Chatman v. State ( 2024 )


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  • NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    30-JAN-2024
    08:25 AM
    Dkt. 101 MOT
    NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and
    CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI‘I
    CAAP-XX-XXXXXXX
    ANTHONY K. CHATMAN, Petitioner-Appellant, v.
    STATE OF HAWAI‘I, Respondent-Appellee
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (CASE NO. 1PR191000006)
    and
    CAAP-XX-XXXXXXX
    STATE OF HAWAI‘I, Plaintiff-Appellee, v.
    ANTHONY K. CHATMAN, Defendant-Appellant
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (FC-CR NO. 1FC021000011)
    and
    CAAP-XX-XXXXXXX
    STATE OF HAWAI‘I, Plaintiff-Appellee, v.
    ANTHONY K. CHATMAN, Defendant-Appellant
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (CR NO. 1PC021002353)
    NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    MEMORANDUM OPINION
    (By:    Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
    This consolidated appeal1 arises out of proceedings
    conducted on remand following the Hawai‘i Supreme Court's 2019
    Summary Disposition Order in State v. Chatman, No. SCWC-16-
    0000429, 
    2019 WL 912118
     (Haw. Feb. 22, 2019) (SDO) (2019 Chatman
    Remand Order).     The 2019 Chatman Remand Order ordered an
    evidentiary hearing in the circuit court pursuant to Hawai‘i
    Rules of Penal Procedure (HRPP) Rule 40(f), because Defendant-
    Appellant Anthony K. Chatman (Chatman) "asserted a colorable
    claim" that a "missing trial transcript" of the prosecution's
    child abuse expert witness "prejudiced his appeal[.]"            Id. at
    *2.   The circuit court issued its "Findings of Fact and
    Conclusions of Law [(FOF/COL)] and Order Granting in Part and
    Denying in Part Petitioner's Amended Petition for Post-
    Conviction Relief, Filed April 9, 2021" (Rule 40 Order),
    granting Chatman's petition for relief in part, finding Chatman
    received ineffective assistance of counsel in his direct appeal,
    and ordering a new appeal.       The Rule 40 Order also vacated the
    2004 judgments against Chatman in the two underlying criminal
    cases, and re-entered both judgments on March 31, 2022, so
    Chatman could "pursue new appeals" in those cases.            In this
    appeal, Chatman appeals from the (1) Rule 40 Order in CAAP-22-
    0000315 (Rule 40 Appeal); (2) "Judgment of Guilty Conviction and
    Sentence[,] Notice of Re-entry" (Re-entered Attempted Murder
    Judgment) in CAAP-XX-XXXXXXX (Attempted Murder Appeal); and (3)
    "Judgment of Guilty Conviction and Sentence[,] Notice of Re-
    entry" (Re-entered Witness Offenses Judgment)2 in CAAP-XX-XXXXXXX
    1     We consolidated CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX under CAAP-
    XX-XXXXXXX by a December 28, 2022 order. [22-135 dkt. 75]
    2     The 2022 Re-entered Witness Offenses Judgment reflects
    convictions for Bribery of a Witness (Count 1), Intimidation of a Witness
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    (Witness Offenses Appeal), all entered on March 31, 2022, by the
    Circuit Court of the First Circuit.3
    While Chatman raises multiple points of error (POEs)
    in the three appeals,4 we confine our review to Chatman's main
    contention that the Circuit Court erred in FOF/COLs 42, 44, and
    45, by granting him a new appeal instead of a new trial, as it
    is dispositive.     We hold that the Rule 40 Order was erroneous in
    part because the Circuit Court should have granted Chatman the
    requested relief of a new trial in the attempted murder case,
    rather than a new appeal.       Under the unique circumstances of
    this case, where the record reflects specific prejudice to
    Chatman's ability to appeal due to the missing material trial
    testimony of the State's child abuse expert, a new appeal on the
    same incomplete record is an inadequate remedy.
    (Count 2), and Extortion in the Second Degree (Count 3) in 1PC021002353.
    Chatman's extortion conviction in Count 3, however, was vacated on Chatman's
    2006 direct appeal due to merger. State v. Chatman, No. 26763, 
    2006 WL 2236740
    , at *35 (Haw. Aug. 3, 2006) (mem. op.) (2006 Chatman Opinion).
    3     The Honorable Matthew J. Viola presided over the Rule 40 hearing,
    entered the Rule 40 Order, and re-entered the judgments in the underlying
    cases.
