State v. Acacio.

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-13-0000132
15-JUN-2017
08:18 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
RAINIER ACACIO,
Petitioner/Defendant-Appellant.
SCWC-13-0000132
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000132; CR. NO. 12-1-0049)
JUNE 15, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
I. INTRODUCTION
Respondent/Plaintiff-Appellee the State of Hawai#i (the
State) charged Petitioner/Defendant-Appellant Rainier Acacio
(Acacio) with offenses arising from a domestic dispute between
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Acacio and his ex-girlfriend, the complaining witness (CW). The
jury found Acacio guilty of one of the offenses - terroristic
threatening in the first degree - and the Circuit Court of the
First Circuit (circuit court) entered a judgment of conviction
and probation sentence, which the Intermediate Court of Appeals
(ICA) affirmed.
In his application for writ of certiorari, Acacio takes
issue, inter alia, with the circuit court’s decision to limit the
CW’s testimony on cross-examination. In brief, defense counsel
asked the CW questions regarding her knowledge of Acacio’s
immigration status and whether the CW knew that Acacio could face
deportation if he was arrested. The State objected. Despite
defense counsel’s argument that this line of questioning was
imperative in order to establish the CW’s bias or motive, the
circuit court sustained the State’s objection and struck the
questions and responses from the record.
We conclude that Acacio was deprived of his right to
confront and cross-examine the complaining witness as to her bias
and motive. Testimony derived from the CW’s answers to the
immigration questions might have illuminated the CW’s motive for
calling the police, and ultimately had the potential to affect
her credibility as a witness. Accordingly, we vacate the ICA’s
September 9, 2016 judgment on appeal, vacate the circuit court’s
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
February 4, 2013 judgment of conviction and probation sentence,
and remand this case to the circuit court for a new trial.
II. BACKGROUND
A. Circuit Court Proceedings1
On January 11, 2012, the State charged Acacio with: 1)
one count of terroristic threatening in the first degree, in
violation of Hawai#i Revised Statutes (HRS) § 707-716(1)(e), for
threatening “to cause bodily injury to [the CW], with the use of
a dangerous instrument, in reckless disregard of the risk of
terrorizing [the CW]”; and 2) one count of abuse of family or
household members, in violation of HRS § 709-906(1) and (5), for
“intentionally, knowingly, or recklessly physically abus[ing]
[the CW.]”
The jury trial began on November 16, 2012. On direct
examination, the CW testified that Acacio was her live-in
boyfriend just prior to the time of the January 1, 2012 incident,
and that they had been together for almost two and a half years.
The CW explained that in December of 2011, she broke up with
Acacio, but that he continued to live in her house until the
incident on January 1, 2012.
The CW gave the following testimony about the incident
that led to Acacio’s arrest:
1
The Honorable Edward H. Kubo, Jr. presided.
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
On the night of December 31, 2011, the CW’s family had
a New Year’s party at their house. The CW was outside, enjoying
the party with her family, while Acacio was inside the house.
Shortly after midnight, the CW received a phone call from Acacio,
and they exchanged New Year’s greetings before she hung up.
Soon after the phone call, the CW saw Acacio exit the house and
she entered the house, went to her bedroom, and started preparing
for bed. As she was doing this, Acacio came into the bedroom,
closed the door, and said that he wanted to fix their
relationship. The CW responded that their relationship was over;
at this point, Acacio became mad and emotional and said that he
would kill himself. The CW responded, “go ahead, it’s not my
fault,” and Acacio left the bedroom and returned holding a
kitchen knife. Acacio pointed the knife at himself and kept
repeating that he was going to kill himself. Acacio then
“changed his mind,” pointed the knife at the CW, and started
saying, “I will kill you.” The CW knocked the knife out of
Acacio’s hand, and Acacio then grabbed her by the face and
punched her in the stomach. When Acacio turned around to grab
the knife, the CW locked herself in the bathroom and called 911.
On cross-examination, the deputy public defender (DPD)
elicited the following testimony from the CW:
[DPD:] When you called 911, you told Rainier you were
calling 911; right?
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[CW:] Yes.
[DPD:] You told him to grab your things?
[CW:] And leave the house.
[DPD:] And leave, right, leave me alone?
[CW:] Yes.
[DPD:] Leave my family alone?
