State v. Sua

• Decision Date: 30 August 1999
• Docket Number: No. 21480.,21480.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Alomalietoa SUA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

987 P.2d 976

92 Haw. 78

STATE of Hawai`i, Plaintiff-Appellee, v. Alomalietoa SUA, Defendant-Appellant.

No. 21480.

Intermediate Court of Appeals of Hawai`i.

August 30, 1999.

As Amended September 1, 1999.

As Amended September 8, 1999.

Certiorari Granted September 29, 1999.

R. Richard Ichihashi, on the briefs, Honolulu, for defendant-appellant.

Bryan K. Sano, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, Honolulu, for plaintiff-appellee.

BURNS, C.J, WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that receipt of a witness's grand jury testimony under the past recollection recorded exception to the rule against hearsay at the criminal trial of Defendant-Appellant Alomalietoa Sua (Defendant) violated the right of confrontation guaranteed him by the Hawai`i Constitution. We conclude the witness's grand jury testimony was not imbued with such indicia of reliability as would comport with the substance of the protections afforded under that guarantee. Under such circumstances, we determine that the resulting error was not harmless beyond a reasonable doubt and thus the instant case must be remanded for a new trial.

In light of the remand and possible retrial, we also decide that (1) a witness's pretrial identification of Defendant is admissible under Hawai`i Rules of Evidence (HRE) Rule 802.1(3) (1993), to the extent the witness is capable of testifying substantively about the events, allowing the trier of fact to meaningfully compare the version of the events described pretrial with that given at trial, (2) a witness's pretrial statements purportedly inconsistent with the witness's trial testimony are admissible provided all requirements under HRE Rule 802.1(1)(C) are satisfied, and (3) there was substantial evidence which would otherwise sustain the jury's verdict. Under our disposition of this appeal, we need not reach other issues raised by Defendant.

I.

Defendant was indicted¹ and charged on July 23, 1997 for robbery in the first degree, as follows:

On or about the 18th day of June, 1996, in the City and County of Honolulu, State of Hawai`i, [Defendant] ..., while in the course of committing a theft, and while armed with a dangerous instrument, did use force against Jonah Gooman [(Gooman)],... with the intent to overcome that person's physical resistance or physical power of resistance, thereby committing the offense of [r]obbery in the [f]irst [d]egree, in violation of [Hawai`i Revised Statutes (HRS) §] 708-840(1)(b)(i)[(1993)].²

On December 30, 1997, the jury returned a verdict of guilty as charged, and on March 9, 1998, Defendant was sentenced. He appeals from the judgment of conviction and sentence.

II.

The following factual summary is from the grand jury testimony³ of Gooman taken on July 23, 1997.

Gooman had been acquainted with Defendant for many years. Gooman's grandmother owned two rental units. Defendant's brother, Nelson Sua (Nelson), was a resident of one of the rental units, but had vacated the premises during the spring or summer of 1996.

Gooman was not involved in collecting deposits or refunding deposits for the rental units.⁴ However, approximately one week before June 18, 1996, Defendant approached Gooman and asked for the refund of a rent deposit claimed by Nelson.⁵ Gooman told Defendant that he "did not know anything about ... the money or anything [sic] to do with the rent."

On June 18, 1996, Gooman was driving a car belonging to his friend, Corey Kaowili (Kaowili). Kaowili was in the front passenger seat and Trent Pauahi (Pauahi) was in the rear seat. When they saw Defendant on the street, Gooman stopped the car because Kaowili wished to speak to Defendant. Defendant entered the rear of the vehicle and requested a ride home.

Defendant again asked Gooman for the deposit. Gooman reiterated that he knew nothing about the money. Eventually Gooman stopped the car, looked back, and saw Defendant "fiddling with a gun."

After demanding that Gooman give him the money, Defendant struck Gooman on the back of the head with the butt of the gun. Gooman related he was struck "[p]retty hard." As a result he felt dizzy and his head was bloodied.

Kaowili offered Defendant money so that he would "leave [Gooman] alone."⁶ At first Defendant rejected Kaowili's offer. However, Defendant eventually took the money, instructed Gooman to obtain the balance owed, and alighted from the car. According to Gooman, Kaowili gave Defendant one hundred and twenty dollars.

Gooman further testified that he did not give Defendant permission to possess a gun, to strike him with it, or to demand or take any money.