    4     In the Rule 40 Appeal, CAAP-XX-XXXXXXX, Chatman: (1) challenges
    FOFs 11, 23, 24, 42, 44, and 45 as erroneous; (2) contends that while the
    Circuit Court "correctly" found Chatman's counsel was ineffective on direct
    appeal for failing to raise the issue of the missing transcript, the Circuit
    Court erred by ordering a new appeal based on the same, incomplete record;
    and (3) contends that while the Circuit Court "correctly" found that the
    missing 87 minutes of expert testimony were "material," the Circuit Court
    erroneously ordered a new appeal rather than a new trial.
    In both the Attempted Murder Appeal (CAAP-XX-XXXXXXX) and the
    Witness Offenses Appeal (CAAP-XX-XXXXXXX), Chatman raises identical POEs that
    the Circuit Court (1) erroneously denied Chatman's motion for a mistrial
    regarding Plaintiff-Appellee State of Hawai‘i's (State) child abuse expert
    Victoria Schneider M.D.'s (Dr. Schneider) testimony; (2) erroneously denied
    Chatman's motion for mistrial due to prosecutorial misconduct; and that (3)
    this court should grant Chatman a new trial due to the missing transcript of
    Dr. Schneider's testimony. In the Attempted Murder Appeal only, Chatman
    raises an additional POE, that the case should be dismissed based on State v.
    Obrero, 151 Hawai‘i 472, 
    517 P.3d 755
     (2022). We address Chatman's Obrero
    argument infra, and do not address the remaining POEs in light of our
    resolution.
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    I. BACKGROUND
    In the underlying criminal proceedings in FC-CR
    No. 02-1-0011 (Attempted Murder Case) and Cr. No. 02-1-2353
    (Witness Offenses Case), following a 2003 consolidated jury
    trial, Chatman was convicted of Attempted Murder in the Second
    Degree of his infant son in the Attempted Murder Case; and of
    bribery, intimidation, and extortion of a witness in Counts 1,
    2, and 3, against the mother of his infant son, in connection
    with her testimony for the Attempted Murder Case.          Chatman, 
    2006 WL 2236740
    , at *1-2.    While Chatman's extortion conviction was
    vacated in the 2006 Chatman Opinion on direct appeal, the
    remaining convictions were affirmed.       
    Id.
    In the instant appeal, Chatman, self-represented,
    filed his 2015 Motion for Correction or Modification of the
    Record (Motion for Correction) arguing that the trial record was
    missing Dr. Schneider's testimony on her slide show
    presentation, and that Chatman was prejudiced by his "inability
    to make substantive claims[ ] relating to Dr. Schneider's
    Powerpoint presentation, in any future post-conviction or habeas
    proceedings."   Chatman, 
    2019 WL 912118
    , * at 2.        The Circuit
    Court denied the Motion for Correction without a hearing.           
    Id.
    Chatman appealed to this court in 2016; we affirmed in 2018; the
    supreme court's 2019 Chatman Remand Order vacated in part,
    concluding that:
    Chatman has asserted a colorable claim that Dr. Schneider's
    missing trial testimony may have specifically prejudiced
    his appeal. On the issue of incomplete trial records, this
    court has previously stated that "[t]he general rule is
    that where the transcripts of a defendant's trial are
    incomplete because they omit portions of the trial
    proceedings, such omissions do not mandate reversal unless
    they specifically prejudice the defendant's appeal." State
    v. Kiese, 126 Hawai‘i 494, 508, 
    273 P.3d 1180
    , 1194 (2012).
    Id. at *2-3.
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    The 2019 Chatman Remand Order also set forth the
    following pertinent background for the missing trial testimony
    issue:
    On June 17, 2003, Dr. Victoria Schneider (Dr. Schneider), a
    pediatrician, was called by the State to testify as an
    expert on child abuse. After describing the injuries that
    the Minor suffered, Dr. Schneider asked if she could share
    a slide show presentation on shaken baby syndrome with the
    jury to explain how shaking could have caused the Minor's
    injuries. Defense Counsel objected. After examining the
    slides and concluding that they would not be misleading,
    the circuit court allowed Dr. Schneider to testify in
    conjunction with the slide presentation, and asked her to
    return the following morning on June 18, 2003 to begin her
    presentation. The court then adjourned for the day.
