State v. Veikoso
| Decision Date | 12 September 2011 |
| Docket Number | No. SCWC–30138.,SCWC–30138. |
| Citation | 270 P.3d 997,126 Hawai'i 267 |
| Parties | STATE of Hawai‘i, Petitioner/Plaintiff–Appellee v. John C. VEIKOSO, Respondent/Defendant–Appellant. |
| Court | Hawaii Supreme Court |
James M. Anderson, Deputy Prosecuting Attorney, City & County of Honolulu, for petitioner/plaintiff-appellee.
Randall K. Hironaka (Miyoshi & Hironaka), (Joyce Matsumori–Hoshijoon the briefs), for respondent/defendant-appellant.
We hold that, although the Intermediate Court of Appeals (ICA) held that the circuit court of the first circuit (the court)1 erred in admitting the testimony of Dr. Wayne Lee (Dr. Lee), the physician who examined Complaining Witness (CW) # 2 regarding alleged threats made by Respondent/ Defendant–Appellant John C. Veikoso (Respondent) against CW # 2, the ICA committed grave error in concluding that the error was not harmless. See State v. Veikoso, No. 30138, 2010 WL 5037006, at *16–17 (App. Dec. 9, 2010) (mem.). In our view, the error in admitting such testimony was harmless beyond a reasonable doubt. Accordingly, we reverse the February 1, 2011 judgment of the ICA, filed pursuant to its December 9, 2010 Memorandum Opinion (memo op.),2 insofar as it vacated the court's September 28, 2009 Judgment convicting Respondent on Counts 4–8 (involving CW # 2) and remanded those counts for a new trial.3
On February 11, 2009, Respondent was charged by Petitioner/Plaintiff–Appellee State of Hawai‘i (Petitioner) in an eight-count indictment with: (1) Sexual Assault in the First Degree, Hawai‘i Revised Statutes (HRS) § 707–730(1)(a) (Supp.2009) ()4 ; (2) Sexual Assault in the Third Degree, HRS § 707–732(1)(f) (Supp.2009)5 (); and (3) Kidnapping, HRS § 707–720(1)(d) and/or (e) (Supp. 2009) (Count 3 involving CW # 1 and Count 8 (with intent to inflict bodily injury or to subject to sexual offense or to terrorize) involving CW # 2).6 Counts 1 through 3 arose from events taking place on January 18, 2009, involving CW # 1, and Counts 4 through 8 from events taking place on February 7, 2009 involving CW # 2. According to Petitioner, on separate occasions, Respondent solicited CW # 1 and CW # 2 respectively, who were working as prostitutes, from the same location, "drove both women over the Pali Highway—while threatening, terrifying, and beating them—to Maunawili Elementary School, where he sexually assaulted them in a similar manner at the same bench, after which he abruptly changed his demeanor to reflect a caring and [sic] concern for his victims."
The following essential matters, some verbatim, are from the record, the ICA opinion, and the submissions of the parties.
The charges in the case were joined pursuant to Hawai‘i Rules of Penal Procedure ( HRPP) Rule 8 (2009), which permits the joinder of two or more offenses, with each offense stated in a separate count, when the offenses "(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." As discussed infra, Respondent filed a Motion for Severance of the Charges (Motion for Severance) arguing that he would be prejudiced by the joinder. Petitioner contended, inter alia, that Respondent would not be prejudiced by the joinder because the evidence supporting each offense would likely be admissible against Respondent, even if tried separately, to show intent, common scheme, plan, design or modus operandi. Respondent's motion was denied by the court and the separate offenses involving CW # 1 and CW # 2 were joined in the same trial.
At trial, defense counsel contended in his opening argument that CW # 2 consented to having sex with Respondent and "voluntarily went in[to Respondent's] car, with the purpose of making money." He suggested that CW # 2 had fabricated the complaint against Respondent because "at some point ... there was a dispute about the money being paid or not paid"; "there was an agreement for $120[,]" but the $120 "was found folded in [Respondent's] pocket."
The incident pertaining to CW # 1 is not at issue on certiorari. See supra note 7. Petitioner contends that the testimony of both complaining witnesses may be considered as part of the evidence to be weighed in CW # 2's case. Inasmuch as we conclude, for the reasons stated herein, that the evidence regarding CW # 1 cannot be considered with the evidence regarding CW # 2, CW # 1's testimony is not included herein.
