State v. West, No. 21844.

• Decision Date: 30 May 2001
• Docket Number: No. 21844.
• Citation: 24 P.3d 648,95 Haw. 452
• Parties: STATE of Hawai`i, Petitioner-Plaintiff-Appellee, v. Lloyd T. WEST, Respondent-Defendant-Appellant.
• Court: Hawaii Supreme Court

24 P.3d 648

95 Haw. 452

STATE of Hawai`i, Petitioner-Plaintiff-Appellee, v. Lloyd T. WEST, Respondent-Defendant-Appellant.

No. 21844.

Supreme Court of Hawai`i.

May 30, 2001.

Richard K. Minatoya, Deputy Prosecuting Attorney, on the writ and supplemental brief.

Linda C.R. Jameson, Deputy Public Defender, on the supplemental brief.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Judge HIFO, assigned by reason of vacancy.¹

Opinion of the Court by MOON, C.J.

Pursuant to Hawai`i Revised Statutes (HRS) § 641-13 (1993),<sup>2</sup> petitioner-plaintiff-appellee State of Hawai`i (the prosecution) timely petitions this court for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in State v. West, 95 Hawaii 484, 24 P.3d 680 (App.2000). Therein, the ICA vacated the second circuit court's³ judgment, guilty conviction, and sentence of respondent-defendant-appellant Lloyd T. West (Defendant) for seven counts of first degree sexual assault and remanded this case for new trial.

The alleged error in this case involves the Defendant's attempts, at trial, to introduce evidence that the Complainant made statements to a detective that she had been molested by a boy named Ashley in an unrelated sex assault. Defendant contended that the victim's statement regarding Ashley may have been false and that Defendant should be permitted to elicit evidence regarding the falsity of those statements because, if false, they were relevant to the Complainant's credibility.

The ICA held, in relevant part, that the trial court erroneously excluded the evidence of the allegedly false allegation. In its petition, the prosecution essentially argues that the ICA wrongly concluded that the evidence was admissible. We granted certiorari in this case to consider the admissibility of allegedly false statements by a complainant in a sexual assault case regarding an unrelated sexual assault. For the reasons stated herein, we reverse the ICA's decision and affirm the second circuit court's judgment, conviction, and sentence in this case.

I. BACKGROUND

Defendant was indicted on August 14, 1997 on, inter alia,⁴ eight counts of sexual assault in the first degree, in violation of HRS § 707-730(1)(b) (1993), for acts of fellatio and genital penetration involving then-four-year-old Mary Minor⁵ (MM). Trial commenced on April 28, 1998.

During Defendant's opening statement, in the context of explaining what MM had disclosed to the detective who investigated the assault, defense counsel stated:

What else did [MM] tell the detective when she spoke to him? Well, she didn't limit her allegations of sexual molestation to —

At that point, the prosecution objected and asked to approach the bench. The following was discussed outside of the hearing of the jury:

[THE COURT]: What's your objection?

[THE PROSECUTION]: Counsel is going to question into — I'm assuming — other sexual acts with . . . people other than the defendant. Right now there's no actual 41[2]⁶ motion written. She's not allowed to say whether or not this child is alleging sexual misconduct on other perpetrators. Other perpetrators are not disclosed.

Until counsel has a good-faith basis to attack credibility by bringing in other perpetrators to deny it, she should not be able to bring it in. Its improper. 41[2] precludes it.

[THE COURT]: Okay.

[DEFENSE COUNSEL]: This is absolutely not 41[2]. We're talking about what a child made up to a detective, and she made allegations against other individuals.

She mentioned her mother and her grandmother in relation to it. And it's certainly — the [prosecution] wanted this for a motion in limine that's what the state should have done.

[THE COURT]: He did not know you were going to do this.

[DEFENSE COUNSEL]: It's in her statement to the detective.

Defense counsel's offer of proof was as follows:

I would tell the jury that she made allegations that when she was six and living with her grandmother, she was abused in her mother's presence at the home about a block and a half away from the grandmother's home by someone named Ashley.

She places other people there at the same time that this occurred. And being that if she's making up allegations, then allegations that she made against [D]efendant are equally suspect and it's certainly reasonable, and I don't think its fair to say that defense can't get into this in opening statement.

(Emphasis added.) Based on the foregoing, the trial court precluded defense counsel from raising any allegations of sexual abuse by anyone other than the defendant in her opening statement.

