State v. Scott

• Decision Date: 16 October 2013
• Docket Number: No. SCWC–10–0000037.,SCWC–10–0000037.
• Citation: 131 Hawai'i 333,319 P.3d 252
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Kevin Alexander SCOTT, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

131 Hawai'i 333

319 P.3d 252

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

v.Kevin Alexander SCOTT, Petitioner/Defendant–Appellant.

No. SCWC–10–0000037.

Supreme Court of Hawai‘i.

Oct. 16, 2013.

Kevin O'Grady, Honolulu, for petitioner.

Linda L. Walton, Kealakekua, for respondent.

RECKTENWALD, C.J., NAKAYAMA, McKENNA, and POLLACK, JJ., with ACOBA, J., concurring separately.

Opinion of the Court by POLLACK, J.

Petitioner/Defendant–Appellant Kevin Alexander Scott (Scott) seeks review of the January 15, 2013 Judgment on Appeal of the Intermediate Court of Appeals (ICA), filed pursuant to its December 17, 2012 Summary Disposition Order, affirming the Judgment of Conviction and Sentence (Judgment) entered by the Circuit Court of the Third Circuit (circuit court) on August 30, 2010.

Scott's appeal arises from the circuit court's denial of his request for the written transcripts or the DVD video recordings of his codefendant's trial. For the reasons set forth herein, we hold that Scott demonstrated that the requested transcripts or DVD video recordings were necessary for an effective defense, where the charges against Scott and his codefendant arose from the same incident and involved identical facts, and the same key witness testified against both Scott and his codefendant at their respective trials. Thus, the circuit court erred by denying Scott's request. Accordingly, we vacate the ICA's Judgment on Appeal and the circuit court's Judgment, and remand for a new trial consistent with this opinion.

I.

A.

The charges against Scott arose out of an incident that occurred on October 18, 2009 and involved Scott, his brother Jefferson Scott (Jefferson), and the complainants Leif Martin (Leif) and Kerry Martin (Kerry). Scott and Jefferson were indicted separately by the State of Hawai‘i (State) upon multiple charges related to the incident.

Jefferson was indicted first, upon charges of assault in the second degree,¹ assault in the third degree,² and terroristic threatening in the second degree.³ State v. Scott, No. 30499, 125 Hawai‘i 30, 2011 WL 1878851 (Haw.App. May 12, 2011) (SDO). Following a jury trial, on April 14, 2010, Jefferson was convicted of two counts of assault in the third degree and one count of terroristic threatening in the second degree.⁴ Id. at *1.

On January 25, 2010, Scott was indicted by a grand jury upon one count of assault in the second degree for intentionally or knowingly causing substantial bodily injury to Leif⁵ ; two counts of terroristic threatening in the first degree, for threatening to cause bodily injury to Leif and Kerry with the use of a dangerous instrument; and one count of terroristic threatening in the first degree by common scheme.⁶ A jury trial was scheduled for June 29, 2010.⁷

On February 17, 2010, the State filed a "Notice of Liability for Conduct of Another" (Notice of Liability), stating that it intended to use evidence that Scott "aided his brother, Jefferson Scott, in committing the crimes charged in this case," pursuant to HRS §§ 702–221(1) and (2)(c)⁸ , 702–222(1)(b)⁹ , and 702–223¹⁰ . The Notice provided that the State intended to introduce evidence that Jefferson "assisted" Scott after Scott "got into a dispute with" Leif and Kerry:

Specifically, the State will introduce evidence that JEFFERSON SCOTT assisted the defendant after the defendant got into a dispute with the defendant's neighbors, LEIF MARTIN and KERRY MARTIN. During what started as a verbal argument between defendant and the Martins, JEFFERSON JOSEPH SCOTT became angry and decided to assist his brother. Defendant's brother, JEFFERSON SCOTT, then punched LEIF MARTIN, who fell to the ground unconscious....

[T]he defendant's brother then kicked LEIF MARTIN in the head while he was on the ground, unconscious, as the defendant, KEVIN SCOTT, continued to threaten.

(Emphases added).