[CW:] Yes.
[DPD:] But he didn’t leave; right?
[CW:] Yes, ma’am.
[DPD:] And when he didn’t leave, you got upset?
[CW:] Excuse me?
[DPD:] When he didn’t listen to you when you told him to
leave, when he stayed there, you got upset?
[CW:] Yes, ma’am.
[DPD:] Because you had already been broken up with him for
two weeks; right?
[CW:] Yes, ma’am.
[DPD:] He was still living in the house?
[CW:] Yes, ma’am.
[DPD:] You wanted him out of the house?
[CW:] Yes, ma’am.
[DPD:] He was supposed to be looking for a place; right?
[CW:] Yes, ma’am.
[DPD:] You didn’t think he was actually looking for a place?
[CW:] He told me that he’s looking for a place and he asking
for a time to look for a place.
[DPD:] But you didn’t believe he was doing that; right?
[CW:] No, I don’t believe.
[DPD:] So that made you upset, too; right?
[CW:] Yes.
. . . .
[DPD:] But you were upset he’s still there?
[CW:] Yes.
[DPD:] And that he won’t go away?
[CW:] Yes.
[DPD:] He won’t get out of the house?
[CW:] Yes.
[DPD:] And you know that Rainier is not a citizen of the
United States; right?
[CW:] Yes.
[DPD:] You know that if he gets arrested he can get sent
back to the Philippines; right?
[CW:] Yes.
[Deputy Prosecuting Attorney:] Objection.
THE COURT: Objection is sustained. The jury is advised that
immigration status has nothing to do with these charges.
The jury is to determine the guilt or innocence as to Counts
1 and 2 and I’m instructing you to disregard any mention or
any comments concerning the defendant’s immigration status.
. . . .
[DPD:] But you wanted him out of the house?
[CW:] Yes, ma’am.
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[DPD:] Out of your life?
[CW:] Yes, ma’am.
[DPD] And you knew if he got arrested he would leave?
[CW:] Yes, ma’am.
(Emphases added.)
After the jury was excused for the day, the DPD
explained why she questioned the CW about her knowledge of
Acacio’s immigration status:
[DPD:] Thank you, Your Honor. With respect to the State’s
objection to my questioning regarding my client’s –-
THE COURT: Immigration status.
[DPD:] –- status, yes, Your Honor, it’s the defense’s
position that that goes to bias, interest, motive,
specifically the motive to fabricate. I don’t think that –-
I mean, I think it’s clear from my voir dire that part of
our defense is that she fabricated at least certain portions
of this. Why she fabricated or the motive involved would be
highly relevant.
That was the only reason why that question was posed
to the witness, simply to establish she was aware of that
and that she knew there would be consequences which would
have substantiated a motive, and that was why I asked the
question. In fact, the question that I was objected to,
which was two questions to it, that was the only question I
was going to ask and nothing further.
THE COURT: I understand, and I’m not saying it was done in
bad faith, I understand your reasons and rationale for doing
that. However, on the other side of the coin, penalty and
punishment shall not be considered by the jury and
deportation of a person is a form of punishment. And I –-
and under the facts and circumstances of this case, I feel
that even notwithstanding your good faith in breaching the
topic, that the prejudicial effect substantially far
outweighs the probative value and so I sustained the
objection. But, again, I find that you had a good faith
basis for the question.
On the next court date, and before the jury was brought
in, the DPD once again clarified her stance on the immigration
issue:
[DPD:] Yes, Your Honor. With respect to the objection that
I made at the end of our last –- before our last recess,
which was specifically my questions regarding my client’s
immigration status, I just also wanted to clarify for the
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
record that I had asked –- I’m sorry –- asked the
complaining witness if she was aware of my client’s status.
She had indicated yes. I then asked if she was aware of the
consequences of him being arrested, where there was the
objection and it was sustained.
But I wanted to place on the record that I have a
good-faith basis to believe that she would be able to
respond in the affirmative due to the fact she is not a
citizen as well. So she would be aware of the consequences
of someone being arrested and not being a citizen.
Additionally, although I did not request it before, I
think given the fact that she may be recalled, I’d ask the
Court to consider allowing the question but doing a limiting
instruction to the jury which would address the prejudice
that the Court referenced, which is that it goes more to
penalty or punishment as opposed to motive and credibility.