    The June 18, 2003 trial transcript in the Record on Appeal
    does not contain Dr. Schneider's testimony on the slide
    show presentation.5 Instead, the first page of the
    transcript begins with Defense Counsel's objection to Dr.
    Schneider's testimony. The trial transcript indicates
    Defense Counsel stated that Dr. Schneider "was rambling on
    5     This omission in the trial transcript contrasts with the HAJIS
    case summary in the Record on Appeal, which notes that on June 18, 2003, the
    following occurred:
    9:04 A.M. CASE CALLED IN PRESENCE OF COUNSEL, DPA/D.
    OYASATO, CA/C. KANAI AND DEFT ONLY RE: COURT'S INQUIRY OF
    STATE'S OFFER OF PROOF AS TO WHAT DR. SCHNEIDER'S OPINION
    WILL BE. COURT NOTED IT WAS NOT AWARE DOCTOR WAS ALSO THE
    TREATING PHYSICIAN.
    COURT'S RECORD MADE. DOCTOR WILL BE PROHIBITED FROM
    EXPRESSING AN OPINION AS TO THE CREDIBILITY OF THE MOTHER
    OR WHO MAY HAVE CAUSED INJURIES.
    9:21 A.M. JURY PRESENT; CASE CALLED; APPEARANCES NOTED.
    9:22-10:31 A.M. FURTHER TESTIMONY OF DR. SCHNEIDER.
    9:23-9:32 A.M. [SHAKEN BABY SYNDROME] SLIDE SHOW
    PRESENTATION PREPARED BY DR. SCHNEIDER.
    10:31 A.M. RECESS.
    10:49 A.M. RECONVENED W/COUNSEL & DEFT ONLY RE: DEFT'S
    OBJECTION TO WITNESS TESTIFYING AS TO THE "HISTORY"
    PROVIDED BY MOTHER AND DEFT'S FURTHER OBJECTION TO THE
    WITNESS "RAMBLING NARRATIVE" DURING THE SLIDE SHOW
    PRESENTATION. DEFENDANT'S ORAL MOTION FOR JUDGMENT OF
    ACQUITTAL - DENIED.
    10:55 A.M. JURY PRESENT.
    Id. at *1 n.3 (brackets in original).
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    and on, and it looked like a lecture [rather] than
    testimony in court." Defense Counsel therefore argued that
    "[Dr. Schneider's] rambling narrative had an undue
    prejudicial impact on the Defense. And for that reason, I
    would request a mistrial--in this area or in combination
    with other areas." The circuit court denied Chatman's
    motion for mistrial, but stated "your record is preserved."
    At that point, Defense Counsel began his cross-examination
    of Dr. Schneider.
    Id. at *1 (brackets and footnote in original).          The 2019 Chatman
    Remand Order noted that:     "while Defense Counsel made an oral
    motion for a mistrial following Dr. Schneider's testimony and
    the circuit court assured Chatman that 'your record is
    preserved,' the testimony which was objected to was not
    preserved[,]" and "[t]his omission may have specifically
    prejudiced Chatman's appeal."      Id. at *3 (citation omitted).
    The supreme court mandated a HRPP Rule 40 evidentiary hearing on
    Chatman's Motion for Correction, to "determine, pursuant to
    [Hawai‘i Rules of Appellate Procedure (HRAP)] Rule 10(e),6
    whether correction or modification of the record is
    appropriate."   Id. at *4 (footnote added).
    The record on remand reflects the Circuit Court
    conducted proceedings in 2019 and 2020, during which the parties
    6    HRAP Rule 10(e) provides in pertinent part:
    (e) Correction or modification of the record.
    (1) If any differences arise as to whether the record
    truly discloses what occurred in the court or agency
    appealed from, the differences shall be submitted to and
    settled by that court or agency and the record made to
    conform to the truth.
    (2) If anything material to any party is omitted from
    the record by error or accident or is misstated therein,
    corrections or modifications may be as follows:
    (A) by the stipulation of the parties; or
    (B) by the court or agency appealed from, either
    before or after the record is transmitted; or
    (C) by direction of the appellate court before
    which the case is pending, on proper suggestion or its own
    initiative.
    (3) All other questions as to the form and contents
    of the record shall be presented to the appellate court
    before which the case is pending.
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    attempted to re-create the record of the missing testimony.             On
    March 12, 2021, the court entered an "Order Re: Correction
    and/or Modification of the Record" (Order Correcting Record).
