No. CAAP-11-0000661

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI’I

STATE OF HAWAI’I, ) FC-CR No. 10-1-271K ) PLAINTIFF-APPELLEE, ) APPEAL FROM JUDGMENT AND ) GUILTY CONVICTION ON Vs. ) AUGUST 10, 2011 ) FAMILY COURT OF STANLEY K. HUIHUI, JR., ) THE THIRD CIRCUIT ) DEFENDANT-APPLELLANT. ) HONORABLE JOSEPH P. FLORENDO ________________________________) JUDGE

ANSWERING BRIEF And

CERTIFICATE OF SERVICE

CHARLENE IBOSHI PROSECUTING ATTORNEY LINDA L. WALTON 4893 COUNTY OF HAWAI’I 81-980 HALEKI’I STREET SUITE 150 KEALAKEKUA, HAWAI‘I 96750 TELEPHONE: 808-322-2552 ATTORNEYS FOR PLAINTIFF-APPLELLEE

Electronically FiledIntermediate Court of AppealsCAAP-11-000066128-MAR-201207:44 AM

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INDEX PAGE I. STATEMENT OF THE CASE……………………………………………………….1 II. PROCEDURAL HISTORY………………………………......................................4 III. STANDARD OF REVIEW……………………………….......................................4 1. BENCH TRIAL………………………………................................................4 2 SUFFICIENCY OF EVIDENCE……………………………….......................5 3. PLAIN ERROR………………………………................................................5 4. INVITED ERRORS AND INADVERTANT ERRORS……………………….5 5. EVIDENTIARY RULINGS………………………………...............................5 IV. ARGUMENT…………………………………………………………………………..6

1. THE COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO INTRODUCE EVIDENCE OF COMPLAINANT’S ALLEGED PRIOR ATTEMPTS TO HARM HERSELF, ESPECIALLY GIVEN THE STATE OF THE EVIDENCE AT THE TIME INTRODUCTION WAS SOUGHT…………………………………………………………………...……6

2. THERE IS NO EVIDENCE JUDGE FLORENDO CONSIDERED DEFENDANT”S FAILURE TO MAKE A STATEMENT BEFORE OR AS A BASIS FOR FINDING HIM GUILTY………………………………...........15

3. IT IS NOT CLEAR WHETHER JUDGE FLORENDO REFERRED TO PRE-ARREST OR POST ARREST SILENCE AND PRE-ARREST

SILENCE SHOULD BE ADMISSIBLE…………………..…………….........16 IV. CONCUSION…...……………………………………………………………………19

V. STATEMENT OF RELATED CASES……………………………………………..19

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TABLE OF AUTHORITIES CASES PAGE

Alsip, State v.

Haw.App. 259, 630 P.2d 126 (1981)…………………………….................16 Antone, State v.

62 Haw. 346, 353, 615 P.2d 101, 107 (1980)………………………………….….4 Arakawa, State v.

101 Hawai‘i 26, 35, 61 P.3d 537, 546 (App.2002)………………………………..4 Basque, State v. 66 Haw. 510, 511, 666 P.2d 599, 601 (1983)…………………………….....11, 12 Chun, State v.

4 P. 3d 523, 93 Haw. 389 (2000)……………………………………………………6

Fox, State v.

70 Haw. 46, 760 P.2d 670, 675 (Haw. 1988)………………………………………5

Furutani, State v.

76 Haw. 172, 179, 873 P. 2d 51, 58, (1994)……………………………………….6

Gutierrez, State v. 1 Haw.App. 268, 270, 618 P.2d 315, 317 (1980)……………………………...4, 16

Iaukea, State v.

56 Haw.343 at 349, 537 P. 2d 724 at 729. (1975)…………………………………6 Kekona, State v. 20 Hawai'i 420, 438-441, 209 P.3d 1234, 1252 - 1255 (Hawai‘i App.,2009)….10 Maddox, State v. 16 Hawai'i 445, 457-460, 173 P.3d 592, 604 – 607

(Hawai‘i App., 2007)………………………………………………………..7, 8, 9, 12 Mainaaupo, State v. 17 Hawai'i 235, 252, 178 P.3d 1, 18 (Hawai‘i, 2008)…………………………….17 McGriff, State v.

76 Haw. 148, 871 P.2d 782 (1994)………………………………………………….6

Miner, State v.

2 Haw.App. 581, 584, 637 P.2d 782, 784 (1981)…………………………….16

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CASES PAGE Moriwaki, State v.

71 Haw. 347, 791 P.2d 392 (Haw. 1990)…………………………………………...5

Pinero, State v. 778 P.2d 704, 70 Haw. 509, (1989)………………………………………………..12

Richie, State v.

88 Haw 19, 33, 960 P.2d 1227, 1241 (1998)……………………………………….5 Smith, State v.

68 Haw. 304, 712 P.2d 496, (Haw. 1986)…………………………………………..5

Staley, State v. 982 P.2d 904, 91 Haw. 275, (Haw. 1999)…………………………………………..6

Torres, State v.

