State v. Deguair ( 2016 )

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Electronically Filed
Supreme Court
SCWC-13-0000061
31-OCT-2016
08:37 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
PATRICK DEGUAIR, JR., Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0000061
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000061; CR. NO. 08-1-0773)
October 31, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises out of the 2008 robbery of the Aiea Cue,
in which three intruders restrained four individuals inside a
pool hall and stole cash and other valuables. Two of the
intruders, Ju Young Woo (“Woo”) and David Teo (“Teo”), entered
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into cooperation agreements with the State, and the third
intruder, Patrick Deguair, Jr. (“Deguair”), continued on to a
jury trial. Deguair’s defense was that Woo and Teo coerced him
into participating in the crime. The jury found Deguair guilty
on all counts: Count 1 (Robbery in the Second Degree, a class B
felony), Count 2 (Kidnapping as a class A felony), and Counts 3,
4, and 5 (Kidnapping as a class B felony). The jury also
answered interrogatories finding that each act of kidnapping was
committed as a continuing course of conduct, with no separate
and distinct intent from the robbery. Therefore, pursuant to
Hawaii Revised Statutes (“HRS”) § 701-109(1)(e) (2014), which
prohibits multiple convictions for offenses committed as a
continuing course of conduct, the Circuit Court of the First
Circuit1 merged Count 1 (the robbery, a lesser grade class B
felony) into Count 2 (one of the kidnappings, a higher grade
class A felony).
On appeal, Deguair argued that the circuit court erred in
convicting him of kidnapping as a class A felony on Count 2, as
he was entitled to the mitigating defense,2 which would have
reduced the kidnapping to a class B felony. A majority of the
1
The Honorable Glenn J. Kim presided.
2
The mitigating defense is contained in HRS § 707-720(3) (2014). It
states, as it did at the time of the alleged offense, “In a prosecution for
kidnapping, it is a defense which reduces the offense to a class B felony
that the defendant voluntarily released the victim, alive and not suffering
from serious or substantial bodily injury, in a safe place prior to trial.”
2
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Intermediate Court of Appeals (“ICA”) agreed, vacating the
circuit court’s Judgment of Conviction and Sentence as to Count
2 as a class A felony and remanding the case for entry of a
judgment of conviction on Count 2 as a Class B felony and for
resentencing solely on Count 2. State v. Deguair, CAAP-13-
0000061 (App. Feb. 27, 2015) (mem.) at 3. The ICA rejected
Deguair’s other points of error and affirmed the circuit court’s
judgment with respect to the convictions and sentences on Counts
3, 4, and 5. Deguair, mem. op. at 16.
On certiorari, Deguair argues that all of his convictions
are now of the same class (class B felonies). He contends that
HRS § 701-109(1)(e) requires the kidnapping convictions to be
“merged” into the robbery conviction. He also asserts that the
ICA gravely erred in holding that the circuit court properly
excluded prior bad act evidence that Woo and Teo were violent,
worked for Oahu criminal organizations providing protection, and
needed money. Deguair also contends that the ICA gravely erred
in holding that the circuit court properly declined to declare a
mistrial after the prosecutor questioned Deguair about whether
he and Teo had shot guns at the Koko Head shooting range.3
3
Deguair also presents the following questions on certiorari, which we
do not further address herein, as Deguair’s arguments that the ICA erred are
unpersuasive:
2) Did the Intermediate Court of Appeals Gravely Err in
Ruling That the Circuit Court Did Not Err in Denying the
Motion to Suppress Evidence?
(continued . . .)
3
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We hold that the ICA did not err in concluding that the
circuit court did not abuse its discretion in granting the
State’s motion in limine as to the prior bad acts of Teo and
Woo. We also hold that the ICA did not err in concluding that
the circuit court did not abuse its discretion in declining to
declare a mistrial. We hold, however, that the ICA erred in
remanding this case for resentencing solely on the kidnapping
conviction, foreclosing the possibility that the kidnapping
convictions could merge into the robbery conviction. We hold
that, under HRS § 701-109(1)(e), Deguair committed the
kidnappings as part of a continuous course of conduct in
committing the robbery; therefore, the kidnapping convictions
should merge into the robbery conviction. Accordingly, we
vacate the ICA’s April 21, 2015 Judgment on Appeal, and the
circuit court’s January 2, 2013 Judgment of Conviction and
Sentence. On remand, the circuit court is directed to reinstate
Deguair’s conviction on Count 14, to dismiss the convictions on
(. . . continued)
. . . .
5) Did the Intermediate Court of Appeals Gravely Err in
Ruling That the Circuit Court Did Not Err in Denying
Defendant’s Motion for New Trial?
4
Prior to entering its judgment of conviction and sentence on the four
kidnapping offenses (Counts 2 through 5), the circuit court had dismissed the
guilty verdict on the robbery offense (Count 1). Therefore, in addition to
vacating the circuit court’s judgment of conviction and sentence, this court
instructs the circuit court to reinstate the robbery conviction on Count 1.
See, e.g., State v. Timoteo, 87 Hawaii 108, 109, 119, 952 P.2d 865, 866, 876
(1997) (instructing the circuit court to reinstate a jury’s guilty verdict
(continued . . .)