    This order stated that:
    the record of the trial proceedings held on June 18,
    2003 in State of Hawai‘i v. Anthony Chatman, FC-CR No.
    02-1-0011 and CR. No. 02-1-2353, shall be corrected
    and/or modified to include the following:
    a. On June 18, 2003, the case was called at 9:04
    a.m. Present at this time were [DPA], Defense
    [Counsel] and Defendant Anthony Chatman.
    b. Between 9:04 and 9:21 a.m., a conversation was
    had between the court and attorneys outside of
    the presence of the jury.
    c. At 9:21 a.m., the case was called in the
    presence of the jury as well as [DPA], Defense
    [Counsel] and Defendant Anthony Chatman.
    d. At 9:22 a.m., Dr. Victoria Schneider began
    testifying on direct examination as a witness
    for the State of Hawai‘i.
    e. Between 9:23 a.m. and 9:32 a.m., Dr.
    Schneider's testimony included a PowerPoint
    slide presentation.
    f. Dr. Schneider's PowerPoint slide presentation
    consisted of several slides that had been
    marked for identification on June 17, 2003, as
    State's Exhibit 66.
    g. Dr. Schneider's PowerPoint slide presentation
    included a presentation on shaken baby syndrome
    and included an animated demonstration of the
    shaking of an infant and injuries described as
    subdural hematoma and retinal hemorrhages.
    h. Dr. Schneider's PowerPoint slide presentation
    concluded at 9:32 a.m.
    i. Dr. Schneider's entire direct testimony ended
    at 10:31 a.m.
    j. During Dr. Schneider's direct examination on
    June 18, 2003, defense counsel made at least
    one objection to Dr. Schneider's testimony.
    The objection was that she was testifying by
    narrative. The objection was sustained by the
    court.
    Rule 40 Order, FOF/COL 23.
    Following the entry of the March 12, 2021 Order
    Correcting Record, Chatman was permitted to file his April 9,
    2021 Amended Rule 40 Petition, in which he argued that:           his
    counsel on direct appeal was ineffective for "fail[ing] to
    recognize the absence of more than one hour of expert testimony
    from the record on appeal, as well as the absence of the
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    objection to said testimony which formed one of the bases of
    [Chatman]'s motion for mistrial"; and that the corrected record
    still prejudiced Chatman's due process rights because the
    missing portions of the transcript were still unavailable.
    Chatman claimed that "[t]he omissions contained within the newly
    created record specifically prejudice[d]" Chatman, and requested
    relief in the form of a new trial.
    On November 30, 2021, the Circuit Court held a hearing
    on Chatman's Amended Rule 40 Petition, during which Chatman's
    counsel on direct appeal (Appellate Counsel)7 testified.             The
    Circuit Court's March 31, 2022 Rule 40 Order made the following
    pertinent FOF/COLs:
    11.   On February 22, 2019, the Supreme Court entered a
    Summary Disposition Order, vacating the ICA's judgment
    and the circuit court's order denying Petitioner's
    Motion for Correction. The Supreme Court remanded the
    case to the circuit court for a HRPP Rule 40
    evidentiary hearing on the Motion for Correction: "We
    remand the case to the circuit court for a HRPP Rule
    40 evidentiary hearing on Chatman's Motion for
    Correction, in which the circuit court should
    determine, pursuant to HRAP Rule 10(e), whether
    correction or modification of the record is
    appropriate."
    . . . .
    14.   On September 6, 2019, a hearing was held in which the
    State of Hawai'i stipulated that the missing portion
    of Dr. Schneider's testimony from the June 18, 2003
    trial transcript was material and was omitted from the
    record by error or accident.
    . . . .
    24.   Following Dr. Schneider's testimony at trial, [Trial
    Counsel] made an oral motion for a mistrial. The
    trial judge denied the motion, stating in part: "I
    must deny the motion for mistrial, but your record is
    preserved."
    . . . .
    42.   [Chatman]'s Appellate Counsel erred in omitting
    appealable issues in the Direct Appeal and therefore
    7      Appellate Counsel was not Chatman's trial defense counsel (Trial
    Counsel).
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    precluded a determination of those issues on their
    merits. A new trial would not be the appropriate
    remedy responsive to this error. Rather, the
    appropriate remedy for Appellate Counsel's ineffective
    assistance in the Direct Appeal is to allow [Chatman]
    an opportunity to assert the omitted appealable issues
    in a new appeal, where an appellate court can decide
    them on their merits. Id. at 394.