85 Haw. 417, 945 P. 2d 849 (App. 1997)…………………………………………...6 Vliet, State v.

91 Hawai‘i 288, 298, 983 P.2d 189, 199 (1999)…………………………….4, 6, 16

Grancorvitz v. Franklin 890 F. 2d 34 (7th Cir Ct App. 1989)……………………………...........................18 Jenkins v. Anderson 447 U.S. 231, 100 S.Ct. 2124, 65 L. Ed. 2d 86 (1980)…………………………..17 People v. Deenadayalu

772 N.E.2d 323, 329 (Ill.App.Ct.2002)………………………………………….5, 16

United States v. Whalen

940 G.2d 1027 (7th Cir. 1991)……………………………...................................18 RULES 403 Hawaii Rules of Evidence………………………………...............................15 404 Hawaii Rules of Evidence.......................................................................7, 11

No. CAAP-11-0000661

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI’I

STATE OF HAWAI’I, ) FC-CR No. 10-1-271K ) PLAINTIFF-APPELLEE, ) APPEAL FROM JUDGMENT AND ) GUILTY CONVICTION ON Vs. ) AUGUST 10, 2011 ) FAMILY COURT OF STANLEY K. HUIHUI, JR., ) THE THIRD CIRCUIT ) DEFENDANT-APPLELLANT. ) HONORABLE JOSEPH P. FLORENDO ________________________________) JUDGE

I. STATEMENT OF THE CASE

Heidi Ako was a former household member and girlfriend of defendant Stanley Hui

Hui, Jr. They were living together as boyfriend/girlfriend when Heidi’s daughter was

born and during the pregnancy but lived separately on the date of this incident 10/11/10.

Tr. 8/10/11 6-10. Heidi had asked Defendant to take her to court for a proof of

compliance hearing and watch the child while she was in court. Id 10. On the way

home from court they got into an argument. Id 10-11. According to Heidi, the argument

began while he was driving but he pulled over right across from Sandy’s Drive In and

they continued to argue. Defendant was hitting Heidi and she was yelling back. She

reached to open the door and he grabbed her arm and said, “You better not open that

fucking door again. If you try and open it again I’ll punch you in your face.” Id 11-12.

Prior to that statement he had punched her and pulled her arm. At some point she tried

to jump over the seat to check on her daughter in the back and he “ripped me back by

my hair, back into the front and that’s when I tried to open the door again and right there

he hit me in the face. Punched me.” …..”I just was trying to get away whether it was like

in the back seat to grab my daughter. I really didn’t want to jump out of the truck and,

you know, like leave her in there with him, but I was just like thinking about myself at

that time like I didn’t wanna be put through anymore pain or whatever he was gonna do

next.” When asked “Was the truck in motion at the time?” She answered “No, it was

stopped. “ Id 12-13. She had bruises on he legs, a huge bump on her head and on her

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face. Id 13-19. Her Uncle Edmund Heu told her to go to the police when he saw her.

Id 19-20. On cross examination, Heidi stated that Defendant introduced her to

someone in the court parking lot, but that wasn’t what the fight was about. Id 22. She

did not accuse him of sleeping with the woman she met in the parking lot. Id 23-24.

She denied threatening to jump out of the car and denied opening the door while the car

was in motion. Id 24. He stopped the car at Sandy’s because he was hitting her and

he “couldn’t control both.” “I was, you know at that point trying to jump in the back. He

grabbed me by my hair. And at some point after that he stopped the truck on the side of

the road.” “I didn’t want to leave my daughter, but I also didn’t want to stay right there

where he was, you know, obviously abusing me.” Id 24-25. When the car was stopped

she partially opened the door, he grabbed her arm and yanked it back. She couldn’t get

out because he had threatened to punch her in the face. Id 26 He did not give her a

chance to leave the vehicle or tell her to leave. Id 27-28.

Edmund Heu testified that he lived with Heidi Ako’s mother and knew Heidi 11 years.

Id 31-32. After the incident he saw a lump on her forehead and told her to go to the

police. Id 33-34. Officer Burkey also saw a substantial bruise on Heidi’s forehead plus

bruising on her left arm and left thigh/buttocks area. Id 38-39.

Rachel Burke testified that she saw Defendant at the court parking lot on 10/11/10

and talked to him for a little bit. His girlfriend came out and Defendant introduced them.

Id 43-44. She saw Heidi get in the car then they drove down the hill, back up the hill

and then down the hill again. Heidi seemed agitated. Rachel never saw Heidi get out

of the car, but was not sure if they were both in the car due to tinted windows. Id 45-48.

Defendant testified that when Heidi came out of court she got in the truck and

accused him of sleeping with Rachel. Id 52-53. She opened the door and jumped out

after he started the car in the parking lot, saying “I’ll find my ride.” He said “Are you

sure”, she said “Yes.” He said “What about baby.” She laughed and he drove away

without her. Id 53-54. After he left he decided to come back and asked her to get in the

vehicle saying “I’ll take you home.” She replied “No worries. I’ll get a ride. I’ll find a

ride. I’ll wait for somebody.” Finally she reconsidered and got in his vehicle. There was

no indication she said anything about wanting to die or trying to kill herself. Id 54-55.

She continued to scream at him as he drove, then attempted to open the door and jump

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out “so I grabbed the door” I said “you want to get out, I’ll stop. So I stopped by

Sandy’s.” He said all he did was grab the door to prevent her from jumping out, then he

offered to let her out when he stopped. Id 56. She did not get out when he offered the

chance then when they got by Higashi Hara Park “she really jumped out this time going

like 55 miles an hour” “I caught her by her hair as she was jumping out of the truck,

and I—and I held her while I was coming to a stop. I pulled her back in so she don’t hit

the ground, but she was slamming cause we were going 55 miles. And as I pulled to

the side, I pulled her in and she hit her head right on my stick shift. He saw she was

bruised and offered to take her to the hospital but she said no. He claimed he never

prevented her from leaving the car either at Sandy’s or near Higashi Hara or anywhere

else, except when he was driving the car. Id 57-59. None of Defendant’s testimony

established that Heidi was threatening or trying to harm herself. If the trier of fact

believed his testimony, she initially refused to accompany him from the courthouse

because she was angry at him. Rather than stating she wanted to harm herself, she

stated she would get a ride with someone else. After she did agree to ride with him,

there was no testimony that she was saying she wanted to die or to hurt herself. Rather

she was still yelling angrily at him. Defense, after providing the above testimony asked,

“Have you had any prior contact with Heidi Ako where she threatened to hurt herself?”

