State v. Pauline
| Decision Date | 26 December 2002 |
| Docket Number | No. 22961.,22961. |
| Citation | 100 Haw. 356,60 P.3d 306 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Frank PAULINE, Jr., Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Clifford B. Hunt, Honolulu, for defendant-appellant.
Charlene Y. Iboshi, First Deputy Prosecuting Attorney, and Lincoln S.T. Ashida, Deputy Prosecuting Attorney, for plaintiff-appellee.
The defendant-appellant Frank Pauline, Jr. appeals from the third circuit court's judgment of conviction1 of murder in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-701.5 (1993), kidnapping, in violation of HRS § 707-720(1)(c) (1993), and sexual assault in the first degree, in violation of HRS § 707-730(1)(a) (1993), and the subsequent sentence. On appeal, Pauline contends that the trial court erred in: (1) denying Pauline's motion to transfer the case to another circuit; (2) failing to review the videotape of Pauline's expert witness prior to ruling on its admissibility; (3) excluding the videotape of Pauline's expert witness as evidence; (4) allowing the jury's trunk hood "experiment" during the jury view and, thereby, violating Pauline's rights of due process, confrontation, and effective assistance of counsel; (5) excluding Pauline from the jury views of the car and, thereby, violating Pauline's right to be present at all stages of the proceeding; (6) failing to engage in an on-the-record colloquy with Pauline concerning included offense instructions; and (7) denying Pauline's motion for a new trial.
For the reasons set forth below, we hold that: (1) the trial court did not abuse its discretion in denying Pauline's motion to transfer; (2) the trial court did not abuse its discretion by failing to review the videotape of Pauline's expert witness prior to ruling on its admissibility; (3) the trial court did not err in excluding the videotape of Pauline's expert witness as evidence; (4) the jury's trunk hood "experiment" did not violate Pauline's rights to due process, confrontation, and effective assistance of counsel; (5) although the exclusion of Pauline from the jury views violated his right of presence, such error was harmless; (6) the failure of the trial court to engage in an on-the-record colloquy with Pauline concerning included offense instructions was not plain error affecting Pauline's substantial rights; and (7) the trial court did not abuse its discretion by denying Pauline's motion for a new trial. Accordingly, we affirm the trial court's judgment of conviction and sentence.
In December of 1991, Dana Ireland visited her sister in Puna on the island of Hawai`i. In the early afternoon of December 24, 1991, Ireland borrowed her sister's bicycle and rode over to her friend's house to invite him to a family Christmas dinner.
At about 4:45 p.m., in Waa Waa, Ida Smith, a local resident, heard crying near her house. When Smith investigated the noise, she found Ireland bloodied and her clothes torn off. Since Smith had no access to a phone, she had to hail cars from a nearby street to call for help.
At 5:36 p.m., Sergeant Robert F. Wagner of the Hawai`i County Police Department arrived at Kapoho Kai Drive and observed a black mountain bike on the right hand shoulder, with debris on the roadway. Wagner testified that he noticed "what appeared to be a gouge mark in the roadway area and what appeared to be acceleration marks on the roadway area leading up to where the bicycle was at." He also found a shoe, a clump of blond hair, and a wristwatch on the scene.
At 6:20 p.m., Officer Harold Pinnow of the Hawai`i County Police Department arrived at the Waa Waa scene. He observed several people attempting to comfort Ireland, who was "incoherent" and "seriously injured."
About half an hour later, Hawai`i County Fire Department paramedic, Johnson K. Kahili, arrived at the Waa Waa scene and observed that Ireland had numerous abrasions on her face, was suffering from shock, and "had a very large laceration . . . to the right side of her head . . . [through which her] skull was visible." Kahili further noted that he was unable to measure her blood pressure, which indicated that "her blood pressure was very low."
Later that night, the paramedics brought Ireland into the Hilo Medical Center emergency room, where she was treated by Dr. Nigel Palmer. Emergency room nurse, Reggie Agliam, observed that Ireland had "lost a lot of blood" and had sustained "a large laceration to her scalp" and "multiple contusions." Following emergency surgery, Ireland died. Dr. Charles Reinhold, pathologist at the medical center, performed an autopsy of Ireland and determined that she "died from massive blood loss due to multiple traumatic injuries throughout her body."