III.

During trial, the State called a total of five witnesses: Gooman; Kaowili; Gooman's mother, Marlene Gooman (Marlene); Pauahi; and Honolulu Police Department Lieutenant Derek Shimatsu⁷ (Shimatsu). On appeal, Defendant argues that the court erred in (1) permitting Gooman's grand jury testimony to be read to the jury, (2) allowing Shimatsu to testify about Gooman's pretrial identification of Defendant, (3) authorizing Shimatsu to testify about prior inconsistent statements of Kaowili and Pauahi, (4) failing to instruct the jury on the defense of ignorance or mistake of fact, (5) denying Defendant's motion for judgment of acquittal, and (6) upholding a guilty verdict unsupported by substantial evidence.

IV.

We first examine whether the court erred in allowing Gooman's grand jury testimony to be read to the jury.

A.

Gooman testified that at the time he appeared before the grand jury he recalled the events of the alleged robbery and was "as accurate as possible" in relating that testimony. However, at trial, Gooman asserted his memory was "not good enough to allow [him] to testify fully and accurately":

Q [PROSECUTOR].... I want to take you back to a few days or a week or so before June 18th, 1996, did [Defendant] approach you concerning getting some money?

A [GOOMAN]. No, I don't remember.

....

Q. Are you saying that these matters you recall[ed] at the [g]rand [j]ury but now you don't recall them?

A. Yes.

....

Q. Are you telling this jury that today, as you sit here today, your memory of these events is not good enough to allow you to testify fully and accurately?

A. Yes.

Q. But you were able to testify fully and accurately at the [g]rand [j]ury?

A. (Witness nodded affirmatively.) Yeah.

At this point, the State offered a transcript of Gooman's grand jury testimony into evidence. The offer was made pursuant to HRE Rule 802.1(4), which permits a statement of past recollection recorded to be received in evidence as an exception to the rule against hearsay.⁸ However, defense counsel objected on the ground that Defendant was "not afforded an opportunity at [the grand jury hearing] ... for cross-examination of that statement" and thus Defendant would be denied his "sixth amendment right." The State asserted, in response, that HRE Rule 802.1(4) did not require that the prior statement have been subjected to "full and fair cross-examination[,]" as did HRE Rule 804(b)(1) (1993), the hearsay exception for former testimony.⁹

The court initially ruled that admission of the grand jury testimony would result in a denial of Defendant's right to cross-examination. On the next day of trial, however, the court reversed itself. In accordance with HRE Rule 802.1(4), the court directed that the transcript be read to the jury but not made available to the jurors. The prosecutor then read Gooman's grand jury testimony, in its entirety, to the jury.¹⁰

B.

1.

Plainly, Gooman's grand jury testimony was, at trial, hearsay. HRE Rule 801 (1993) defines hearsay as follows:

(1) "Statement" is (A) an oral or written assertion, or (B) a nonverbal conduct of a person, if it is intended by the person as an assertion.

(2) "Declarant" is a person who makes a statement.

(3) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(Emphases added.) Gooman made an oral statement to the grand jury asserting that Defendant threatened him and struck him with a gun. This statement was transcribed into written form. Because at trial Gooman claimed that he did not remember his statement, the State offered the transcript into evidence to prove that the events described therein had indeed occurred. The grand jury testimony was not offered for any other purpose and thus, was hearsay.

2.

As an exception to the rule against hearsay, past recorded statements may be received in evidence to prove the truth of the matters asserted therein. See generally HRE Rules 801, 802, and 802.1. In order to qualify as past recollection recorded, the statement must satisfy certain requirements under HRE Rule 802.1(4):

The following statements previously made by witnesses who testify at the trial... are not excluded by the hearsay rule:

. . . .

(4) Past recollection recorded. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness'[s] memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

According to its commentary, HRE Rule 802.1(4) is "identical with" Federal Rules of Evidence (FRE) Rule 803(5). Thus, as with FRE Rule 803(5), under HRE Rule 802.1(4), "[a] record or memorandum is admissible as an exception to the hearsay rule if the proponent can show that the witness once had personal knowledge of the matter, ... that the record or memorandum was prepared or adopted by [the witness] when it was fresh in his [or her] memory, that it accurately reflected his [or her] knowledge, and that the witness currently has insufficient recollection to enable...