The prosecutor objected. Defendant said “yes.” The court sustained the objection.

When defense said he was trying to establish that she had a suicidal tendency, Judge

Florendo stated “You need more foundation in order to establish that the acts in this

case were suicidal.” Id. 61 Defense offered no additional evidence that Heidi ever said

she was trying to commit suicide or threatened to hurt herself by jumping out of the car

or otherwise on the date of the incident. He offered no testimony that alleged prior

threats to hurt herself involved a similar methodology and the court again sustained the

objection. Id 59-61.

Thereafter on cross examination Defendant stated that Heidi had already jumped out

of the car traveling 55 mph, when he caught her by her hair. He stated he considered

that as “saving somebody.” Id 62-63. He contended the bruises on her body was from

being outside the door of the vehicle and slamming into the truck going 55 while he was

holding her by her hair. 63-64. The prosecutor then asked if he was claiming he saved

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her life because she was trying to kill herself and he answered yes. Id 64. This was the

first suggestion in the record that she had tried to kill herself on that day. Thereafter,

defense did not redirect or again request to admit evidence of prior suicide attempts.

II. PROCEDURAL HISTORY

In response to a Motion for Judgment of Acquittal, the court found that the State had

proved Heidi and Defendant formerly resided together and thus were household

members. Id. 41.

Judge Florendo found, based on the testimony of Heidi Ako, that the State had

proven the three charges in the Complaint, Abuse of Family or Household Member,

Terroristic Threatening Second Degree and Unlawful Imprisonment Second Degree,

beyond a reasonable doubt. He found Defendant’s testimony unsupported by the

remaining evidence. He did not ask about whether Defendant had made a statement

to police until after he made the finding of guilt.

After he found the Defendant guilty as charged without inquiring as to whether

Defendant had made any prior statement to police about his version of events, Id p 70-

71, Judge Florendo stated to Defendant that, “One would think that if you had just

saved a person’s life, you would have mentioned that to the police officers.” Id 74. The

court emphasized that he was only asking about this “after I’ve already decided the

case.” Id 75. The court also elaborated more on the reasons for finding that

Defendant’s version was not true. “Well one would think that there would be more

injuries than what was indicated in these pictures if she jumped out of your truck at 55

miles an hour.” Id 76-77.

III. STANDARD OF REVIEW

1. BENCH TRIAL

A judge is presumed not to be influenced by incompetent evidence. State v. Antone,

62 Haw. 346, 353, 615 P.2d 101, 107 (1980). If there is sufficient competent evidence

to support the judgment or finding below, there is a presumption that any incompetent

evidence was disregarded and the issue determined from a consideration of competent

evidence only. State v. Gutierrez, 1 Haw.App. 268, 270, 618 P.2d 315, 317 (1980),

State v. Vliet, 91 Hawai‘i 288, 298, 983 P.2d 189, 199 (1999). In a trial without a jury

the danger of undue prejudice is minimized. State v. Arakawa, 101 Hawai‘i 26, 35, 61

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P.3d 537, 546 (App.2002). In a bench trial, “the Court can disregard inadmissible

testimony, and has greater discretion in the conduct of the trial, among other things, in

matters which might be confusing and prejudicial in the minds of the jury”); People v.

Deenadayalu, 772 N.E.2d 323, 329 (Ill.App.Ct.2002).

2. SUFFICIENCY OF EVIDENCE

Evidence is sufficient to support a conviction if there is substantial evidence as to

every material element of the offense charged, meaning credible evidence which is of

sufficient quality and probative value to enable a person of reasonable caution to

support a conclusion. State v. Richie, 88 Haw 19, 33, 960 P.2d 1227, 1241 (1998).

3. PLAIN ERROR

Although the appellate court has the power to recognize plain error, the decision is

discretionary. The court will deem harmless beyond a reasonable doubt any error,

defect, irregularity or variance that does not affect the substantial rights of the

defendant. The harmless error doctrine applies to errors that occur in the trial process,

including those that implicate an accused’s constitutional rights. The court’s power to

deal with plain error should be exercised sparingly and with caution because the plain

error rule represents a departure from a presupposition of the adversary system-that a

party must look to his counsel for protection and bear the cost of counsel’s mistakes.

Error is not to be viewed in isolation or in the abstract but in light of the entire record and

given the weight to which it is entitled. Only if there is a reasonable possibility that an

error contributed to conviction or sentence should the conviction be reversed. State v.

Aplaca, 96 Haw. 17, 25 P. 3d 792 (2001). Matters not raised by objection below are

reviewable in the discretion of the appellate court. State v. Fox, 70 Haw. 46, 760 P.2d

670, 675 (Haw. 1988).

4. INVITED ERRORS AND INADVERTANT ERRORS

Invited errors are not reversible errors unless defense counsel's demonstrated lack

of skill or judgment has caused the introduction of highly prejudicial matters which would

otherwise be inadmissible. State. v. Smith, 68 Haw. 304, 712 P.2d 496, (Haw. 1986).

Defendant may not use an inadvertent and invited error by a prosecutor to his

advantage after a conviction. State v. Moriwaki, 71 Haw. 347, 791 P.2d 392 (Haw.

1990).

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5. EVIDENTIARY RULINGS

Evidentiary decisions based on exclusion or admission of relevant evidence, which

require a judgment call on the part of the court, are reviewed for abuse of discretion.