4
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Counts 2, 3, 4, and 5, and to resentence Deguair on Count 1
only, pursuant to HRS § 701-109(1)(e), as the kidnapping
convictions merged into the robbery conviction.
II. Background
A. Indictment
On May 21, 2008, the State filed an Indictment against
Deguair, Woo, and Teo alleging that they committed Robbery in
the First Degree (Count 1), in violation of HRS § 708-
840(1)(b)(ii) (2014).5 The Indictment also alleged that they
kidnapped Paul Beltran (Count 2), Ruth Lemons (Count 3), John
Llacuna (Count 4), and Talagu Moliga (Count 5), all in violation
of HRS § 707-720(1)(e) (2014).6 Before trial, both Woo and Teo
entered into plea agreements and agreed to testify for the
State, and Deguair proceeded to trial on his own.
(. . . continued)
against the defendant for simple trespass and remanding the case to the
circuit court for resentencing).
5
That statute provides, in relevant part, as it did at the time of the
alleged offense:
Robbery in the first degree. (1) A person commits the
offense of robbery in the first degree if, in the course of
committing theft . . . (b) The person is armed with a
dangerous instrument . . . and: . . . (ii) The person
threatens the imminent use of force against the person of
anyone present with intent to compel acquiescence to the
taking of or escaping with the property. . . .
6
That statute provides, as it did at the time of the alleged offenses,
“(1) A person commits the offense of kidnapping if the person intentionally
or knowingly restrains another person with intent to: . . . (e) Terrorize
that person or a third person. . . .”
5
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B. The State’s Motion in Limine No. 2
On August 29, 2012, the State filed a Motion in Limine No.
1 requesting an order from the circuit court compelling Deguair
to disclose “any and all evidence the defense intends to use” to
support the anticipated duress7 and choice of evils8 defenses.
7
HRS § 702-231 (2014) codifies the duress defense. It states, in
relevant part, as it did at the time of the alleged offenses, the following:
(1) It is a defense to a penal charge that the defendant
engaged in the conduct or caused the result alleged because
he was coerced to do so by the use of, or a threat to use,
unlawful force against his person or the person of another,
which a person of reasonable firmness in his situation
would have been unable to resist.
(2) The defense provided by this section is unavailable if
the defendant recklessly placed himself in a situation in
which it was probable that he would be subjected to duress.
The defense is also unavailable if he was negligent in
placing himself in such a situation, whenever negligence
suffices to establish the requisite state of mind for the
offense charged. . . .
(5) In prosecutions for any offense described in this Code,
the defense asserted under this section shall constitute an
affirmative defense. The defendant shall have the burden of
going forward with the evidence to prove the facts
constituting such defense, unless such facts are supplied
by the testimony of the prosecuting witness or circumstance
in such testimony, and of proving such facts by a
preponderance of the evidence pursuant to section 701-115.
8
HRS § 703-302 (2014) codifies the choices of evils defense. It states,
in relevant part, as it did at the time of the alleged offenses, the
following:
(1) Conduct which the actor believes to be necessary to
avoid an imminent harm or evil to the actor or to another
is justifiable provided that:
(a) The harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law
defining the offense charged;
(b) Neither the Code nor other law defining the offense
provides exceptions or defenses dealing with the specific
situation involved; and
(c) A legislative purpose to exclude the justification
claimed does not otherwise plainly appear. . . .
6
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That same day, Deguair’s counsel sent the State two letters
setting forth prior bad act evidence concerning Teo and Woo that
Deguair intended to proffer. Two days later, on August 31,
2012, the State filed a Motion in Limine No. 2 seeking to
preclude reference to the following allegations:
1. David Teo is/was known as a strong arm and debt
collector for Oahu crime organizations.
2. David Teo participated in the “taxing” of legal and
illegal gambling businesses for protection of their
businesses.
3. In [sic] or about March 2008, David Teo smashed a man’s
face into the windshield of a car while attempting to
collect money from the man, in the parking lot of Tony
Roma’s restaurant in Pearl City.
4. David Teo told Defendant Patrick Deguair, Jr. that he
(David Teo) had just gotten out of jail and “needed this
take.”
5. David Teo said to Defendant Patrick Deguair, Jr.,
“Remember what happened to the guy in the parking lot.”
6. Ju Young Woo protected criminal organizations operating
in the Pearl City and Aiea Communities.
7. Ju Young Woo received and sold stolen motor vehicle
parts.
8. Ju Young Woo collected money for drug dealers.
9. Ju Young Woo beat several people with a metal pipe on
the bike path near the ABC Used Auto Parts.
10. Aiea Cue was not paying its “tax” for protection to
“the Samoans.”
11. Ju Young Woo needed money to pay a lawyer for
representation concerning an arrest for stealing a tractor.
The State objected to the timing of the disclosure of this HRE
Rule 404(b) evidence, as the trial had been pending for four
years, and Deguair provided notice to the State of these bad
acts with only two weeks before the start of trial.