    . . . .
    44.   [Chatman] asserts that the record, as corrected or
    modified by the court's March 12, 2021 Order Re:
    Correction and/or Modification of the Record, is so
    incomplete that his ability to assert a potentially
    meritorious argument in a new appeal is specifically
    prejudiced. Whether the record on appeal, as
    corrected or modified, is so incomplete that it
    specifically prejudices [Chatman]'s ability to raise a
    potentially meritorious argument in a new appeal is an
    issue for an appellate court to determine in the new
    appeal.
    45.   The Amended Rule 40 Petition is granted with respect
    to [Chatman]'s request for post-conviction relief
    based on ineffective assistance of Appellate Counsel
    (ground 1); The Amended Rule 40 Petition is denied
    with respect to [Chatman]'s request for a new trial on
    the grounds that the modified and/or corrected record
    specifically prejudices his due process rights on
    appeal (ground 2.)
    46.   Pursuant to HRPP 40(g)(1), and based on the foregoing
    findings and conclusions that Appellate Counsel
    rendered ineffective assistance on the Direct Appeal
    and that a new appeal is the appropriate remedy, the
    court will enter separate orders in the underlying
    criminal cases vacating and reentering the judgments
    of conviction filed on July 19, 2004, to allow
    [Chatman] the opportunity to pursue new appeals in
    those matters.
    (Emphases added.)8      The Circuit Court concluded that a new
    appeal, rather than a new trial as Chatman requested, was "the
    appropriate remedy[.]"       FOF/COL 46.     To effectuate the new
    appeal remedy, the Circuit Court re-entered the July 19, 2004
    judgments of conviction in the Attempted Murder Case and the
    Witness Offenses Case so Chatman could pursue "new appeals" in
    these cases.      Id. Chatman timely appealed.
    8     Chatman challenges FOF/COLs 11, 23, 24, 42, 44 and 45 on appeal.
    FOF/COL 23 is quoted supra.
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    II. STANDARDS OF REVIEW
    "We consider a court's conclusions of law regarding a
    petition for post-conviction relief de novo[.]"           Grindling v.
    State, 144 Hawai‘i 444, 449, 
    445 P.3d 25
    , 30 (2019) (citing
    Fragiao v. State, 95 Hawai‘i 9, 15, 
    18 P.3d 871
    , 877 (2001)).             A
    COL "that presents mixed questions of fact and law is reviewed
    under the clearly erroneous standard[.]"          State v. Rodrigues,
    145 Hawai‘i 487, 494, 
    454 P.3d 428
    , 435 (2019) (citation
    omitted).
    III. DISCUSSION
    A. In the Rule 40 Appeal, the remedy of a new appeal
    rather than a new trial was erroneous where the
    missing material trial testimony of the State's expert
    witness specifically prejudiced Chatman's ability to
    appeal in the Attempted Murder Case.
    In the Rule 40 Appeal, Chatman asserts that in
    ordering a new appeal, the Circuit Court "essentially granted
    [Chatman] no remedy" because "[t]he record is still incomplete
    as there are still 87 minutes of missing expert testimony,
    arguments, and objections."9       Chatman argues that the Circuit
    Court should have concluded that the missing transcript mandated
    a new trial because the omission of the transcript specifically
    prejudiced Chatman's ability to appeal.
    The State argues that the Circuit Court correctly
    granted Chatman a new appeal rather than a new trial because
    Chatman failed "to make a reasonable attempt to reconstruct,
    modify, or supplement the missing portions of the record," and
    failed to "demonstrate specific prejudice."          The State relies on
    State v. Bates, 84 Hawai‘i 211, 217, 
    933 P.2d 48
    , 54 (1997) to
    support its argument that if an "entire transcript could not be
    9     Chatman's calculation that the "87 minutes" missing from the
    court record is the number of minutes that passed between the case being
    called at 9:04 a.m. and the end of Dr. Schneider's testimony at 10:31 a.m.,
    according to the court minutes.
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    prepared, the parties must show compliance with HRAP Rule 10(c)
    . . . or show that error was committed by the trial court."
    1. The State's argument based on State v.
    Bates and HRAP Rule 10(c) is without merit.
    Bates involved inaudible entries in trial transcripts,
    not missing material trial testimony as in this case, and it is
    inapposite.   Id. at 214, 
    933 P.2d at 51
    .       The Bates court held
    that where that defendant "made no attempt to reconstruct the
    record pursuant to HRAP 10(c)10 or correct or modify the record
    pursuant to HRAP 10(e)[,]" the defendant failed to demonstrate
    "specific prejudice by reason of inaudible entries in a trial
    transcript," and was "not entitled to a new trial."          