I believe that if the jury was instructed that they could
only consider it for the limited purpose of determining the
complaining witness’ credibility and her motive, that could
address any of the prejudice issues.
THE COURT: I understand the defendant’s concern. The Court
has done a balancing act, and this Court finds that even
though it may be relevant as far as 609 or bias or motive
for interest, or whatever theory you may wish to blame this
on, this Court still believes that the prejudicial offense
still outweighs the probative value of that question,
particularly in light of the fact that penalty or punishment
would be now front and center for our jury’s consideration.
And I don’t think that would be proper, but your point is
well taken.
[DPD:] And the Court does not believe that that could be
cured through a limiting instruction?
THE COURT: No, I don’t think that a limiting instruction
would fix that, especially in light of the fact that you
would not –- you would also be seeking to get that same
information out about the complaining witness herself, which
is, I feel, even further outside the potential circle.
[DPD:] Actually, Your Honor, to clarify, I didn’t intend on
asking the complaining witness that question about her
status. But my good-faith basis belief that she knew about
the consequences was based on the information that I
received that she is not a citizen, but I was not going to
ask her about that.
THE COURT: Well, the Court would appreciate that. But the
Court still feels that this –- the balancing of the interest
falls in favor of exclusion of that question.
[DPD:] Okay.
Acacio testified that he and the CW had not been
together as a couple for about two weeks before the New Year’s
celebration and that, after midnight on January 1, 2012, he did
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
approach the CW in the bedroom to talk to her about their
relationship. Acacio testified that the CW appeared angry and
told him, “[w]e don’t need to talk anything out. We’re done.”
Acacio explained that he felt hurt and that he retrieved a knife
from the kitchen and returned to the bedroom “to show her that I
will kill myself.” Acacio testified that he never pointed the
knife at the CW.
On November 21, 2012, the jury found Acacio guilty of
terroristic threatening in the first degree and not guilty of
abuse of family or household members. On February 4, 2013, the
circuit court entered a judgment of conviction and probation
sentence, which sentenced Acacio to five years of probation.
B. ICA Proceedings
On appeal,2 Acacio argued that the circuit court erred
in precluding Acacio from cross-examining the CW on whether she
was aware of his immigration status. According to Acacio, his
immigration status was relevant because it established the CW’s
“bias, interest and motive to fabricate her story.” As a result,
Acacio claimed that the circuit court violated his
“constitutional right to confront witnesses via cross-
2
Acacio raised two issues on appeal before the ICA, the second relating
to an undisputed Hawai#i Rules of Penal Procedure Rule 16 violation. Because
our resolution of the first issue is dispositive of the second, we do not
address it.
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
examination.”
In response, the State argued that the jury had “ample
information” as to the CW’s motive without receiving evidence of
Acacio’s immigration status. As such, the State claimed that
because “the constitutionally required threshold level of
inquiry” was afforded Acacio, the circuit court did not err in
examining the evidence under Hawai#i Rules of Evidence (HRE) Rule
403 and concluding that it was more prejudicial than probative.
The State asserted that evidence of the CW’s knowledge of
Acacio’s immigration status was more prejudicial than probative
because questions regarding a defendant’s immigration status
appeal to the trier of fact’s passion and prejudice.
On July 29, 2016, the ICA entered a summary
disposition order (SDO), which affirmed the circuit court’s
judgment of conviction and sentence. State v. Acacio, No. CAAP-
XX-XXXXXXX, 2016 WL 4078838, at *1 (Haw. Ct. App. July 29, 2016).