7
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At a hearing on the motion, Deguair’s counsel argued that
the bad act evidence was relevant to his duress and choice of
evils defenses. Specifically, he argued that the jury needed to
know what Deguair knew of Teo and Woo in order to judge whether
a person of reasonable firmness would have been able to resist
these men. The State counter-argued that the probative value of
the evidence was “so attenuated” that it was “outweighed by 403
concerns. . . .”
The circuit court ruled as follows:
I am going to . . . specifically make that 403
determination that any probative value this might have
along the lines that [Deguair’s counsel] has brought up as
to that element of the duress defense . . . would be I
think substantially outweighed by the danger of unfair
prejudice and confusion of the issues, et cetera. . . . I’m
going to grant the State’s motion to preclude all of these
except . . . three and five. Because . . . that is a
threat, certainly an implied threat, the use of force that
would go directly to the Defense’s duress defense which I’m
strongly inclined to include in this case when it goes to
the jury.
C. Trial
1. Undisputed Facts
The facts about the robbery elicited at trial are not
disputed. Deguair did not deny his participation (with Teo and
Woo) in robbing the Aiea Cue and kidnapping four individuals who
were there. Instead, Deguair’s primary defense was duress. He
claimed he took part in Woo’s plan because he was scared of Teo.
The facts elicited at trial regarding the events of April
3, 2008 were as follows. At closing time at the Aiea Cue, four
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friends remained on the premises: John Llacuna (the cashier),
Ruth Lemons (Llacuna’s girlfriend), Paul Beltran (who helped
with cleaning and odd jobs), and Tony Moliga (security and
parking lot attendant). Beltran was at the back door trying to
lock it, when he heard knocking. Llacuna went to the door, when
it suddenly burst open, and Teo, Deguair, and Woo entered.
Beltran ran toward the front door, and Teo pursued him,
tackled him to the ground, handcuffed him behind his back, and
left him face-down on the ground. Llacuna, Lemons, and Moliga
were herded to the rear of the Aiea Cue and ordered to lie face
down and to relinquish their cell phones. Teo later carried
Beltran over to them.
It appeared that the three intruders were working together.
Deguair used a crowbar to strike and redirect the videocameras.
Woo used a torch to cut open the ATM and coin machine. The cash
register was also opened with a nearby key. Teo, Deguair, and
Woo exited the Aiea Cue after taking money and other property.
2. Testimony of Woo
The State called Woo who testified that he met Deguair
shortly before the Aiea Cue robbery. Woo explained that Deguair
was the mastermind behind the robbery and assigned Woo the job
of cutting open the ATM and change machine, assigned Teo the job
of getting people on the ground, and gave himself the job of
redirecting the videocameras. Woo testified that he did not
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force Deguair to participate in the robbery, and that Deguair
participated willingly. At the close of Woo’s testimony, the
State rested.
3. Testimony of David Teo
The defense called Teo, an acquaintance of Deguair’s. He
testified that the robbery was Deguair’s plan, that he did not
force Deguair to make a plan, and that Deguair participated
willingly in the robbery.
4. Testimony of Patrick Deguair, Jr.
Outside the jury’s hearing, before Deguair took the stand,
Deguair’s counsel asked the circuit court if he could elicit
testimony that Deguair was afraid of Woo because he saw Woo kill
a man in March 2008. The circuit court decided to allow the
testimony to come in.
Deguair then took the stand. He testified that he
witnessed Teo “walk[] up behind [a] guy and smash[] his head
into” a car windshield, bloodying the man’s face, and causing
the man to pass out on the ground. He testified that Teo told
him to buy an acetylene torch and fill it with gas a week before
the Aiea Cue robbery.
Deguair also testified that he contacted Woo for motorcycle
mirrors, and Woo asked Deguair to meet him at Aiea Cue and,
later, the junkyard. Woo gave Deguair the mirrors at the
junkyard. When Deguair asked how much he owed, Woo told him not
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to worry about it and that Deguair could help him later. Woo
then started telling Deguair about his plan to rob the Aiea Cue.
Woo said people inside the Aiea Cue would let him in. He
intended to take $50,000 that he said was in a safe at the
bottom of the change machine. Woo asked Deguair to go with him
to turn the videocameras up. Deguair told him he could not be
involved in the robbery because he had a good federal job. Just
then, an SUV pulled up and Teo exited and approached them.
While Deguair continued to turn Woo down, Teo “surprise[d]”
Deguair, “got [him] from the side and . . . pin[ned Deguair’s]
head against . . . the SUV.” Teo banged Deguair’s head on the
side of the SUV and squeezed Deguair’s neck. Teo told Deguair,
“Punk, I need this take. . . Remember what happened in the
parking lot? You like that happen to you?” Deguair believed
Teo was referring to the incident in the parking lot when Teo
smashed a man’s face into a car windshield. At that point, Woo
came closer to Deguair and said, “Come on, you gotta do this. .
. . Brah, I give you free parts. . . . What? You too good for
us? You cannot do this kind stuff when we need your help?”
Deguair testified that he got into the SUV because he was
afraid of Teo. He testified that Woo produced the crowbar.