The responsibility for maintaining the delicate balance between probative value and

prejudicial effect lies largely within the discretion of the trial court. State v. Iaukea, 56

Haw.343 at 349, 537 P. 2d 724 at 729. (1975). Where the application of an evidentiary

rule can yield only one correct result, the proper standard for appellate review is the

right wrong standard. State v. Staley, 982 P.2d 904, 91 Haw. 275, (Haw. 1999).

However, determination of preliminary factual issues concerning the admission of

evidence will be upheld unless clearly erroneous. State v. McGriff, 76 Haw. 148, 871

P.2d 782 (1994). A judge has discretionary authority, reviewable for abuse, to admit

expert testimony, State v. Vliet, 95 Haw. 94 19 P. 3d 42, (2001). The judge’s decision

that the probative value of evidence exceeds any unfair prejudice is also reviewable

only for abuse of discretion. State v. Furutani, 76 Haw. 172, 179, 873 P. 2d 51, 58,

(1994). The court must consider the record as a whole to determine whether an attack

on credibility has occurred, so as to permit admission of evidence to support credibility.

State v. Torres, 85 Haw. 417, 945 P. 2d 849 (App. 1997). When the State asserts the

improper admission of evidence against the defendant constituted harmless error, the

issue is whether the properly admissible evidence was such that the improperly

admitted evidence could not have affected the jury verdict. Where there is voluminous

evidence in support of conviction, errors in admission of evidence may be deemed

harmless. State. v. Chun, 4 P. 3d 523, 93 Haw. 389 (2000).

IV. ARGUMENT

1. THE COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO INTRODUCE EVIDENCE OF COMPLAINANT’S ALLEGED PRIOR ATTEMPTS TO HARM HERSELF, ESPECIALLY GIVEN THE STATE OF THE EVIDENCE AT THE TIME INTRODUCTION WAS SOUGHT.

The Standard of review of Judge Florendo’s decision that there was insufficient

evidence that there was a suicide attempt on the present occasion to allow alleged prior

suicide attempts is abuse of discretion, because a judgment call was required on the

part of the court.

Hawaii Rules of Evidence (HRE) Rule 404(a) generally prohibits evidence of a

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person's character for the purpose of proving that he or she acted in conformity

therewith. However, under HRE Rule 404(a)(2), there is an exception for “evidence of a

pertinent trait of character of the victim of the crime offered by an accused.” The

commentary to HRE Rule 404(a)(2) (1993) observes that the subsection is mainly

applicable to homicide and assault cases. The commentary further states:

In State v. Lui, 61 H.[Haw.] 328, 603 P.2d 151 (1979), the court observed: “[A] defendant who claims self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or aggressive character either to demonstrate the reasonableness of his apprehension of immediate danger or to show that the decedent was the aggressor.” For the first purpose, noted the Lui court, there must be a foundation showing that the accused knew of the deceased's character “or of the specific acts of violence committed.” But such a foundation “is not required where the factual issue is to determine the aggressor.” The evidence was properly excluded in Lui because, since the defendant shot the unarmed victim at a distance of ten feet, there was simply no “factual dispute as to who was the aggressor.”

In State v. Maddox, 116 Hawai'i 445, 457-460, 173 P.3d 592, 604 - 607 (Hawai‘i

App., 2007), the court held that evidence of the deceased's violent character offered to

show that the deceased was the first aggressor is properly excluded where the

evidence at trial at the time the defendant seeks to introduce the evidence, does not

support a factual dispute as to who was the aggressor in the case on trial. There must

be some evidence that the victim was the aggressor, independent of the victim’s

reputation for aggression. Id. The court cited Lui for the proposition that where

defendant shot the deceased, who was unarmed, from a distance of ten feet, the trial

court properly excluded evidence of the deceased's violent character because the

record did not support a factual dispute as to who was the aggressor. The court next

cited State v. Adam, for the proposition that:

[W]hen the factual issue is, as between the defendant and the other person, who was the aggressor, the defendant may introduce evidence of the other person's violent or aggressive character. In other words, there must be evidence to support a finding that the defendant was the aggressor and there must be contrary evidence to support a finding that the other person was the aggressor. In the situation where there is evidence to support a finding that the defendant was the aggressor and there is no evidence to support a finding that the other person was the aggressor, the defendant may not introduce evidence of the other person's violent or aggressive character.

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Adam, 97 Hawai‘i at 418, 38 P.3d at 586 (emphases added). In other words, before the defendant is entitled to introduce evidence of the victim's character for violence, there must be sufficient evidence to support a finding that the victim was the first aggressor.

The Maddox court then continued to explain that the court could properly decline to

receive the evidence where the record did not support a finding that the victim was the

aggressor in the case being tried, at the time defense sought to introduce the evidence:

[11] The trial court is afforded broad discretion in determining the order and mode of interrogating witnesses and presenting evidence. HRE Rule 611(a) (1993) provides:

Rule 611 Mode and order of interrogation and presentation. (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. According to the Commentary to HRE Rule 611, “[Subsection (a) ] states the common-law principle allowing the court broad discretion in determining order and mode of interrogation” and is intended “to define broad objectives and to leave the attainment of those objectives to the discretion of the court.” [12] Thus, Mota's alleged character for violence was only admissible if there was evidence to support a finding that Mota was the first aggressor. In addition, the trial court had the discretion to prevent Maddox from questioning Mota about Mota's alleged character for violence until evidence to support a finding that Mota was the first aggressor had been introduced.FN8 ….