As to the issue of Acacio’s immigration status, the ICA concluded
that “Acacio was afforded a level of inquiry on cross-examination
sufficient to satisfy the confrontation clause of the Sixth
Amendment to the U.S. Constitution.” Id. at *1. In reaching
this conclusion, the ICA explained that the circuit court “does
not abuse its discretion in excluding evidence tending to impeach
a witness ‘as long as the jury has in its possession sufficient
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
information to appraise the biases and motivations of the
witness.’” Id. (quoting United States v. Easter, 66 F.3d 1018,
1022-23 (9th Cir. 1995)). The ICA then provided the following
analysis:
In the instant case, although the Circuit Court did
not allow Acacio to cross-examine the CW specifically
regarding her knowledge of his immigration status, the
Circuit Court did allow Acacio to cross-examine the CW
concerning her general understanding that if Acacio got
arrested, he would leave their shared residence. That is,
the Circuit Court permitted Acacio to establish through the
CW’s testimony that she wanted Acacio out of the house;
that, if he was arrested, he would leave; that she was angry
that Acacio remained in the house after she asked him to
leave; and that she had been angry shortly before she spoke
to police officers. Each of these topics relates to the
CW’s alleged bias or motive to lie. Thus, the Circuit Court
complied with the Sixth Amendment and provided Acacio with
ample opportunity to cross-examine the CW to demonstrate her
bias or motive to lie. See Levell, 128 Hawai#i at 40, 282
P.3d at 582 (citing Balisbasana [sic], 83 at 114, 924 P.2d
at 1220).
Because Acacio was afforded the threshold level of
inquiry under the confrontation clause, the Circuit Court
was then permitted to exercise its discretion under HRE Rule
403 and balance the prejudicial effect against the probative
value of exposing the jury to evidence that Acacio’s arrest
could result in his deportation because he was not a
citizen. We conclude that the Circuit Court did not abuse
its discretion in excluding the proffered evidence. The
probative value of the proffered evidence to show the CW’s
motive and bias to testify falsely was attenuated and weak.
The CW’s knowledge of the potential deportation consequences
of her testifying falsely did not show or provide a
persuasive explanation for why she would testify falsely.
In any event, the proffered evidence was cumulative of
evidence permitted by the Circuit Court - that the CW knew
that Acacio’s arrest would require him to leave her house.
On the other hand, as the Circuit Court noted, questions
concerning the penalty or punishment a defendant may face
are not proper subjects for the jury to consider. In
addition, a jury’s verdict cannot be based on sympathy for
the defendant. The proffered evidence created a substantial
risk that the jury would be unduly influenced or distracted
by concerns that a finding of guilt would lead to Acacio’s
deportation - an improper subject for the jury to consider.
As such, the Circuit Court did not abuse its discretion in
concluding that the prejudicial effect of the excluded
evidence substantially outweighed its probative value.
Therefore, the first point of error fails.
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Id. at *2.
On September 9, 2016, the ICA entered a judgment on
appeal affirming the circuit court’s February 4, 2013 judgment of
conviction and probation sentence.
III. STANDARDS OF REVIEW
A. Admissibility of Evidence
As a general rule, [the appellate] court reviews evidentiary
rulings for abuse of discretion. Kealoha v. County of
Hawai#i, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993).
However, when there can only be one correct answer to the
admissibility question, or when reviewing questions of
relevance under Hawai#i Rules of Evidence (HRE) Rules 401
and 402, [the appellate] court applies the right/wrong
standard of review. Id. at 319, 844 P.2d at 676; State v.
White, 92 Hawai#i 192, 204-05, 990 P.2d 90, 102-03 (1999).
Moyle v. Y&Y Hyup Shin, Corp., 118 Hawai#i 385, 391, 191 P.3d
1062, 1068 (2008) (brackets omitted) (citing Kamaka v. Goodsill
Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 176 P.3d 91, 103
(2008)).
“The trial court’s determination that the proffered
evidence is probative of bias, interest or motive is reviewed
under the right/wrong standard.” State v. Balisbisana, 83
Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996) (citing State v.
Kupihea, 80 Hawai#i 307, 314, 909 P.2d 1122, 1129 (1996)).
B. Confronting Adverse Witnesses
Violation of the constitutional right to confront adverse
witnesses is subject to the harmless beyond a reasonable
doubt standard. In applying the harmless beyond a
reasonable doubt standard the court is required to examine
the record and determine whether there is a reasonable
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
possibility that the error complained of might have
contributed to the conviction.
State v. Pond, 118 Hawai#i 452, 461, 193 P.3d 368, 377 (2008)
(citing Balisbisana, 83 Hawai#i at 113-14, 924 P.2d at 1219-20).
IV. DISCUSSION
Although Acacio raises three issues in his application
for writ of certiorari, we do not address all three as we find
his first issue dispositive: whether the circuit court erred in
precluding Acacio from cross-examining the CW as to her knowledge
of his immigration status. We agree with Acacio’s argument as to
this issue and hold that the ICA erred when it held that the
circuit court did not err in preventing Acacio from pursuing this
line of questioning.