When the group arrived at Aiea Cue, Deguair paused and did not
get out of the SUV, so Teo said, “Punk, no make me come in there
and get you.” Deguair testified that he did not go voluntarily
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through the Aiea Cue door and he did not feel free to leave.
Deguair admitted that he turned the videocameras towards the
ceiling. Woo then told him to look for a “turbo box” by the
cash register area, and Deguair complied. He went to the cash
register area, but there was no box there, so Woo told Deguair
to tell Teo that, and Teo started ransacking the cashier’s area.
Meanwhile, Woo started cutting the change machine open. Woo
then called Deguair over and used his pry bar to pry open the
machine. Woo ordered Deguair to get the kidnappees’ cell
phones, and Deguair complied.
At the end of Deguair’s direct examination, the State asked
the defense to make “an affirmative declaration on the record
that it has abandoned the duress defense as to Woo concerning an
alleged March 2008 murder at the ABC junkyard.” The court
declined to order the defense to do so, stating that the murder
simply had not come up in Deguair’s testimony.
Also on cross-examination, the following exchange took
place between the State and Deguair:
Q [by the State]: Now, you had met David Teo before this
April 3, 2008 robbery; right?
A: A few times, yes.
Q: And you told us that when you were living at the Royal
Gardens in Waikiki, he came over; right?
A: That’s one of the times he came over, yeah.
Q: And isn’t it true that before the April 3, 2008
robbery, you took David Teo to the Koko Head range to shoot
guns?
[Deguair’s counsel]: Objection.
[The State]: 702-231(2).
The Court: Sustained.
[Deguair’s counsel]: That’s fine.
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When court adjourned for the day, Deguair’s counsel made an
oral motion for mistrial due to the Koko Head shooting range
question. He argued he had no notice of that bad act evidence,
and the parties had agreed to approach the bench and give the
court an opportunity to rule on whether such evidence could be
elicited. The State counter-argued that the jury should hear
the evidence to determine if Deguair had “recklessly place[d]
himself in a situation whereby this alleged coercion can be
exerted upon him,” which renders the duress defense unavailable.
The State also argued that it had been trying to establish a
relationship between Teo and Deguair before the robbery.
The circuit court considered the question to be “an ambush”
and stated that it was “shocked” when the State asked the
question, as it seemed to have come “out of left field.” It
also considered the evidence to be “completely irrelevant” as
well as “prejudicial.” The circuit court decided not to declare
a mistrial, as that would be “way too drastic a remedy to
correct this.” While the circuit court believed he had stricken
the answer from the record, defense counsel pointed out that
there was no answer because the circuit court had sustained the
defense’s objection. The circuit court then stated that the
question was “no harm, no foul.” The circuit court proposed
striking the question and telling the jury to disregard it, but
defense counsel did not ask the circuit court to do that.
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Relevant to this exchange, the circuit court had instructed
the jury at the start of trial as follows:
If I sustain an objection to a question, for example, a
witness is testifying, one of the attorneys is examining
that witness and the attorney asks a question, the other
attorney jumps up and objects, if I sustain the objection,
it means I’m not going to allow the witness to answer the
question. If something like that happens, don’t speculate
what the answer might have been. Don’t speculate about the
question. Don’t speculate about my ruling. An unanswered
question is just that. It’s an unanswered question. It’s
not evidence of any kind.
Deguair’s redirect testimony commenced the following day.
Deguair again testified that he participated in the Aiea Cue
robbery because he was afraid of Teo. He believed Teo could
have killed him if Teo smashed his head into a windshield. The
defense then rested.
5. The State’s Rebuttal Evidence
The State put on rebuttal evidence by Teo and Woo that
Deguair was not coerced into participating in the crime. Teo
denied ever smashing a man’s face into a car windshield. He
also denied slamming Deguair against the side of the SUV and
squeezing his neck. He denied reminding Deguair of how he
smashed a man’s face into a windshield, denied saying that he
“needed this take,” denied forcing Deguair into the SUV, denied
asking Deguair to buy a torch kit and gas, and denied forcing
Deguair out of the SUV at the Aiea Cue and telling him, “[P]unk,
no make me get out and get you.”
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On rebuttal, Woo testified that when Deguair visited the
junkyard ostensibly to discuss motorcycle mirrors, it was
Deguair who said, “I’m not here about the mirrors.” Woo denied
asking Deguair to redirect the Aiea Cue videocameras, denied
telling Deguair, “Come on, you got to do this for us,” and
denied that Deguair stated that he did not want to participate
in the robbery. He also testified that he did not see Teo slam
Deguair against the side of the SUV or choke him. Woo testified
that Teo did not force or threaten Deguair to go into or out of
the SUV. After rebuttal, the State rested.
6. Merger Sidebar
The jury was given a set of interrogatories asking whether
the robbery and each of the kidnappings were committed through a
continuous course of conduct and with no separate and distinct
intent, mirroring the language of HRS § 701-109(1)(e), the
statute at issue in this case. While the jury was deliberating,
the circuit court asked for counsels’ thoughts on what the
circuit court should do in the event that the jury answered
interrogatories in a manner that would result in the merger of
the robbery and kidnapping convictions. The circuit court
stated its inclination to merge the offenses by dismissing
whichever conviction was a lesser grade felony. In the event
all of the felony convictions were of the same grade, however,
the circuit court stated it would invite counsels’ input. The
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State also agreed that that situation would require some thought
and possible briefing. The circuit court then indicated that if
all the convictions were of the same grade, it would dismiss the
kidnapping convictions and find Deguair guilty of robbery only.