Prior to MM's testimony, defense counsel again raised the issue of MM's disclosure to the detective that she had been sexually assaulted by a person other than Defendant. Defense counsel contended the evidence she sought to admit did not involve "sexual conduct," but instead involved "other baseless allegations." The court then asked to see MM's statement to the detective in writing. Defense counsel explained that no transcript existed of the videotaped interview of MM by the investigating officer because the audio was "so bad" that the videotape was incapable of being transcribed. In lieu of a transcript, the court relied on representations by both attorneys as to the contents of the statement. Counsel for the prosecution and defense disagreed as to the contents of the relevant portions of MM's statement. Despite their disagreement, neither defense counsel nor the prosecution elicited testimony from the investigating detective regarding statements MM may have made about Ashley.

Based on her version of the videotaped interview, defense counsel explained that, when MM was interviewed by the detective, MM disclosed a "separate and distinct" incident of molestation by someone named Ashley. Defense counsel further argued that the testimony was relevant to the issues "whether the child makes up these allegations or has somehow been influenced to make such allegations," the "delay in reporting," and the "child's credibility." In arguing that the evidence was offered to impeach MM's credibility, defense counsel stated, "I have no idea whether these allegations involving Ashley occurred or didn't occur. I assume that law enforcement did not believe they occurred because they didn't follow up on them." (Emphasis added.) Additionally, when the trial court asked defense counsel how she knew whether MM's statements regarding the separate incident were true, defense counsel answered, "I don't know whether it's true or not." (Emphasis added.) Defense counsel later suggested that MM's mother would testify that she had never witnessed Ashley molesting MM, thereby contradicting MM's statement. The prosecution disputed defense counsel's assertion that MM had stated in the interview that her mother was present when the alleged incident with Ashley occurred and, thus, argued that MM's mother could not contradict MM's testimony in that regard. The trial court again sustained the prosecution's objection and precluded defense counsel from eliciting testimony from MM regarding Ashley.

During cross-examination of MM, defense counsel again requested permission to question MM about Ashley; the trial court again sustained the prosecution's objection. Then, prior to MM's mother being called as a witness, defense counsel once more sought to elicit the testimony regarding Ashley. This time, defense counsel cited State v. Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993), for the proposition that "evidence of a complainant's fantasies were legitimate fodder for the jury to consider[.]" After being given the opportunity to review Kelekolio, a case involving a cognitively-challenged complainant who allegedly fantasized about sexual encounters, the prosecution argued that Kelekolio required defense counsel to show "a habitual propensity or habitual fantasy" before MM's allegations regarding Ashley would be admissible. After hearing additional argument from both the prosecution and defense counsel, the trial court stated:

The way I am reading this case is that the [s]upreme [c]ourt did make a distinction with regard to Rule [4]12 of the rules of evidence where the evidence is not of prior sexual conduct but relates to cognition about sexual activity and says basically that Rule [4]12 wouldn't apply if that evidence was otherwise admissible.

And then as I understand it, turns then to decide or to examine whether statements about sexual fantasies of this particular complaining witness could be admissible as — to show her habit to fantasize and examines it from the point of view of habit-type evidence.

It does point out that — in the note that the sheer number of prior instances of particular conduct is an important factor in establishing a habit, but in — perhaps even more important is evidence from which an inference of consistency and invariability can be drawn.

Here the problem is we don't know that it's a fantasy, and there is no evidence that it is a fantasy. And secondly, there [are] not enough instances in my opinion to call it habitual propensity or habitual response. So I am going to sustain the objection.

(Emphasis added.) Thus, the trial court precluded defense counsel from eliciting any testimony about MM's allegations regarding Ashley. Subsequently, the jury found Defendant guilty of seven out of eight counts of first degree sexual assault submitted. On July 20, 1998, the trial court sentenced Defendant to a twenty-year term of imprisonment for each count, to be served concurrently, except that the first three counts were to run consecutively with the last four counts for a total of forty years, with credit for time served.

Defendant appealed, arguing that the trial court: (1) committed "numerous evidentiary errors" including, inter alia, preventing the defense from questioning MM and her mother about MM's allegations regarding Ashley; (2) erroneously denied Defendant's motion to dismiss; (3) failed to prevent prosecutorial...