A. The ICA erred in affirming the circuit court’s decision to
prohibit the defense from questioning the CW as to her
knowledge of Acacio’s immigration status.
“An accused’s right to demonstrate the bias or motive
of prosecution witnesses is protected by the sixth amendment to
the United States Constitution, which guarantees an accused,
inter alia, the right ‘to be confronted with the witnesses
against him [or her].’” Balisbisana, 83 Hawai#i at 115, 924 P.2d
at 1221. “Indeed, the main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination[,] . . . [and] the exposure of a witness’
motivation in testifying is a proper and important function of
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the constitutionally protected right of cross examination.” Id.
(alteration in original) (quoting Delaware v. Van Arsdall, 475
U.S. 673, 678-79 (1986)). Additionally, HRE Rule 609.1(a) (1993)
provides that the “credibility of a witness may be attacked by
evidence of bias, interest, or motive.” This court has
established that “bias, interest, or motive is always relevant
under HRE Rule 609.1.” State v. Levell, 128 Hawai#i 34, 40, 282
P.3d 576, 582 (2012) (brackets omitted) (quoting State v.
Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987)).
When determining whether a defendant has been afforded
his constitutional right to demonstrate bias or motive on the
part of the complaining witness, the appropriate inquiry “is
whether the jury had sufficient information from which to make an
informed appraisal of [the complaining witness’s] motives and
bias[.]” Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222; see
also Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[T]he
appropriate inquiry is whether the trier of fact had sufficient
information from which to make an informed appraisal of the
witness’s motives and bias.”).
Once this step has been satisfied, the court may then
consider whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. See
Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[E]vidence of
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
witness bias is relevant, and . . . the trial court’s discretion
to exclude evidence under HRE Rule 403 only becomes operative
after the threshold level of inquiry under the confrontation
clause has been afforded.”). As such, the second step is not
triggered until the defendant is afforded the threshold level of
inquiry under the confrontation clause; once this occurs, the
trial court may conduct a balancing test to weigh the probative
value of any additional motive evidence against its potential for
undue prejudice. Id. at 39, 282 P.3d at 681 (“[T]he trial
court’s discretion becomes operative ‘only after the
constitutionally required threshold level of inquiry has been
afforded the defendant.’” (quoting Balisbisana, 83 Hawai#i at
114, 924 P.2d at 1220)).
In the present case, the ICA concluded under the first
step that Acacio’s right to confrontation was not violated
because the jury had sufficient information to make an informed
appraisal of the CW’s motive. Acacio, 2016 WL 4078838, at *2.
The ICA explained that, although the circuit court did not allow
Acacio to cross-examine the CW about her knowledge of Acacio’s
immigration status, the circuit court did allow cross-examination
as to the CW’s “general understanding that if Acacio got
arrested, he would leave their shared residence.” Id. Then,
under the second step, the ICA conducted a balancing test and
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
concluded that the “probative value of the proffered evidence to
show the CW’s motive and bias to testify falsely was attenuated
and weak,” while the potential for prejudice was much stronger.
Id.
For the following reasons, we conclude that the ICA
erred under both steps of its analysis.
1. Acacio was not afforded the threshold level of
inquiry under the confrontation clause because the
jury did not have sufficient information to
evaluate the CW’s motive.
The ICA erred under the first step of this test when it
concluded that the circuit court provided Acacio “ample
opportunity [under the Sixth Amendment] to cross-examine the CW
to demonstrate her bias or motive to lie.” Acacio, at *2. This
court has considered variations of this issue in several cases
and has clearly stated that the trier of fact must have
sufficient information from which to make an informed appraisal
of the complaining witness’s motives and bias.
For example, in Balisbisana, the defendant was charged
with abuse of a family or household member. 83 Hawai#i at 111,
924 P.2d at 1217. At trial, the family court excluded reference
to the complaining witness’s conviction for harassing the
defendant, and the defendant was subsequently convicted. Id. at
113, 924 P.2d at 1219. The defendant appealed and argued that
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the circuit court’s exclusion of the complaining witness’s
conviction violated his right to confront the witness and expose
evidence of her motive for bringing false charges against him.