The Court noted: The Circuit Court granted the State's Motion in Limine and precluded Maddox from questioning Mota about the alleged prior acts of violence. At the time of the court's ruling, only the State had proffered the evidence it expected to introduce at trial regarding the charged assault; Maddox had not proffered the details of his version of the altercation with Mota. In support of its ruling, the circuit court noted that it did not think there was “any evidence other than to show that [Maddox] is the aggressor, the first aggressor and the only aggressor in this incident.” The court further stated that “if the evidence comes out as indicated[,]” it would be more prejudicial than probative to permit the hearsay allegations contained in the restraining order petitions to be admitted. Although the circuit court granted the State's motion in limine, it advised defense counsel that it would reconsider its ruling if the evidence at trial was different than proffered by the State.FN11 The court informed defense counsel, “By all means, we can revisit this issue if the evidence doesn't pan out as described to me by [the DPA]. Okay?”

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During his cross-examination of Mota in the State's case-in-chief, defense counsel renewed Maddox's request to question Mota about the bad acts alleged in the restraining order petitions. The Circuit Court denied Maddox's request. The court noted that the evidence showed that after Mota retreated to his bedroom, Mota “is in essence attacked from behind by Mr. Maddox with his leatherman tool.” The court stated that “the evidence is clear at this point who was being aggressive that night” and that it did not think the “factual pattern indicates anything questionable about who was being aggressive....” The court reiterated that it believed the hearsay relating to the restraining orders was “way more prejudicial than probative” given that the incidents were “so old” and were not known to Maddox.

…….. Mota's testimony did not raise a factual issue regarding who was the first aggressor but instead plainly showed that Maddox was the first aggressor. Thus, the circuit court did not abuse its discretion in denying Maddox's requests to cross-examine Mota about past acts of violence because the requests were made before evidence to support a finding that Mota was the first aggressor had been introduced.

[14] Once Maddox testified in the defense case, there was ample evidence to support a finding that Mota was the first aggressor. Maddox testified that Mota attacked him without provocation and that Mota hit and cut Maddox on the back of the head with the utility tool before Maddox was able to turn the tool toward Mota and stab Mota in the chest. At that point in the trial, Maddox was clearly entitled to question Mota about the past acts of violence reflected in the Oregon court documents. Maddox, however, did not attempt or seek permission to question Mota about past acts of violence after Maddox had introduced evidence supporting a finding that Mota was the first aggressor. Thus, the circuit court was never called upon to rule on whether such questions were permissible after the required evidentiary foundation had been laid. Under these circumstances, we cannot say that the circuit court erred.

Id 116 Haw at 459-60, 173 P. 3rd at 606-607. In this case Judge Florendo stated “You

need more foundation in order to establish that the acts in this case were suicidal.” Id.

61. Up to that point there was no evidence that Heidi was attempting to harm herself

deliberately on the date of the incident. The first any such evidence came in was on the

prosecutor’s cross examination of defendant, where defendant said he thought she was

trying to harm herself on this particular date. Thereafter, defense did not again try to

introduce the evidence of prior attempts to harm herself. The circumstances are

identical to Maddox, and this Court cannot say that Judge Florendo erred under the

circumstances.

However, even if defense counsel had moved to admit the prior harm evidence at

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the appropriate time, it is far from clear that such evidence would have been admissible,

because it was not relevant and necessary for the purposes set forth in Lui, supra which

are 1) to cause the defendant to have an apprehension of danger or 2) to prove that the

alleged victim was in fact the aggressor.

Contrary to Appellant’s argument, the factual dispute was not about whether

Complainant was trying to exit a fast moving vehicle to harm herself or just to get away

from Defendant. Rather the factual dispute revealed by the conflicting testimony was

that Complainant said she was trying to exit a stopped vehicle after Defendant hit her

and Defendant contended she was trying to exit a fast moving vehicle. If in fact she

was trying to exit a fast moving vehicle, Defendant would have had a reasonable

apprehension of danger to her (although not to himself as in Lui) and would have been

justified in trying to stop her regardless what her reason was for exiting, under a choice

of evils defense, so long as his reason for stopping her was to prevent greater injury

and so long as he stopped the vehicle immediately thereafter and gave her the

opportunity to depart safely. She could have gotten just as injured if she was acting

recklessly by attempting to jump out of a moving vehicle as if she jumped out of a

moving vehicle in a deliberate attempt to harm herself. A history of prior attempts to

harm herself would not be necessary for Defendant to reasonably have an

apprehension that allowing the complainant to jump out of a car traveling 55 mph was

unsafe and would be likely to harm the complainant more than pulling her hair to bring

her back into the vehicle would harm her. Thus the alleged prior suicide attempts were

irrelevant to Defendant’s alleged reasonable apprehension of harm. Nor were they

relevant to show that the victim was the aggressor. There was no evidence that Heidi

Ako was the aggressor. These are the only two purposes for which such evidence has

been previously admitted in Hawaii. Thus under the rational of Hawaii cases there was

no basis to admit the evidence for either of the purposes allowed in Lui and its progeny.

In State v. Kekona, 120 Hawai'i 420, 438-441, 209 P.3d 1234, 1252 - 1255 (Hawai‘i

App., 2009) the Court reviewed the history in Hawaii of Rule 404(a)(2):

In State v. Lui, 61 Haw. 328, 329-30, 603 P.2d 151, 153 (1979) (per curiam), the defendant, after getting into a fist fight with the decedent, went home, grabbed a handgun, and returned to the scene of the fight. While talking to a friend who was in a parked car, the defendant noticed the decedent approaching, disengaged from the

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conversation, and shot the decedent while the decedent was approximately ten feet away. Id. at 330, 603 P.2d at 153. The defendant testified that he thought the decedent was reaching for a gun; however, the decedent was not armed. Id., 603 P.2d at 153.

