State v. Yamada

• Decision Date: 13 November 2002
• Docket Number: No. 22456.,22456.
• Citation: 99 Haw. 542,57 P.3d 467
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Tetsuya YAMADA, Defendant-Appellant.
• Court: Hawaii Supreme Court

57 P.3d 467

99 Haw. 542

STATE of Hawai`i, Plaintiff-Appellee, v. Tetsuya YAMADA, Defendant-Appellant.

No. 22456.

Supreme Court of Hawai`i.

November 13, 2002.

Reconsideration Denied December 19, 2002.

As Amended December 24, 2002.

Linda C.R. Jameson, Deputy Public Defender, Tetsuya, Yamada, on the briefs, for the defendant-appellant.

Michael S. Kagami, Deputy Prosecuting Attorney, State of Hawai`i, on the briefs, for the plaintiff-appellee.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ., and ACOBA, J., concurring separately, and RAMIL, J., dissenting.

Amended opinion of the court by LEVINSON, J.

The defendant-appellant Tetsuya Yamada appeals from the judgment of conviction and sentence of the third circuit court, the Honorable Greg K. Nakamura presiding, convicting him of two counts of manslaughter, in violation of Hawai`i Revised Statutes (HRS) ž 707-702(2) (1993).¹ Yamada argues that the circuit court erred in: (1) instructing the jury on the offense of murder in the first degree, in violation of HRS ž 707-701(1)(a) (1993),² on the basis that (a) the circuit court did not "instruct the jury that they were to find all of the elements of the charged offense beyond a reasonable doubt before they reach[ed] the insanity defense[,]" (b) the circuit court separated a single charge of murder in the first degree into two charges of manslaughter, and (c) the instruction was "extremely complicated, unnecessarily lengthy and confusing to read"; (2) submitting two separate verdict forms to the jury as to the offense of manslaughter under Count I of the complaint; (3) sentencing Yamada for two offenses of manslaughter under Count I of the complaint; and (4) disallowing as evidence the audio portion of a videotaped "reenactment" of Yamada's role in the killings, as he recalled it, upon which an expert witness relied in assessing Yamada's sanity.

As discussed more fully infra in section III, we hold: (1) that the circuit court's jury instructions regarding Count I of the complaint were plainly erroneous³ in that they deprived Yamada of his constitutional right to a unanimous verdict; (2) that HRS ž 707-702(2) does not, in a prosecution for first degree murder predicated upon an alleged violation of HRS ž 707-701(1)(a), permit multiple manslaughter convictions, as a function of the number of victims, in the event that the jury finds that the prosecution has failed to carry its burden of proving beyond a reasonable doubt that the defendant, at the time that he or she caused the deaths, was not under the influence of extreme mental or emotional distress (EMED); and (3) that Hawai`i Rules of Evidence (HRE) Rule 803(b)(4) (1993)⁴ excepts statements made for the purpose of diagnosis, if reasonably pertinent to diagnosis, from the general rule against hearsay, even made to a physician who is consulted for the sole purpose of facilitating the physician's testimony as a witness at trial.⁵ Accordingly, we vacate the circuit court's judgment and sentence and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

On October 1, 1996, Yamada was charged by complaint with murdering his ex-wife, Carla Russell, and her daughter, Rachel DeCambra, on September 29, 1996, with a shotgun. Count I charged Yamada with murder in the first degree, in violation of HRS ž 707-701, see supra note 2; counts II and III each charged him with murder in the second degree, in violation of HRS ž 707-701.5 (1993);⁶ count IV charged him with carrying or use of a firearm in the commission of a separate felony, in violation of HRS ž 134-6(a) (1993);⁷ and count V charged him with burglary in the first degree, in violation of HRS ž 708-810(1)(a) (1993).⁸

At trial, Yamada did not dispute the fact that he had caused the victims' deaths; rather, he maintained that, "at the time he committed this act, he suffered from a physical or mental disorder which substantially impaired his ability to either appreciate the wrongfulness of his conduct or to control his actions to the requirement of the law." Yamada adduced evidence that, beginning in 1959, he had suffered a series of debilitating accidents that caused brain damage resulting in memory loss and blackouts. Harold Hall, Ph.D., an expert in the fields of clinical, forensic, and neuropsychology, testified, based on his interviews with Yamada, his review of Yamada's medical records, interviews with persons who were acquainted with Yamada, and Yamada's reenactment of the events of September 29, 1996 as he recalled them, that "because of deteriorating brain condition triggered by the massive stress reaction there was a substantial impairment in [Yamada's] cognitive and volitional . . . capacities" on that date. Consequently, in Dr. Hall's opinion, Yamada was, as a result of a mental disorder, disease, or defect, substantially impaired in his capacity to appreciate the wrongfulness of his conduct and to conform his actions to the requirements of the law.