The circuit court then stated that further briefing was not
necessary at that time.
7. Verdict and Merger
The jury found Deguair guilty of robbery in Count 1 as a
class B felony,9 kidnapping in Count 2 as a class A felony, and
kidnapping in Counts 3, 4, and 5 as class B felonies. The jury
also found that Counts 1 and 2, Counts 1 and 3, Counts 1 and 4,
and Counts 1 and 5 were “part of a continuing and uninterrupted
course of conduct” and were committed “with one intention, one
general impulse, and one plan encompassing both offenses,” for
purposes of the merger subsection of HRS § 701-109, subsection
(1)(e). As a result, the circuit court dismissed Count 1
(robbery), consistent with its earlier decision that a class B
robbery conviction had to merge into a higher class A kidnapping
conviction.
9
The jury found Deguair guilty of robbery in the second (not first)
degree. HRS § 708-841 (2014) states, as it did at the time of the alleged
offense, “A person commits the offense of robbery in the second degree if, in
the course of committing theft . . . [t]he person threatens the imminent use
of force against the person or anyone who is present with intent to compel
acquiescence to the taking of or escaping with the property[.]”
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8. Sentence
The circuit court sentenced Deguair to 20 years’
incarceration on Count 2 (class A kidnapping), and 10 years’
incarceration each on Counts 3, 4, and 5 (class B kidnappings),
with credit for time served, and with the sentences to run
concurrently. Deguair timely appealed.
D. ICA Appeal
On appeal, Deguair argued that the circuit court erred in
convicting him of kidnapping as a class A felony on Count 2, as
he was entitled to the mitigating defense (that he voluntarily
released the victim, alive and not suffering from serious or
substantial bodily injury, in a safe place prior to trial),
which would have reduced the kidnapping to a class B felony. A
majority of the ICA agreed. Deguair, mem. op. at 3. The ICA
therefore vacated Deguair’s conviction and sentence on Count 2
and “remand[ed] the case for entry of a judgment of conviction
on Count 2 as a class B felony and for resentencing on Count 2.”
Id.
The ICA, however, rejected Deguair’s argument that the
kidnapping convictions should have merged into the robbery
conviction. It held, “Where the jury returns a verdict of
guilty on two counts that merge, the State is given the option
to decide which of counts subject to merger should be
dismissed.” Id. at 10. The ICA cited State v. Padilla, 114
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Hawaii 507, 517, 164 P.3d 765, 775 (App. 2007), for this
proposition. The ICA stated that the “State did not oppose the
Circuit Court’s decision to merge the robbery count into the
separate kidnapping counts,” and that, on appeal, “[t]he State
does not argue that it would have objected to the Circuit
Court’s merger decision if the mitigating defense had been
applied to Count 2.” Deguair, mem. op. at 10 & 10 n.4.
Further, the ICA rejected Deguair’s argument that all of the
kidnapping convictions should have merged together, stating that
he provided no authority for that proposition, and that each
kidnapping count in Deguair’s case “required proof of a separate
and distinct intent with respect to each victim that were not
subject to merger,” citing State v. Correa, 5 Haw. App. 644, 706
P.2d 1321 (1985)). Deguair, mem. op. at 10.
The ICA also rejected Deguair’s argument that the circuit
court erred in excluding prior bad act evidence concerning Woo
and Teo for three reasons. Id. at 14. First, defense counsel’s
notice was untimely; second, the admission of the bad act
evidence would have created a danger of unfair prejudice and
confusion of the issues and prolonged the trial; and third, the
circuit court allowed Deguair to present other evidence that
supported his duress and choice of evils defenses. Id.
Lastly, the ICA rejected Deguair’s argument that the
circuit court erred in failing to declare a mistrial following
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the State’s question about shooting guns at the Koko Head range.
The ICA stated that it “need not resolve whether the State’s
question was improper,” as the circuit court sustained defense
counsel’s objection to the question before Deguair gave an
answer, defense counsel declined to have the circuit court
strike the question, and the circuit court instructed the jury
that an unanswered question was not evidence. Id. at 15. The
ICA also considered the question to be “brief and isolated.”
Id. Finding no other errors by the circuit court, the ICA
affirmed the circuit court’s judgment of conviction and sentence
as to Counts 3, 4, and 5.
III. Standards of Review
A. Motion in Limine: Prior Bad Act Evidence
“Prior bad act” evidence under Hawaii Rules of Evidence
(HRE) Rule 404(b) (1993) is admissible when “it is 1) relevant
and 2) more probative than prejudicial.” State v. Maelega, 80
Hawaii 172, 183, 907 P.2d 758, 769 (1995) (citations omitted).