On appeal, the defendant claimed that he was denied the right to present evidence

when the trial court refused to admit character evidence of specific acts of prior violence

committed by the decedent. Id. at 330, 603 P.2d at 153-54. The Hawai‘i Supreme Court

initially observed that at common law:

a defendant who claims self-defense to a charge of homicide is permitted to introduce evidence of the deceased's violent or aggressive character either to demonstrate the reasonableness of his [or her] apprehension of immediate danger or to show that the decedent was the aggressor. ….

Although Hawaii's laws on justification supersede the common law defense of self-defense, nevertheless, the common law rules on character evidence are applicable.

In State v. Basque, 66 Haw. 510, 511, 666 P.2d 599, 601 (1983), the Supreme Court

held that the trial court abused its discretion in excluding the victim’s prior acts of

violence where prior to the attempt to introduce the evidence:

…..it is evident that a factual question existed as to who was the aggressor in this case. The trial court implicitly acknowledged as much when, as part of its “self-defense” jury instruction, it stated: “In order for the defendant to have been justified in the use of deadly force in self-defense, he must not have provoked the assault on him or have been the aggressor.”

The Court continued: ... [T]he instant case is unlike State v. Lui, supra. The rule in Lui regarding the use of a victim's criminal record to establish who was the aggressor, however, is applicable. That rule was later codified as Rule 404(a)(2) of the Hawaii Rules of Evidence.... The State contends that this provision allows only the use of character evidence-to be proved by reputation or opinion-and not evidence of “other crimes, wrongs, or acts,” which is covered by [HRE] Rule 404(b).

In Lui, however, we treated general character evidence and specific prior acts (including those reflected in the victim's criminal record) the same for purposes of corroborating a defendant's self-defense claim as to who was the aggressor. A growing number of other courts are in accord. As Dean Wigmore has stated: “There is no substantial reason against evidencing the character (of a deceased victim) by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial court's discretion; and the prohibitory considerations applicable to an accused's character have here little or no

12

force.” ….. See also State v. Estrada, 69 Haw. 204, 215, 738 P.2d 812, 821 (1987) (holding that prior bad acts of a police officer, “which indicate a propensity for violence, aggression, or abuse of police powers, ... were highly relevant to [the defendant's] self-defense claims”); State v. Adam, 97 Hawai‘i 413, 418, 38 P.3d 581, 586 (App. 2001) (holding that “when the factual issue is, as between the defendant and the other person, who was the aggressor, the defendant may introduce evidence of the other person's violent or aggressive character”); State v. Maddox, 116 Hawai‘i 445, 458, 173 P.3d 592, 605 (App. 2007) (holding that before a “defendant is entitled to introduce evidence *441 **1255 of the victim's character for violence, there must be sufficient evidence to support a finding that the victim was the first aggressor”; and that once the defendant testified that he was attacked and cut by the victim without provocation before using the victim's utility tool to stab the victim, the defendant was “clearly entitled” to question the victim about past acts of violence reflected in court documents from the State of Oregon).

The Basque court further noted:

[4] [5] We realize that it resides within the sound discretion of the trial court to determine whether there exists sufficient good reason for evidence of the deceased's criminal record to be introduced or argued during trial. We are mindful of the potential dangers such evidence presents. In this case, however, the court itself recognized in its jury instructions that there existed a genuine factual dispute as to whether the appellant or the deceased was the aggressor. Under such circumstances, we conclude the court abused its discretion when it flatly prohibited appellant from arguing to the jury, or otherwise eliciting evidence of, the criminal history of the deceased. We cannot say beyond a reasonable doubt that such an abuse did not contribute to the jury's verdict. See generally State v. Pokini, 57 Haw. 26, 30, 548 P.2d 1402, 1405, cert. denied, 429 U.S. 963, 97 S.Ct. 392, 50 L.Ed.2d 332 (1976). On remand, the trial court shall retain the discretion to determine to what extent, and in what manner, evidence of the deceased's criminal record may be allowed in and alluded to. See Commonwealth v. Amos, 445 Pa. 297, 305, 284 A.2d 748, 752 (1971).FN6]

FN6. Some of the factors the trial court may consider are the nature of the prior crimes, wrongs, or acts, their proximity in time to the present incident, and the amount and type of extrinsic evidence which will be needed to establish those acts.

State v. Basque, 66 Haw. 510, 514-515, 666 P.2d 599, 602 - 603 (Hawaii, 1983) The need to consider various factors before evidence of specific prior acts is

admitted against the defendant was discussed in State v. Pinero, 778 P.2d 704, 70

Haw. 509, (1989) where the court reversed a conviction in a prosecution for murder of a

peace officer, based on the admission of a prior encounter by defendant with another

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police officer in which defendant had attempted to wrestle a gun away from another

police officer. In evaluating whether the prior acts of aggression of the defendant should

have been admitted, the court noted first that the trial court:

"did not say why the evidence had a tendency to make the existence of any fact that was of consequence to the determination of the case more probable or less probable."

778 P. 2d at 710. Then the court concluded that even though the two isolated events

were similar and the prosecutor gave a plausible explanation of relevancy on appeal,

the need for the evidence was not great because another police officer had seen the

gun in the defendant's hand, and the probability of hostile reaction against the

defendant outweighed any probative value. The court stated that when evidence of

other criminal acts is offered to prove a fact of consequence in the determination of a

case, the trial court must weigh a variety of factors including:

(1) The strength of the evidence as to commission of the crime;

(2) Similarities between the crimes;

(3) The time that has elapsed between them;

(4) The need for evidence;

(5) The efficacy of alternative proof and;

(6) The degree to which the evidence probably will rouse the jury to overmastering hostility.