    Id. at 56
    ,
    
    933 P.2d at 219
     (footnote added).
    Here, the State's argument that Chatman had to comply
    with HRAP Rule 10(c) is without merit, where the supreme court's
    2019 Chatman Remand Order directed the Circuit Court to
    "determine, pursuant to HRAP Rule 10(e), whether correction or
    modification of the record is appropriate."        
    2019 WL 912118
    , at
    *4 (emphasis added).    The Circuit Court did so, and entered the
    March 12, 2021 Order Correcting Record, the contents of which is
    set forth in FOF 23 in the Rule 40 Order, quoted supra.
    Assuming arguendo HRAP Rule 10(c) applied to these proceedings
    10   HRAP Rule 10(c) provides:
    If the reporter refuses, becomes unable, or fails to
    transcribe all or any portion of the evidence or oral
    proceedings after proper request, the party may (i) request
    that transcription of the reporter's notes be submitted to
    another reporter for transcription where feasible; or (ii)
    prepare a statement of the evidence or proceedings from the
    best available means, including the party's recollection or
    uncertified transcripts or reporter's notes. The statement
    shall be served on the opposing party(ies), who may serve
    objections or propose amendments thereto within 10 days
    after service. Thereupon the statement and any objections
    or proposed amendments shall be submitted to the court or
    agency appealed from for settlement and approval and as
    settled and approved shall be included by the clerk of the
    court appealed from in the record on appeal.
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    on remand, the extensive attempts by the Circuit Court and the
    parties to recreate the missing record, culminating in the
    Circuit Court's March 12, 2021 Order Correcting Record,
    established Rule 10(c) compliance.    The State's arguments are
    unavailing.
    2. The record reflects that, under the
    unique circumstances of this case, where
    Chatman's ability to appeal was prejudiced
    due to the missing material trial testimony
    of the State's child abuse expert, a new
    appeal on the same incomplete record is an
    ineffective remedy.
    Chatman argues that the Circuit Court should have
    found "specific prejudice" under Kiese, because "the record
    remains incomplete" and an appellate court "cannot determine
    whether the lower court committed reversible error" during the
    missing portion of Dr. Schneider's testimony.     (Brackets and
    emphasis omitted.)    In this regard, Chatman challenges FOF/COLs
    42, 44, and 45, which stated that the remedy is a new appeal,
    because "[w]hether the record on appeal, as corrected or
    modified, is so incomplete that it specifically prejudices
    [Chatman]'s ability to raise a potentially meritorious argument
    in a new appeal is an issue for an appellate court to determine
    in the new appeal."   Chatman's argument that specific prejudice
    warranting a new trial was already established on the record
    before the Circuit Court, is persuasive.
    "'The general rule is that where the transcripts of a
    defendant's trial are incomplete because they omit portions of
    the trial proceedings, such omissions do not mandate reversal
    unless they specifically prejudice the defendant's appeal.'"
    Kiese, 126 Hawai‘i at 508, 
    273 P.3d at 1194
     (brackets omitted)
    (quoting State v. Ganotisi, 79 Hawai‘i 342, 343, 
    902 P.2d 977
    ,
    978 (App. 1995)).    Both Kiese and Ganotisi found no specific
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    prejudice to the defendants' appeals for inaudible, or
    indiscernible responses in transcripts,11 and did not involve
    testimony that is completely missing from the transcript, as
    here.
    Here, the June 18, 2003 transcript omitted one hour
    and nine minutes of Dr. Schneider's testimony, from 9:22 a.m. to
    10:31 a.m., that the Circuit Court determined was "material" in
    FOF/COL 14.12    The materiality of Dr. Schneider's testimony as
    the State's child abuse expert witness in an attempted murder
    prosecution involving Chatman's infant son, is plainly evident.
    The missing testimony is the entire further direct examination
    of Dr. Schneider, which included Dr. Schneider's PowerPoint
    presentation on shaken baby syndrome that drew "at least one"
    defense objection and a defense motion for a mistrial.             FOF/COL
    23(g), (j), and 24.      While the Order Correcting Record attempted
    to fill the void of the missing testimony, it is an inadequate
    11  In Kiese, the court concluded no specific prejudice existed
    because while the trial transcript contained numerous inaudible responses,
    and the court, prosecutor, and defense attorney had noted for the record that
    "the [witness] was nodding, shaking his head, or shrugging"; there were no
    objections; and that the parties' interpretations of the witness's testimony
    and "what was captured for the record at the trial level was understood by
    all." 126 Hawai‘i at 508, 
    273 P.3d at 1194
    .