A trial court’s determination that evidence is “relevant” within
the meaning of HRE Rule 401 (1993) is reviewed under the
right/wrong standard of review. State v. Pulse, 83 Hawaii 229,
247, 925 P.2d 797, 815 (1996). However, a trial court's
balancing of the probative value of prior bad act evidence
against the prejudicial effect of such evidence under HRE Rule
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403 (1993) is reviewed for abuse of discretion. See id. An
abuse of discretion occurs when the court “clearly exceeds the
bounds of reason or disregards rules or principles of law or
practice to the substantial detriment of a party litigant.”
State v. Furutani, 76 Hawaii 172, 179, 873 P.2d 51, 58 (1994)
(citations omitted).
B. Motion for Mistrial
The denial of a motion for mistrial is within the sound
discretion of the trial court and will not be upset absent a
clear abuse of discretion. See State v. Loa, 83 Hawaii 335,
349, 926 P.2d 1258, 1272 (1996) (citations omitted). The trial
court abuses its discretion when it clearly exceeds the bounds
of reason or disregards rules or principles of law or practice
to the substantial detriment of a party litigant. State v.
Ganal, 81 Hawaii 358, 373, 917 P.2d 370, 385 (1996) (citation
and internal quotation marks omitted)).
C. Interpretation of HRS § 701-109(1)(e)
“[T]he interpretation of a statute is a question of law
reviewable de novo.” State v. Tauilili, 96 Hawaii 195, 197, 29
P.3d 914, 916 (2001) (citations omitted).
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IV. Discussion
A. Motion in Limine: Prior Bad Act Evidence
We first address whether the ICA erred in concluding that
the circuit court did not abuse its discretion in excluding
prior bad act evidence concerning Woo and Teo. On certiorari,
Deguair argues that (1) two-week notice of the defense’s
intention to use Woo’s and Teo’s prior bad acts was sufficient
time for the State to investigate and discuss the allegations
with Woo and Teo; and (2) the full range of prior bad acts was
necessary to show that the single incident allowed by the trial
court (Teo’s smashing a man’s head into a windshield) was not an
isolated incident and explained why Deguair took Teo seriously
when he said, “Punk, I need this take.”
We need not decide whether the defense provided reasonable
notice to the State of the prior bad acts. The circuit court
did not abuse its discretion in excluding the evidence. HRE
Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible where such evidence is probative of another fact
that is of consequence to the determination of the action,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, modus operandi, or absence of
mistake or accident. In criminal cases, the proponent of
evidence to be offered under this subsection shall provide
reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such evidence
it intends to introduce at trial.
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“The list of permissible purposes in Rule 404(b) is not intended
to be exhaustive ‘for the range of relevancy outside the ban is
almost infinite.’” State v. Clark, 83 Hawaii 289, 300, 926 P.2d
194, 205 (1996) (citation omitted). HRE Rule 403 provides,
however, “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
In this case, the circuit court did not allow Deguair to
present the following evidence:
1. David Teo is/was known as a strong arm and debt
collector for Oahu crime organizations.
2. David Teo participated in the “taxing” of legal and
illegal gambling businesses for protection of their
businesses.
. . . .
4. David Teo told Defendant Patrick Deguair, Jr. that he
(David Teo) had just gotten out of jail and “needed this
take.”
. . . .
6. Ju Young Woo protected criminal organizations operating
in the Pearl City and Aiea Communities.
7. Ju Young Woo received and sold stolen motor vehicle
parts.
8. Ju Young Woo collected money for drug dealers.
9. Ju Young Woo beat several people with a metal pipe on
the bike path near the ABC Used Auto Parts.
10. Aiea Cue was not paying its “tax” for protection to
“the Samoans.”
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11. Ju Young Woo needed money to pay a lawyer for
representation concerning an arrest for stealing a tractor.
In this case, Deguair’s argument for admitting this evidence was
that it was relevant to his duress and choice of evils defenses.
At trial, Deguair’s defense was that Teo in particular (not Woo)
coerced him into participating in the Aiea Cue robbery.
Therefore, items 6, 7, 8, 9, and 11 of the State’s Motion in
Limine No. 2, which all concern Woo, were not relevant to
Deguair’s defense and were, therefore, properly excluded. It
should be noted that the circuit court did allow Deguair to
present evidence that he saw Woo murder a man, but Deguair chose
not to present that evidence. Deguair’s abandonment of that
evidence further reinforces his focus on Teo, not Woo.
The remaining items related to Teo in the State’s Motion in
Limine No. 2 are items 1, 2, 4, and 10. (Item 10 stated that
Aiea Cue had not been paying its protection money to the
Samoans; it can be inferred that Teo, not Woo, would be the one
concerned with collecting protection money, per item 2).
Despite the preclusion of item 4, Deguair did manage to testify
at trial that Teo told him, “Punk, I need this take,” although
he did not testify that Teo had just gotten out of jail. In
short, the remaining precluded evidence at issue on certiorari
was that Teo was a strong-arm debt collector for crime
organizations, that he collected protection money from legal and
illegal businesses, that Aiea Cue was not paying its protection
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money, and that Teo had just gotten out of jail. Although each
of these items could be probative of why Teo might have
participated in robbing Aiea Cue, it is less probative of why
Teo would force Deguair to participate. This evidence was too
attenuated from the duress issue, unlike the evidence that Teo
smashed a man’s face into a windshield, then reminded Deguair of
that incident in order to secure Deguair’s participation in the
robbery -- evidence that the circuit court allowed. In short,
the circuit court did not abuse its discretion in precluding the
evidence after weighing its probative value versus the danger of
confusing the issues and misleading the jury.