The State submits that the same analysis should apply when admitted prior bad acts of

a complainant. Applying some of those considerations to this case:

1. There was no strong evidence that Heidi Ako was trying to commit suicide during

this incident. Nor was there any offer of proof about the strength of the evidence that

she tried to commit suicide in prior instances. If the trier of fact believed Defendant, he

would have found that Heidi Ako attempted to leave the vehicle when it was traveling at

a high rate of speed. However there was no evidence that that act was a deliberate

attempt to harm herself rather than a reckless act done in a fit of anger. There was no

evidence that she had made any suicidal statement. There was only evidence from

defendant that she was angry at defendant and did not wish to be in his presence.

Anger can cause a person to take foolish risks, regardless if the person is suicidal or

14

not. Not all persons who take foolish risks have an intent to harm themselves.

2. There was no offer of proof that the alleged prior attempts to harm herself were

of a similar nature.

3. There was no evidence regarding elapsed time between the prior incidents and

this incident.

4. The need for the evidence was not great. Regardless whether Heidi Ako

intended to harm herself or not on this occasion, defendant could have had a

reasonable apprehension that allowing her to jump from a moving vehicle would cause

greater harm than pulling her back in by the hair. Alleged prior attempts at suicide would

have made it no more likely that Defendant’s version of events was true. Complainant

never stated that she would under no circumstances have jumped from a moving

vehicle or that she never tried to harm herself. Rather she stated that in fact she tried to

exit a stopped vehicle on this occasion. Prior attempts at suicide would have done

nothing to rebut the trial court’s belief that if Defendant’s testimony were true there

would have been far more serious injuries to Heidi Ako, given common sense and the

laws of physics.

5. The efficacy of alternate proof of Defendant’s story, if true would have been the

nature of the injuries sustained. Also if his story were true, logic would dictate that he

would not then continue to drive with Heidi Ako in his vehicle, free to make another

attempt at suicide. A call to 911 to report an attempted suicide would have been useful

proof of Defendant’s story. In this case, there was no judicial finding that Heidi Ako was

even possibly trying to harm herself during this incident. In fact the judge found

Defendant’s description of events incredible because had they been true, there would

have been more injuries to Heidi than there were.

6. No jury trial was involved. Thus this factor is not significant in this case.

Under the circumstances of this case, prior suicide attempts would not have made it

more probable that defendant’s story was true. Thus the alleged prior attempts were

not relevant, or if slightly relevant, the relevance was outweighed by the danger of unfair

prejudice, confusion of issues, undue delay and waste of time, and thus, should not

have been admitted given HRE 403.

15

2. THERE IS NO EVIDENCE JUDGE FLORENDO CONSIDERED DEFENDANT”S

FAILURE TO MAKE A STATEMENT BEFORE OR AS A BASIS FOR FINDING HIM

GUILTY.

There is no evidence to suggest that Judge Florendo found Defendant guilty

because he did not make a statement. For all the Judge knew at the time he found

Defendant guilty, Defendant might have made an exculpatory statement to police about

his version of events and the state might have elected not to introduce such self serving

hearsay. Defendant would have been unable to introduce such self serving hearsay

unless it came in as a prior consistent statement after there was evidence of a prior

statement inconsistent with his trial testimony. No prior inconsistent statement was ever

introduced.

Judge FLorendo only asked about whether Defendant made a statement after he

had announced his finding of guilt. Tr 8/10/11 p 70-72, 74. After the prosecutor

contradicted Defendant’s statement that he had made a statement to police, Judge

Florendo did not address Defendant’s silence as a basis for his finding of guilt, but

explained to Defendant that Defendant’s testimony was inconsistent with the remaining

evidence because greater injury would have resulted if his story were true. Is 76-77. In

fact the injuries to her left side were consistent with Heidi’s testimony that he repeated

punched her while she was sitting in the passenger seat and he was in the driver’s seat.

One would not expect injuries to her left side if she exited the car in a manner that

allowed Defendant to grab her hair as she was in midair. The other reason Defendant’s

testimony was not believable was his contention that he caught her by the hair while her

body was outside the vehicle which was going 55 mph and pulled her by the hair back

into the moving vehicle. Common sense would dictate that if she was held only by the

hair, at that speed the hair would have been pulled out or the scalp pulled off and/or she

would have fallen and/or been dragged on the ground rather than just bumping against

Defendant’s car before being dragged back into the car as he claimed.

A judge is presumed not to be influenced by incompetent evidence. State v. Antone,

62 Haw. 346, 353, 615 P.2d 101, 107 (1980). If there is sufficient competent evidence

to support the judgment or finding below, there is a presumption that any incompetent

evidence was disregarded and the issue determined from a consideration of competent

16

evidence only. State v. Gutierrez, 1 Haw. App. 268, 270, 618 P.2d 315, 317 (1980),

State v. Vliet, 91 Hawai‘i 288, 298, 983 P.2d 189, 199 (1999). In a trial without a jury

the danger of undue prejudice is minimized. State v. Arakawa, 101 Hawai‘i 26, 35, 61

P.3d 537, 546 (App. 2002). In a bench trial, “the Court can disregard inadmissible

testimony, and has greater discretion in the conduct of the trial, among other things, in

matters which might be confusing and prejudicial in the minds of the jury”); People v.

Deenadayalu, 772 N.E.2d 323, 329 (Ill. App. Ct. 2002).

