verdict and for Judgment of Acquittal, or in the Alternative for a New Trial, asserting errors in the jury instructions and an insufficiency of the evidence. At the hearing on the motion, defense counsel also raised as grounds for a new trial newly discovered evidence and prosecutorial misconduct, and offered testimony by Saundra in support. The court denied the motion, and proceeded to sentence Defendant as stated above.

This timely appeal followed.

II. REBUTTAL EVIDENCE OF VICTIM'S PEACEFUL CHARACTER

The prosecution presented two witnesses in rebuttal to testify to the character of Meyer: Wendy Meyer, Meyer's mother, and Larry Jones (Jones), father of Meyer's ex-girlfriend. Jones was not initially scheduled to be a witness at trial, but approached the prosecutor and indicated his desire to testify after having observed part of the trial. Defense counsel objected to these witnesses on the grounds that 1) Meyer's character had not been attacked; 2) there was no issue as to who was the first aggressor based on the evidence adduced at trial; and 3) even if such testimony was relevant, Jones had been in the courtroom during part of the trial, and therefore his testimony would violate the exclusionary rule, invoked by both parties at the outset of the trial. The court overruled the objections. Thereafter both Jones and Wendy Meyer testified to Meyer's height as about 6'2"' and to the effect that when Meyer drank he became happy and not belligerent.

Hawaii Rules of Evidence (HRE) Rule 404(a)(2) authorizes the admission of evidence of the peaceful character of a homicide victim to rebut evidence that the victim was the first aggressor:

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

....

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.]

HRE Rule 404(a)(2) (emphasis added). Pursuant to HRE Rule 404(a)(2), therefore, when Defendant, in support of his defense of self-defense, offered evidence that Meyer was the first aggressor, the court clearly was authorized to allow the prosecution to introduce evidence of the victim's peaceful nature in rebuttal. The record in fact reflects that the court based its ruling on HRE Rule 404(a)(2) in admitting the evidence. Moreover, given that the lower court was presented with only two eyewitnesses, Defendant and his sister, whose accounts were often unclear, we do not find that the trial court erred in admitting the rebuttal testimony.

We also find no abuse of discretion with regard to the admission of Jones' testimony. HRE Rule 615 ² provides for the exclusion of witnesses from the courtroom by court order "to prevent him from listening to testimony of other witnesses and then 'shaping' or fabricating his testimony accordingly." State v. Leong, 51 Haw. 581, 583, 465 P.2d 560, 562 (1970).

It is unclear whether Jones violated the court's exclusion order. He was not a scheduled witness at the time he observed part of the trial. We need not decide this issue, however, because even if his testimony was...