State v. Suka, 12919
| Decision Date | 21 June 1989 |
| Docket Number | No. 12919,12919 |
| Citation | 777 P.2d 240,70 Haw. 472 |
| Parties | , 82 A.L.R.4th 1029, 58 USLW 2083 STATE of Hawaii, Plaintiff-Appellee, v. Keila SUKA, Jr., Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Where a victim-witness counselor's accompaniment and placing of her hands on complainant's shoulders during her testimony significantly bolster's complainant's credibility and the record does not establish that such accompaniment and shoulder-touching were necessary to allow complainant to go forward with her testimony, defendant's due process right to a fair trial is violated.
2. When defense counsel requests an instruction on the defense of consent to charges of first degree rape, sodomy and sexual abuse, and there is any evidence of consent, the trial court must instruct the jury on the defense of consent notwithstanding the giving of instructions requiring the jury to find forcible compulsion.
Peter England Roberts, Office of the Public Defender (Linda C. Ramirez on the brief) Deputy Public Defender, Honolulu, for defendant-appellant.
Alexa D.M. Fujise, Deputy Pros. Atty., Office of the Prosecutor, Honolulu, for plaintiff-appellee.
Before LUM, C.J., and NAKAMURA, PADGETT and WAKATSUKI, JJ.
Defendant-Appellant Keila Suka, Jr. (Defendant) appeals from his convictions of two counts (I & IV) of Rape in the First Degree, Hawaii Revised Statutes (HRS) § 707-730(1)(a) (1985), two counts (II & VI) of Kidnapping, HRS § 707-720(1)(d) (1985); three counts (III, VII & VIII) of Sexual Abuse in the First Degree, HRS § 707-736(1)(a) (1985); and one count (V) of Sodomy in the First Degree, HRS § 707-733(1)(a) (1985).
All of the alleged offenses arose out of incidents occurring on May 9, 1986 and May 16, 1986. The complainant to the above offenses testified that on both days the appellant committed the various sexual acts and restraints alleged in the above counts without her consent. Defendant testified that the complainant consented to his conduct.
Defendant contends that the presence of the representative of the Victim Witness Kokua Program, Jackie Phillips (Jackie), sitting next to the complainant and standing behind and placing her hands on complainant's shoulders during the complainant's testimony violated defendant's constitutional due process right to a fair and impartial trial. We agree.
Complainant took the stand on the first day of trial. Upon being asked by the prosecutor to describe how she met defendant, the complainant broke down and cried. After an initial recess, the prosecution was granted a recess till after lunch because the complainant was not ready to proceed. When the court reconvened after lunch, defendant's counsel approached the bench and noted that it appeared that a representative from the Victim Witness Kokua program, Jackie, was going to be sitting with the complainant during her testimony. Counsel objected to this procedure. The prosecutor noted that the complainant was visibly upset that morning and argued that Jackie's presence would enable the complainant to continue testifying. The prosecutor stated that the complainant requested Jackie's presence because it would "help her and she would appreciate it." The court ruled that it would allow Jackie to sit with the complainant during her testimony provided the prosecutor laid a foundation for her presence.
The following examination occurred before the jury:
BY MS. SILBERSTEIN:
Q Nani, when we broke off for lunch this morning, you were very upset. And do you remember talking to me about having someone sit with you for this afternoon's session?
A Yes.
Q And how do you feel? Would it help you to have someone sitting with you while you testify, such as the lady to your right?
A Yes.
Q How do you know the lady to your right?
A 'Cause she helped me when I needed somebody to talk to.
Q Okay. That's Jackie Phillips from the Victim Kokua department; is that right?
A Yes.
Q So you would like to have her with you?
A Yes.
Q If the Court tells you that you're not allowed to talk to her but she can only be there with you, will you be able to follow that rule?
A Yes.
Complainant then proceeded to testify to the incidents occurring on May 9, 1986. At one point, the trial court, apparently in response to the complainant's crying, called a recess. The following exchange then took place:
I object strenuously to--I think there's already a very strong sympathy factor here, and I think at this point it's going to unduly prejudice the case in this situation and I don't think there's any showing of need. Obviously, she can testify she'd like it that way, but at this point I don't think it's justified. And in any event I don't think it's justified under any circumstances because of the sympathy factor.
Q Nani, since we took the recess Jackie Phillips is now standing behind you instead of sitting on the chair. Is there a reason why she's moved up to that place for you?
A So she could comfort me.
Q Would it help you to have her touching you behind you?
A Yes.
Q You understand that she cannot talk to you at all; is that right?
A Yes.
The complainant then continued with her description of the events on May 9, 1986 and May 16, 1986. The prosecutor completed her direct examination and the court adjourned.
The next morning, defense counsel renewed his objection to Jackie's presence, stating that an adequate foundation had not been provided to show that her presence was necessary. Counsel complained that the prejudicial effect of her presence outweighed the demonstrated need for it. The court, however, ruled that no further foundation was necessary for the following reasons:
Throughout her testimony the Court has noted--and it's also displayed this morning--that the complaining witness has had her left hand against her facial area, and she's been testifying with her head and eyes down. Which leaves the Court with the definite impression that it's the defendant's presence which causes her action. It's nothing that the defendant is doing. But it leaves the Court with the firm impression that she is either embarrassed, scared, or both of the defendant.
Having the representative of Victim Kokua present in court is something which the jury knows and jury may weigh and consider in its consideration of the complaining witness' testimony. However, I believe having that person here is necessary for the proceedings to go forth and, more importantly, give the defendant his right to confront the complaining witness. And he has a right of confrontation under the Constitution.
Defense counsel then proceeded with his cross-examination.
We are not convinced that Jackie sitting with the complainant and standing behind her with her hands on her shoulders during the complainant's testimony did not unfairly bolster complainant's credibility. The jury might very well have concluded that Jackie being present supported complainant's story or re-assured complainant's veracity. The jury could very well have surmised that Jackie had extensive talks with the complainant, and/or knows of other information not presented to the jury that convinces Jackie that complainant is telling the truth. Thus, Jackie's presence with and laying her hand on the shoulder of complainant during her testimony could have had the effect of conveying to the jury Jackie's belief that complainant was telling the truth, thereby denying defendant the right to a fair and impartial trial. 1
The State argues and the trial court agreed that Jackie's presence was necessary for the trial to go forth. But the record does not support the conclusion that the complainant could not testify without Jackie being present next to her. The complainant was 15 years old and could generally be expected to testify more easily than...
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79 Hawai'i 293, State v. Suka, 16500
...of all the offenses at his first trial. However, after an appeal, the convictions were set aside on July 12, 1989. State v. Suka, 70 Haw. 472, 777 P.2d 240 (1989). The second trial ended in a mistrial on October 31, 1991, because the jury was unable to reach a At the second trial, the trial......
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