At the time of the incident, Yamada was living with his third wife, Puanani Haili, in the Waikea Uka area near Hilo, on a large property containing a number of houses, including that in which his ex-wife, Carla Russell, her daughter, Rachel DeCambra, and DeCambra's boyfriend lived. There was considerable conflict between the Yamada and Russell households at the time of the homicides, including a dispute over who owned the house in which Russell lived; indeed, a mutual TRO governing the conduct of the Yamadas, on the one hand, and Russell and her daughter, on the other, had been issued.

Yamada did not testify at trial, but Detective Edwin Tanaka of Hawai`i County Police Department testified that, in the course of the Mirandized statement that Yamada gave him on the day of the incident, Yamada had claimed that he had been sitting on the porch of his house earlier in the day when he had heard Russell and DeCambra laughingly deriding him and his wife with ethnic slurs. Yamada had claimed to have become angry and to have proceeded to his warehouse to retrieve his shotgun and birdshot. Yamada represented to Detective Tanaka that his last recollection prior to killing Russell and DeCambra was walking towards their house, although he did not recall loading the shotgun. Following the deaths, Yamada recalled hearing the telephone ring inside Russell's house, where he discovered Russell's and DeCambra's bodies.

In support of Dr. Hall's testimony regarding mental disease, disorder, or defect, Yamada sought, pursuant to HRE Rule 803(b)(4), see supra note 4, and HRE Rule 703 (1993), see infra note 11, to introduce a forty-two-minute videotape of Yamada's "reenactment" of the events of September 29, 1996, as he recalled them, into evidence. Dr. Hall had instructed Yamada to "go through the sequence involved in the incident . . . in [the] exact way as he recall[ed] it . . . from his memory, not from what people told him or what he concluded." Dr. Hall testified that the "reenactment" was conducted to aid him in diagnosing Yamada and preparing for trial, and not for purposes of treatment. In addition, he testified that such "reenactments" were "good practice" in the field of forensic psychology.

The circuit court granted Yamada's motion for a jury viewing of the videotape in part and denied it in part. Specifically, the circuit court permitted Yamada to play the videotape for the jury without the audio component. The circuit court ruled that the videotape did not qualify as an exception to the rule against hearsay pursuant to HRE Rule 803(b)(4), but that, even if it did, "the sound should still not be allowed under [HRE] Rule 403." The circuit court was concerned that, "[i]f the videotape is played with sound then the defendant's statement would be the equivalent of testimony . . . not under oath and not subject to cross-examination." The circuit court elaborated upon its ruling as follows:

The danger of allowing the videotape played with sound is that the jury would consider defendant's statements heard from the videotape as testimony even though their true probative value is to explain Doctor Hall's testimony. Therefore, it will be my position that the probative value of the videotape with the sound is substantially outweighed by the danger of unfair prejudice, misleading or confusing the jury.

Regarding the admissibility of [Yamada's] statements as supporting the basis for Doctor Hall's opinions by way of, um, simply Doctor Hall's testimony, youÔÇöDoctor Hall would be able to testify as to those statements provided thatÔÇöthat the proper Tabieros v. Clark Equipment Co., 85 Hawai`i 336, 944 P.2d 1279 (1997), foundation is laid.

Further, regarding the showing of the videotape without sound, if the portions of the videotape shown merely show defendant's conduct not intended as assertions, those . . . portions would not be considered hearsay. On the other hand nonverbal conduct intended as assertions would be hearsay.

Regarding nonverbal conduct intended as assertions, this would be a close call, but, um, with Doctor Hall explaining what [Yamada's] conduct was intended to be rather than [Yamada] orally stating his perceptions and feelings[,] there is a minimal danger that the jury would consider defendant's conduct as shown in the videotape as testimonial in nature. So I'll . . . take the position that Doctor Hall can explain defendant's assertive conduct on the videotape provided also that the proper Tabieros foundation is laid.[⁹]

Accordingly, Yamada played the videotape for the jury without the audio component, while Dr. Hall narrated.

After closing arguments, the circuit court instructed the jury regarding first degree murder, pursuant to HRS ž 707-701, see supra note 2, second degree murder, pursuant to HRS ž 707-701.5, see supra note 6, manslaughter, pursuant to HRS ž 707-702(2), see supra note 1, and first degree burglary, pursuant to HRS ž 708-810(1)(a), see supra note 8. The circuit court's Special Instruction No. 1. set forth the material...