Dr. Kanthi Von Guenthner, forensic pathologist and first deputy medical examiner for the City and County of Honolulu, reviewed the medical records, including autopsy photographs, Dr. Reinhold's autopsy report, and X-ray reports. Dr. Von Guenthner observed that Ireland had numerous injuries, including damage to her brain and to the outer part of her head; extensive bleeding of her head; scrapes to her back, legs, and arms; bruising of her lips; tears with bleeding in her mouth; a bite mark to her left breast; fingernail scratch marks to her right breast; fingernail scratch marks on her left hip; extensive bruising to her neck, vagina, and scalp; and a broken pelvis and clavicle.
On June 18, 1994, Detective Steven Guillermo of the Hawai`i County Police Department met with Pauline at the Attorney General's Office on the island of O`ahu. After being advised of his constitutional rights, Pauline recounted what occurred on December 24, 1991. At trial, Guillermo testified as to Pauline's confession.
Pauline stated that Ian and Shawn Schweitzer stopped by his house during the early afternoon hours and asked him if he "wanted to go out and party." Pauline "understood that to mean if he wanted to go and join them to have some cocaine and probably go cruising." Pauline agreed and got into Ian's purple Volkswagen, with Ian driving and Shawn in the front passenger seat. They headed towards Pohoiki and made several stops to smoke cocaine.
As they neared Kapoho, they spotted Ireland standing on the roadside. Pauline explained, "At that time, Ian made some type of a comment to her, which is similar to the word ho or something like that." Ian immediately turned around and headed back in the direction towards Ireland. Pauline observed that the car was traveling at about 40 miles per hour when it struck Ireland. After driving over Ireland, Ian reversed over her again and then stopped the car. The Schweitzer brothers got out, picked Ireland up, and loaded her into the car's front trunk. They next drove towards the Waa Waa area on Beach Road. They stopped once along the way to smoke crack and Ian also checked the car's trunk.
Pauline told Guillermo that when they reached the Waa Waa area, they stopped the car on a dirt roadway. Pauline then helped Ian remove Ireland from the trunk compartment. They placed her on the ground and Ian had sexual intercourse with her. Pauline later stated that he helped Ian in pulling Ireland's pants down. Ian then invited Pauline to also have sex with her, but Pauline refused. Ian told Pauline that they must kill her, or else she would be able to identify them. In response, Pauline walked back to the car and retrieved a tire iron from the back portion of the car. "At that point, he approached the victim, looked at her, and swung the tire iron at her head." Pauline acknowledged that "he did hit her but . . . wasn't sure exactly where." Pauline later signed a formal statement, admitted in evidence, which stated that his intention in hitting Ireland with the tire iron was "to make sure [he] killed her." He also noted that Ian may have later struck Ireland. Pauline told Guillermo that when they left the scene, he did not realize that they had left Ireland behind until they arrived at the Schweitzer's home and were washing the car.
Guillermo testified that following the confession, the Hawai`i County Police escorted Pauline to the island of Hawai`i to conduct a "reconstruction" of Pauline's statements. At the Schweitzer residence, Pauline pointed out a Volkswagen that was now painted yellow and had no fenders, and identified this car as the vehicle involved in the incident. The car was later shown to the jury and the jury was instructed to treat the car like "any other evidence."
At trial, Pauline disavowed his confession and testified that he had lied to the police in order to get out of prison, where he faced death threats.
On July 30, 1997, Pauline was indicted for murder in the second degree, kidnapping, and sexual assault in the first degree. On July 31, 1997, Pauline was arraigned and entered pleas of not guilty.
On January 21, 1999, Pauline filed a motion to transfer the case, "on grounds that there [was] so great a prejudice against the defendant in the Third Circuit that he cannot obtain a fair and impartial trial in the Third Circuit." On February 16, 1999, Pauline filed a memorandum in support of his motion to transfer the case, attaching over 875 pages of newspaper articles concerning either Pauline or the murder of Ireland. In denying the motion on February 18, 1999, the trial court explained that it was capable of ensuring a fair trial through precautionary actions, such as jury questionnaires, extensive voir dire, cautionary instructions, and appropriate jury instructions.
At trial, Pauline sought to introduce not only the testimony of an accident reconstruction engineer, James Campbell, but also Campbell's report and videotape of a...
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