    Ganotisi is also distinguishable from the instant case. In
    Ganotisi, the defendant argued on appeal that he was denied his right to due
    process because the 368 notations of inaudible or indiscernible responses in
    the 325 pages of transcript of his two-day trial rendered his appellate
    counsel "unable to accurately review the trial proceedings to determine
    whether prejudicial error occurred." Ganotisi, 79 Hawai‘i at 343, 902 P.2d at
    978. The defendant's trial was recorded by video camera, and the videotape
    of the trial was transcribed by a court reporter; both the transcripts and a
    copy of the video recording were part of the record on appeal. Id. The
    supreme court determined that while there were omissions in the transcript,
    it could still discern from the remainder of the transcript and the video
    recording as to why the challenged evidence was admitted and why the court
    sustained the state's objection. Id. at 344-46; 902 P.2d at 979-81.
    12    Unchallenged FOFs are binding on the parties and on appeal.
    State v. Rodrigues, 145 Hawai‘i 487, 494, 
    454 P.3d 428
    , 435 (2019) (quoting
    Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205, 227, 
    140 P.3d 985
    , 1007
    (2006)).
    13
    NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    substitute for a transcript necessary for appellate counsel to
    properly challenge an issue, and for an appellate court to
    review the same.     "The burden is upon appellant in an appeal to
    show error by reference to matters in the record, and he or she
    has the responsibility of providing an adequate transcript."
    Bettencourt v. Bettencourt, 80 Hawai‘i 225, 230, 
    909 P.2d 553
    ,
    558 (1995) (brackets omitted) (quoting Union Bldg. Materials
    Corp. v. The Kakaako Corp., 
    5 Haw. App. 146
    , 151, 
    682 P.2d 82
    ,
    87 (1984)); see HRAP Rule 10(b)(1) (requiring the preparation of
    a transcript for appellate review); HRAP Rule 28(b)(4)(ii) and
    (iii) (requiring appellant identify where in the record error
    occurred, and how it was preserved).         Chatman's ability to
    appeal any of his missing objection or objections to Dr.
    Schneider's missing testimony and the motion for mistrial
    stemming from the same testimony, are clearly prejudiced.             The
    remedy of a new appeal does not rectify the prejudice to
    Chatman's ability to appeal where the recording of the missing
    trial testimony is still missing and unavailable.13           We conclude
    that under the unique circumstances of this case, Chatman
    demonstrated specific prejudice to his ability to appeal due to
    missing material trial testimony of Dr. Schneider, warranting a
    new trial.    See Kiese, 126 Hawai‘i at 508, 
    273 P.3d at 1194
    .           The
    Circuit Court erred in granting Chatman a new appeal instead of
    a new trial in FOF/COLs 42, 44, and 45.         See Rodrigues, 145
    Hawai‘i at 494, 454 P.3d at 435.
    13    We take judicial notice of the July 18, 2022 "Certificate of No
    Transcript" filed by the Supervising Court Reporter of the Circuit Court in
    CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, which indicates that the transcripts of
    the June 18, 2003 trial proceedings are "not available as the requested
    hearing dates are (1) outside the [Court Reporter's Office]'s records
    retention period of 10 years so the Court Reporters Office has no ability to
    obtain them and/or (2) the Court Reporters Office has no current contact
    information for each former Official Court Reporter[.]" See Hawai‘i Rules of
    Evidence Rule 201; State v. Kwong, 149 Hawai‘i 106, 113-14, 
    482 P.3d 1067
    ,
    1074-75 (2021).
    14
    NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    B. In the Attempted Murder Appeal, the 2022 Re-
    entered Attempted Murder Judgment and the
    original 2004 judgment are vacated.