CW # 2 testified that in the early morning hours of February 7, 2009, she was "down at Nuuanu [Avenue], behind [the stores] Pali Longs [and] Safeway," when Respondent drove up in a Ford Mustang and asked her if she wanted to "cruise with him." CW # 2 agreed and voluntarily entered the vehicle. As Respondent drove over the Pali Highway, Respondent But CW # 2 said, As Respondent turned into a dark neighborhood on Old Pali Road, he reiterated that he could take her back if she was scared. She finally said, Then, Respondent responded, CW # 2 reached for the phone "because [she] was scared"; Respondent grabbed it from her, struck her face and the back of her head several times, grabbed her hair, and pulled her down to the center console. CW # 2 saw blood dripping from her face onto the console. She also indicated that when hit on the back of the head, she "blacked out[,]" but eventually regained consciousness. Respondent repeatedly told CW # 2, "Shut the fuck up [,] ... you're going to do what I tell you to do[,]" while grabbing her by the hair and pulling her down. CW # 2 thought she was going to die.
When CW # 2 attempted to escape, Respondent told her, "Oh, try and get out [,]" but when CW # 2 grabbed the door handle, he "grabbed [her] hair again" and said, "What the fuck are you doing?" When she tried to pull away from Respondent, he began to hit her on the back of the head with his fist or elbow. When she began screaming and pleading for Respondent to let her go, Respondent threatened, "Shut the fuck up or I'm going to shoot you. " (Emphasis added.) CW # 2 finally yanked her hair free from Respondent's hand and he said, After that, CW # 2 remained quiet so that Respondent would not hurt her anymore.
As they headed down the windward side of the Pali Highway, Respondent told CW # 2 that he would let her go at a nearby bus stop and give her money to catch the bus home. But as they passed the bus stop, Respondent continued to drive and eventually turned into the Maunawili area. At some point, CW # 2 attempted to turn off Respondent's ignition and Respondent said, Respondent remarked, "The last girl that was with me got out, but she broke her collarbone."7
Respondent continued to drive through the dark stretch of Maunawili and eventually turned into Maunawili Elementary School. As he pulled in, he said, "[Y]ou can tell your friends this is where you got fucked." He pulled into a dark area near a dumpster and said, "[Y]ou're going to do whatever I want you to do and then you can go; You'll be fine if you do it." Respondent then pulled CW # 2 out of the vehicle by her hair and dragged her to a bench.
At the bench, Respondent undressed, undressed CW # 2, put his penis "[i]nto her mouth" and forced CW # 2 to perform oral sex on him. She did not scream because she "was scared [Respondent] was either going to hurt [her] or kill [her]." Thereafter, Respondent laid down and instructed CW # 2 "to get on top of him." She again complied, believing that "he was going to hit [her] again or kill [her]." Respondent "put his penis into [CW # 2's] vagina" and "made [her] suck his penis one more time." Then, he made CW # 2 lay down on the bench, kissed her, bit her lip, and spat inside her mouth as he placed "his hand ... on [her] neck area" and "press[ed] down on ... [her] throat" making it "hard to breathe." Respondent also "touched [CW # 2's] breast, and then [ ] put his mouth on her breast." He told CW # 2 that he was going to ejaculate "in [her] mouth" and she was "going to swallow it." CW # 2 "got on top of him one more time"; Respondent said, "Oh, get ready." CW # 2 "got off" of Respondent and Respondent "grabbed her neck[,]" "stuck his penis into her mouth and ejaculated"; he said, "Oh, you better swallow it."
After the incident, Respondent said, "I'll give you your cell phone back" if you "just come with me back to my car." CW # 2 told Respondent that she would meet him at the side of his car so he could give it to her. She started walking quickly toward the parking lot, but removed her shoes, and began running toward the highway. She attempted to flag down several cars until finally, Chad Ogawa (Ogawa) stopped. She ran up to his car and said, "Sir, Sir, please help me, please help me[.]" As they were driving, CW # 2 saw that the Ford Mustang was still parked by the dumpster. Ogawa could not see the license plate number so he got out of the vehicle and walked towards the Ford Mustang. Ogawa returned to the vehicle with the license plate number and told CW # 2 to save it in his cell phone.
Ogawa then drove CW # 2 to a "7–Eleven" store to leave her with one of his classmates, who "was going to call the cops." After the police arrived, they took CW # 2 to a residence where she identified Respondent as...
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