On June 15, 2010, Scott filed a Motion to Continue Trial with the circuit court, pursuant to Rule 12 of the Hawai‘i Rules of Penal Procedure (HRPP) and Rule 7 of the Hawai‘i Circuit Court Rules.¹¹ The motion provided that defense counsel needed additional time to "obtain copies of the recent trial of the co-defendant brother in order to adequately prepare a defense in the instant case." In defense counsel's declaration in support of the motion, counsel explained that the transcripts had not been previously ordered because Scott had authorized him to enter into plea negotiations with the State. Defense counsel believed "the case was headed in the direction of a plea agreement" based on the State's plea offer in April 2010. Defense counsel therefore did not order Jefferson's trial transcripts in an effort to avoid incurring unnecessary expenses. However, "the plea agreement reached by the parties ... fell out of orbit based on ... newly discovered information [.]" Counsel additionally stated that he had mistakenly assumed another trial scheduled at approximately the same time as Scott's trial was "first up and was certain to go[.]" Finally, defense counsel represented to the court that he had explained the need for the transcripts to Scott and Scott had agreed "to waive his Rule 48 and constitutional speedy trial rights" in order for the court to consider continuing the trial.

At about the same time that the Motion to Continue Trial was filed, defense counsel also submitted a "Request Form for Non Appeal Cases" (Request Form I) to the administrative judge for the Third Circuit (administrative judge).¹² Defense counsel requested the written transcripts of Jefferson's jury trial proceedings, a pretrial motion hearing, and sentencing hearing.

On June 21, 2010, the State filed a "Supplement to Response to Motion to Continue Trial"¹³ (Supplemental Response) with the circuit court, contending that Scott had "made no showing that he requested the transcripts of his brother's trial, or that they are necessary for his defense." The State also argued that Scott had access to the transcripts of the grand jury proceedings and a protective order hearing at which Scott and Jefferson testified. The State further asserted that Jefferson's "entire trial was recorded on DVD, which will require less than a day for the defendant to copy" and which fulfilled the "same function as a transcript."

Apparently in response to the Supplemental Response, defense counsel submitted a second "Request Form for Non Appeal Cases" (Request Form II) to the administrative judge. Defense counsel requested the video recordings of the same proceedings related to Jefferson's trial that he had requested written transcripts for in Request Form I.

A hearing on the Motion to Continue Trial was held on June 23, 2010. Following the hearing, the circuit court denied the motion.¹⁴ The record does not include a transcript of the hearing or an order from the circuit court regarding its disposition of the motion. The June 23, 2010 court minutes indicate that the circuit court denied Scott's Motion to Continue Trial because "the information being sought could have been more specific and not be a vague allegation of what might be out there." The court also reasoned that it had summoned a jury and the parties had indicated they were ready to proceed with trial. Finally, the court stated that "if there was a need for expedited transcripts, motions could have been filed," and Scott had not demonstrated prejudice.

On June 24, 2010, consistent with the circuit court's decision to deny Scott's Motion to Continue Trial, the administrative judge denied Request Form I and Request Form II. Both forms were stamped "Disapproved and So Ordered." On Request Form I, the judge initialed the following handwritten statement next to his signature: "Counsel is appointed in another case. Defendant does NOT HAVE a constitutional right to a ‘free’ audio in this case." (Underline emphasis added). Similarly on Request Form II, the judge initialed the following handwritten statement: "Counsel is appointed in another case. Defendant does not have a constitutional right to a ‘free’ video in this case." (Emphasis added). Both Request Forms I and II were filed on June 29, 2010.

B.

Scott's jury trial commenced on June 29, 2010 and adduced the following evidence.

On October 18, 2009, Scott went to visit Jefferson at the latter's home. Jefferson's home was located in a cul-de-sac, next door to Kerry's home. Scott parked his van on the street.

That night, Leif was visiting Kerry and their children at Kerry's home. Leif and Kerry were married but separated. Leif was employed as a federal security officer for the Transportation Security Administration at the airport. When Leif arrived at Kerry's home, he double-parked his car next to Scott's van, so that his car was closer than three feet from the van. There was apparently a history of problems between the Martins and the Scotts regarding the van being parked in the cul-de-sac.

Later that night, Leif and Kerry came outside to the driveway area of Kerry's home and began "venting" to one another about the van being parked in the cul-de-sac. According to Scott, he and Jefferson were sitting on the porch when he heard Leif yelling about the van being parked, prompting him to walk out to where Leif and Kerry were standing. Kerry and Leif testified that as Scott approached them, Scott stated, "If you wanted me to move it, why didn't you just say so." Kerry responded that she was "really over this drama" and Leif commented that Scott had previously dented Kerry's father's car. Scott approached Kerry and responded, "I talked to that old man about that." While Kerry took a step back, Leif took a step towards Scott. Scott and Leif then stood "face-to-face," arguing about the van being parked in the cul-de-sac.

While Scott and Leif were arguing, Jefferson came outside and asked what was happening. Leif and Jefferson had an exchange regarding the van. Scott testified that Leif walked towards Jefferson aggressively "with his fists clenched," and when Leif got to within arm's reach of Jefferson, Jefferson hit...