    We also address Chatman's POE in the Attempted Murder
    appeal that the Complaint should be dismissed under Obrero, in
    which the supreme court held that charging a defendant with a
    felony by complaint, rather through an indictment or
    information, violates Hawaii Revised Statutes (HRS) § 801-1
    (2014).   151 Hawai‘i at 478, 482, 517 P.3d at 761, 765.     Chatman
    contends that the Complaint should be dismissed because he was
    "charged with Attempted Murder in the Second Degree by
    Complaint," and not by grand jury indictment.     The State argues,
    among other things, that Obrero does not apply because Chatman
    raises his HRS § 801-1 challenge for the "first time on
    appeal[,]" and "does not allege that he was prejudiced by the
    complaint" nor that "the complaint cannot be construed to charge
    a crime."   The State's argument has merit.
    In Obrero, the supreme court held that had the
    defendant challenged the complaint and the State's failure to
    comply with HRS § 801-1 for the first time on appeal, the
    supreme court would have "presume[d] the validity of the
    complaint against him and would not [have] reverse[d] his
    conviction absent a showing that the complaint prejudiced him or
    could not be construed to charge a crime."     Id. at 478 n.11, 517
    P.3d at 761 n.11.
    Here, the record reflects that Chatman did not
    challenge the Complaint or the State's compliance with HRS §
    801-1 below.   Nor does Chatman argue on appeal how the Complaint
    "prejudiced him or could not be construed to charge a crime."
    Thus, we "presume the validity" of the Complaint against Chatman
    and reject Chatman's challenge.    See id.
    In light of the resolution of the Rule 40 Appeal
    supra, that a new trial is the appropriate remedy in the
    15
    NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    Attempted Murder Case, we vacate the 2022 Re-entered Attempted
    Murder Judgment and the earlier 2004 Attempted Murder Judgment,
    and order a new trial on the Attempted Murder Case.
    C.   In the Witness Offenses Appeal, the 2022 Re-
    Entered Witness Offenses Judgment is vacated.
    The missing trial testimony of child abuse expert, Dr.
    Schneider, warrants the relief of a new trial in the Attempted
    Murder Case, but not for the Witness Offenses Case.          Nothing in
    the Rule 40 Order indicates why relief was appropriate or
    warranted in the Witness Offenses Case.        The Circuit Court erred
    by entering the 2022 Re-Entered Witness Offenses Judgment and
    ordering a new appeal in that case.       See Rodrigues, 145 Hawai‘i
    at 494, 454 P.3d at 435.     We thus vacate the Re-entered Witness
    Offenses Judgment, and the earlier 2004 Witness Offenses
    Judgment still stands, with respect to Counts 1 and 2.14
    IV. CONCLUSION
    For the foregoing reasons, with respect to the
    following orders and judgments entered by the Circuit Court of
    the First Circuit:
    (1) in CAAP-XX-XXXXXXX, the Rule 40 Appeal, we affirm
    in part and vacate in part the March 31, 2022 "Findings of
    Fact and Conclusions of Law and Order Granting in Part and
    Denying in Part Petitioner's Amended Petition for Post-
    Conviction Relief, Filed April 9, 2021";
    (2) in CAAP-XX-XXXXXXX, the Attempted Murder Appeal,
    the March 31, 2022 "Judgment of Guilty Conviction and
    Sentence[,] Notice of Re-entry" and the earlier July 19,
    2004 "Judgment of Guilty Conviction and Sentence" are
    vacated, and we remand for a new trial;
    (3) in CAAP-XX-XXXXXXX, the Witness Offenses Appeal,
    the March 31, 2022 "Judgment of Guilty Conviction and
    14   See footnote 2 supra, regarding disposition of Count 3.
    16
    NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
    Sentence[,] Notice of Re-entry" is vacated, and the earlier
    July 19, 2004 "Judgment of Guilty Conviction and Sentence"
    still stands.
    DATED:     Honolulu, Hawai‘i, January 30, 2024.
    On the briefs:
    /s/ Katherine G. Leonard
    George A. Burke,
    Acting Chief Judge
    Attorney for Petitioner-
    Appellant in
    /s/ Keith K. Hiraoka
    CAAP-XX-XXXXXXX
    Associate Judge
    Randal I. Shintani,
    /s/ Karen T. Nakasone
    Attorney for Defendant-
    Associate Judge
    Appellant in CAAP-XX-XXXXXXX
    and CAAP-XX-XXXXXXX
    Stephen K. Tsushima,
    Deputy Prosecuting Attorney
    for Respondent-Plaintiff-
    Appellee
    17
    

Document Info

Docket Number: CAAP-22-0000315

Filed Date: 1/30/2024

Precedential Status: Precedential

Modified Date: 1/30/2024