B. Motion for Mistrial
We next address whether the ICA erred in concluding that
the circuit court did not abuse its discretion in declining to
declare a mistrial, after the prosecutor asked Deguair about
shooting guns at Koko Head range. When prosecutorial misconduct
is the basis for a motion for mistrial, a new trial is warranted
only where “the actions of the prosecutor have caused prejudice
to the defendant’s right to a fair trial.” State v. Kupihea, 80
Hawaii 307, 316, 909 P.2d 1122, 1131 (1996) (citation omitted).
“In order to determine whether the alleged prosecutorial
misconduct reached the level of reversible error, [the reviewing
court] consider[s] the nature of the alleged misconduct, the
promptness or lack of a curative instruction, and the strength
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or weakness of the evidence against [the] defendant.” Id.
(citations omitted).
Deguair argues that the nature of the alleged misconduct
was “egregious”:
None of the witnesses testified that they saw any firearms
or that anyone threatened to use a firearm. The mere
mention of it by the prosecutor would serve no other
purpose but to inflame the jury and prejudice them into
believing that Deguair was a hard-core criminal ready and
willing to use a gun.
With regard to the strength or weakness of the evidence, Deguair
argues that the evidence against him was not strong because Woo
and Teo were really the masterminds behind the robbery. As to
the “promptness or lack of a curative instruction,” Deguair
acknowledges that the circuit court sustained the objection, and
that defense counsel did not take the circuit court up on its
offer to strike the question, but argues that the two other
factors “should weigh in favor of a new trial.”
With respect to the first factor, we disagree with Deguair
that the prosecutor’s question was egregiously improper. There
is merit to the State’s argument that it was trying to establish
that a relationship existed between Teo and Deguair before the
robbery that would have tended to negate the defense of duress.
We agree with defense counsel and the circuit court, however,
that the intention to offer this evidence should have been
previously disclosed. We also agree with the circuit court that
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declaring a mistrial in these circumstances would have been “way
too drastic a remedy.”
With respect to the second factor, the circuit court
sustained defense counsel’s objection to the question about
shooting guns at Koko Head range prior to a response being
given, had offered to strike the question (and defense counsel
did not take the circuit court up on its offer), and had already
previously instructed the jury as follows
If I sustain an objection to a question, for example, a
witness is testifying, one of the attorneys is examining
that witness and the attorney asks a question, the other
attorney jumps up and objects, if I sustain the objection,
it means I’m not going to allow the witness to answer the
question. If something like that happens, don’t speculate
what the answer might have been. Don’t speculate about the
question. Don’t speculate about my ruling. An unanswered
question is just that. It’s an unanswered question. It’s
not evidence of any kind.
The jury is presumed to have followed the court’s instructions.
See State v. Knight, 80 Hawaii 318, 327, 909 P.2d 1133, 1142
(1996) (“[A]s a rule, juries are presumed to . . . follow all of
the trial court’s instructions.”) (citation omitted).
Finally, Deguair argues that the evidence against him was
not strong. The undisputed testimony showed that Deguair
participated in the robbery and kidnappings, and that the three
intruders were working together. There was contradictory
testimony regarding Deguair’s defenses of duress and choice of
evils from his accomplices. Deguair’s former co-defendants Woo
and Teo testified that Deguair masterminded the Aiea Cue
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robbery, whereas Deguair testified that he was forced to
participate. Although “a case of guilt is never ‘strong’ if
evidence essential to conviction is the testimony of an alleged
accomplice whose credibility the defendant subjects to severe
attack,” State v. Pokini, 55 Haw. 640, 645, 526 P.2d 94, 102
(1974), the undisputed testimony contradicted Deguair’s duress
and choice of evils defenses.
Under these circumstances, we believe that the prosecutor’s
question did not cause prejudice to Deguair’s right to a fair
trial. Therefore, we agree with the ICA that the circuit court
did not abuse its discretion in declining to declare a mistrial.
A. Merger
Lastly, we address whether the ICA erred in remanding this
case to the circuit court solely for resentencing on Count 2
(kidnapping) as a class B felony. Before this court, Deguair
argues that the kidnapping convictions should merge into the
robbery conviction. HRS § 701-109(1)(e) provides the following:
(1) When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if: . . .
(e) The offense is defined as a continuing course of
conduct and the defendant’s course of conduct was
uninterrupted, unless the law provides that specific
periods of conduct constitute separate offenses.