In State v. Alsip, 2 Haw.App. 259, 630 P.2d 126 (1981), the trial court misstated

some of the testimony in a colloquy with counsel during the course of the trial. This

court affirmed the conviction and noted:

If we hold that every expression of a misconception of the evidence made during the course of trial is a basis for reversal without a showing that it resulted in the ultimate finding of guilt on the issue tried, then obviously, trial judges will be careful to say nothing and parties will have lost the opportunity to clear up misconceptions, if they exist. We will not adopt a rule which would have such a chilling effect upon trial courts. Here, there is ample evidence to support the Court's ultimate conclusion without resort to the statements complained of. The statements made by the court below which are complained of, do not, considering the facts and circumstances of this case, overcome the presumption in favor of the correctness of the court's ultimate conclusions. Id. at 263, 630 P.2d at 129; see State v. Miner, 2 Haw. App. 581, 584, 637 P.2d 782, 784 (1981). In this case there is ample evidence to support Judge Florendo’s conclusion of guilt

without regard to whether or not defendant made any statement and the question

should not overcome the presumption in favor of correctness of Judge Florendo’s

conclusion.

3. IT IS NOT CLEAR WHETHER JUDGE FLORENDO REFERRED TO PRE-ARREST OR POST ARREST SILENCE AND PRE-ARREST SILENCE SHOULD BE ADMISSIBLE.

In State v. Mainaaupo, 117 Hawai'i 235, 252, 178 P.3d 1, 18 (Hawai‘i, 2008), the

Court held that a prosecutor may not comment on Defendant’s post-arrest silence

during closing argument. However the Court noted that the right to comment on pre-

arrest silence has not been decided in Hawaii:

17

FN9. While the DPA's comments could also be interpreted to refer to Lopez's pre-arrest silence, Lopez does not raise that point on appeal, and, therefore, we do not address it. As an aside, courts are divided on whether the government may comment on a defendant's pre-arrest silence. See Combs v. Coyle, 205 F.3d 269, 282 (6th Cir. 2000) (collecting cases).

Although the prosecutor should not have responded to the Judge’s question with a

comment about defendant’s post arrest silence, this error was harmless, as Judge

Florendo had already decided the case and even after the prosecutor’s statement,

Judge Florendo explained that his finding was not based on defendant’s silence but on

the inconsistency between defendant’s story and the injuries. The State submits that the

Judge’s initial question to defendant was not improper. If Defendant truly believed Heidi

was trying to commit suicide, Defendant logically would have summoned police before

any arrest, or would have taken her to the hospital immediately after the incident even

though she did not wish to go, rather than just driving her home and not alerting anyone

about her suicidal behavior. The State submits that prearrest silence under these

circumstances, as opposed to post arrest silence would have been admissible as

impeachment of Defendant's credibility.

In Jenkins v. Anderson 447 U.S. 231, 100 S.Ct. 2124, 65 L. Ed. 2d 86 (1980), the

Supreme Court addressed a situation where defendant testified at trial that the victim

attacked him with a knife and he killed defendant in self defense. On cross examination

the prosecutor asked the defendant whether he ever told the police what happened and

defendant admitted he did not do so until two weeks after the incident. The court held

that each state could decide on its own to what extent silence was relevant, but if

relevant, discussing prearrest silence did not violate the right against self incrimination

and held that a defendant's prearrest, pre-Miranda warning silence could be used to

impeach his exculpatory testimony at trial, stating that impeachment questioning is

acceptable because it "follows the defendant's own decision to cast aside his cloak of

silence and advances the truth finding function of the criminal trial. Id. 447 U.S. at 238,

100 S.Ct. at 2129:

Every criminal defendant is privileged to testify in his own defense or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury...Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth testing devices of the adversary process. Id 100 S.Ct. at 2129.

18

Once a defendant decides to testify the interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self incrimination. Id 100 S.Ct. at 2129.

Likewise, where a Defendant does speak to police and fails to mention a fact which he

subsequently claims at trial, his failure to mention that fact is admissible. United States

v. Whalen, 940 G.2d 1027 (7th Cir. 1991). There a Defendant had admitted to police

that he assaulted the victim but failed to tell police that he had done it in self defense.

He later claimed self defense at trial. The court held that the prosecutor's comments

that Defendant had not told investigators of his claims of self-defense was not an

impermissible comment on his exercise of his right to remain silent where defendant

had agreed to speak to correctional officers and had admitted assaulting the victim four

months after his arrest and initial exercise of his right to remain silent. There he had

told correctional officers where he was jailed that "I cut that f------'s throat. If I would

have done it right I would have killed him". The prosecutor argued that when a person

who has to defend himself goes out and tells people about it, he would be expected to

say "I cut the guy's throat but he was coming after me. I did what I had to do under the

circumstances to save myself." This was held proper closing argument.

In Grancorvitz v. Franklin, 890 F. 2d 34 (7th Cir Ct App. 1989) the court held that in a

murder prosecution in which Defendant claimed self defense, prosecutor's reference to

defendant's failure to seek medical attention after arrest, and the argument that such

failure contradicted Defendant's testimony that he had been attacked by victim's fists

and possibly a bottle, did not violate Defendant's right to remain silent. There the court

held the prosecutor could properly discuss the failure to mention injuries or seek

medical attention through the police. This failure was deemed relevant and admissible

even though it was post arrest, and Miranda warnings had been given. The court stated

there is a difference in refusing to speak about the facts of the crime and one's role and

in not asking for medical treatment or failing to complain of injuries. The right to remain

silent only includes the former.

IV. CONCLUSION

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Defendant’s conviction and judgment should be affirmed.

V. STATEMENT OF RELATED CASES

The State is unaware of any related case.

Dated: Kona, Hawai’i, March _______, 2012.

STATE OF HAWAII

By: ___________________ LINDA L. WALTON Deputy Prosecuting Attorney

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document(s) has been served

on ________________________ on March ______, 2012.

____________________________ Office of the Prosecuting Attorney