HRS § 701-109 “interposes a constraint on multiple convictions
arising from the same criminal conduct.” State v. Matias, 102
Hawaii 300, 305, 75 P.3d 1191, 1196 (2003). The commentary to
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HRS § 701-109 states that the statute “reflects a policy to
limit the possibility of multiple convictions and extended
sentences when the defendant has basically engaged in only one
course of criminal conduct directed at one criminal goal, or
when it would otherwise be unjust to convict the defendant for
more than one offense.” The “one course of criminal conduct
directed at one criminal goal” in this case was the robbery of
the Aiea Cue. The jury found that each kidnapping was committed
as a continuing course of conduct, with no separate and distinct
intent from the robbery. The kidnappings of Beltran, Llacuna,
Lemons, and Moliga were committed solely in furtherance of the
robbery. Therefore, we agree with Deguair that the kidnapping
convictions should merge into the robbery conviction.
The State maintains that under Padilla, it is the State’s
prerogative to elect whether the kidnapping convictions should
merge into the robbery conviction or vice versa. The State
therefore endorses the ICA’s conclusion in its memorandum
opinion in this case that Padilla, 114 Hawaii 507, 164 P.3d 765,
allows the prosecution to determine how criminal convictions
should merge. Deguair, mem. op. at 10. Padilla is
distinguishable. In Padilla, the circuit court plainly erred by
failing to give a merger instruction in the first place.
Padilla, 114 Hawaii at 517, 164 P.3d at 775. The usual remedy
in that instance is a retrial. Id. On appeal, however, the
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prosecution suggested dismissing one of the defendant’s
convictions to remedy the defect, rather than face wholesale
retrial. Id. The ICA in Padilla agreed with the prosecution’s
suggested remedy. Id. Padilla, therefore, does not stand for
the blanket proposition that the prosecution determines how
multiple convictions of the same class merge.
We further note that the ICA observed that “[t]he State
does not argue on appeal that it would have objected to the
Circuit Court’s merger decision [i.e., the merger of the robbery
conviction into the kidnapping convictions] if the mitigating
defense had been applied to Count 2.” Deguair, mem. op. at 10
n.4. Actually, the State made no election on appeal in this
case. Further, at trial, the State expressed its desire to
brief the merger issue in the event all of the convictions were
of the same class. While the jury was deliberating, the circuit
court asked for counsels’ thoughts on what the circuit court
should do in the event that the robbery and kidnapping
convictions merged and all were of the same class. The circuit
court stated its inclination to convict Deguair of robbery and
dismiss all of the kidnapping convictions, if all the
convictions were class B felonies. The State asked for an
opportunity to brief how merger would operate under those
circumstances, and the defense stated it had no objection to
further briefing. The circuit court also decided that if one of
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the kidnapping convictions came back as a class A felony, and
the rest of the convictions came back as class B felonies, the
circuit court was required to merge the robbery conviction into
the kidnapping convictions. The jury returned precisely that
combination of convictions, so there was no further opportunity
to discuss how merger would operate where all of the convictions
were of the same class.
The ICA also held that each kidnapping conviction must
stand because “the kidnapping counts charged in this case
required proof of a separate and distinct intent with respect to
each victim and were not subject to merger.” Deguair, mem. op.
at 10. For this proposition, the ICA cited to Correa, 5 Haw.
App. 644, 706 P.2d 1321. Correa, however, does not apply. At
issue in Correa was whether kidnapping was a lesser included
offense of robbery under HRS § 701-109(1)(a), not whether
kidnapping and robbery should merge as part of a continuing
course of conduct under HRS § 701-109(1)(e). Further, in this
case, the question is not whether each kidnapping merged with
the other kidnappings, but whether each kidnapping merged into
the single robbery offense. Therefore, Correa does not, as a
matter of law, foreclose the possibility that the kidnapping
convictions could be dismissed upon merger into the robbery
conviction. Indeed, the jury’s answers to interrogatories
indicated that the jury found that each kidnapping was part of a
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continuous course of conduct, and committed with no separate and
distinct intent from the single robbery.
Therefore, the ICA erred in remanding this case to the
circuit court solely for resentencing on Count 2 (kidnapping as
a class B felony), foreclosing the possibility that the
kidnapping convictions could merge into the robbery conviction.
We hold that, under HRS § 701-109(1)(e), Deguair committed the
kidnappings as part of a continuous course of conduct in
committing the robbery; therefore, the kidnapping convictions
merge into the robbery conviction.
V. Conclusion
The ICA did not err in concluding that the circuit court
did not abuse its discretion in excluding the prior bad act
evidence concerning Teo and Woo. The ICA also did not err in
concluding that the circuit court did not abuse its discretion
in declining to declare a mistrial. The ICA did err, however,
in remanding this case for resentencing solely on the Count 2
kidnapping conviction, as the kidnapping convictions merged into
the robbery conviction. Accordingly, we vacate the ICA’s April
21, 2015 Judgment on Appeal, and the circuit court’s January 2,
2013 Judgment of Conviction and Sentence. We remand this case
to the circuit court and direct it to reinstate Deguair’s
conviction on Count 1, to dismiss the convictions on Counts 2,
3, 4, and 5, and to resentence Deguair on Count 1 only, pursuant
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to HRS § 701-109(1)(e), based on the merger of Counts 2 through
5 into Count 1.
Dwight C.H. Lum /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
32