Id. at 113-14, 924 P.2d at 1219-20. This court agreed with the
defendant, and vacated his conviction. Id. at 116-17, 924 P.2d
at 1222-23.
In coming to this conclusion, this court explained that
“[t]he appropriate inquiry, therefore, is whether the jury had
sufficient information from which to make an informed appraisal
of [the complaining witness’s] motives and bias, absent evidence
of her conviction for harassing [the defendant].” Id. at 116,
924 P.2d at 1222. This court noted that the “trial court
prohibited all inquiry into [the complaining witness’s]
conviction for harassing [the defendant]” and that a “reasonable
jury might have received a significantly different impression of
[the complaining witness’s] credibility had [the defendant’s]
counsel been permitted to pursue his proposed line of cross-
examination.” Id. As such, this court held that the “trial
court abused its discretion in excluding evidence of [the
complaining witness’s] conviction from which the jury could have
inferred that [the complaining witness] had a motive to bring
false charges against [the defendant] and give false testimony at
trial.” Id.
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Likewise, in State v. Marcos, 106 Hawai#i 116, 102 P.3d
360 (2004), the defendant, who was charged with and convicted of
abuse of a family or household member, was not allowed to cross-
examine the complaining witness about the pending family court
case concerning the custody of their child. On appeal, the
defendant argued that the complaining witness had a motive to
fabricate her allegations against him, and that his right to
cross-examine the complaining witness to demonstrate her motive
was violated. Id. at 117, 102 P.3d at 361.
This court agreed with the defendant and concluded that
he “had the right on cross examination to establish bias or
prejudice.” Id. at 122, 102 P.3d at 366. Citing to Balisbisana,
this court reiterated that “the jurors were entitled to have the
benefit of the defense theory before them so that they could make
an informed judgment as to the weight to place on [the
complaining witness’s] testimony which provided a crucial link in
the proof.” Id. As such, this court held that the defendant’s
right of confrontation, as guaranteed by the United States and
Hawai#i Constitutions, was violated. Id.
More recently, in Levell, the defendant was charged
with harassment for allegedly shoving the complaining witness.
128 Hawai#i at 35, 282 P.3d at 577. Prior to the commencement of
trial, the circuit court denied the defendant’s motion to cross-
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
examine the complaining witness on whether she had stolen and
used the defendant’s credit cards after he was arrested. Id. at
35-36, 282 P.3d at 577-78. The circuit court decided that
evidence of the stolen credit cards was not relevant and was
outweighed by the danger of unfair prejudice to the complaining
witness. Id. at 36, 282 P.3d at 578. This court vacated and
remanded this decision and held that the defendant’s right to
confrontation was violated:
Respondent’s case against Petitioner hinged on the
court’s willingness to believe Complainant’s testimony over
Petitioner’s version of the events, and Petitioner’s
accusation against Complainant may have given her a motive
to slant the nature of her testimony against Petitioner.
Had Petitioner been allowed to ask, he might have succeeded
in eliciting testimony from Complainant tending to show that
she was biased or had a motive to fabricate or exaggerate a
story about harassment and to testify falsely in court.
This, in turn, could have affected the court’s view of
Complainant’s credibility, and might have led the court to
conclude that Respondent had not proven its case. Without
evidence of Complainant’s potential bias or motive, the
court did not have a sufficient basis from which to make an
informed appraisal of Complainant’s credibility. See
Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222. As such,
Petitioner’s right to confrontation was violated when the
court prevented him from cross-examining Complainant about
the alleged credit card theft.
Id. at 40, 282 P.3d at 582.
As these cases illustrate, in order to satisfy the
confrontation clause, a defendant must be given the opportunity
to cross-examine a witness as to his or her bias or motive.
Applying this rule to the present case, the circuit court clearly
curtailed Acacio’s effort to extract specific information from
the CW relating to her motive when it prohibited cross-
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
examination of the CW as to her knowledge of Acacio’s immigration
status. This information, specifically the CW’s awareness of
Acacio’s risk of deportation if he were arrested, raises the
question of whether the CW accused Acacio of these offenses in
order to have Acacio deported and permanently removed from her
life. This information was especially important for the jury to
consider in light of the CW’s earlier testimony that she wanted
Acacio out of the house but that he still had not left two weeks
after their break-up. The possibility of Acacio’s deportation
presented a lasting solution to the CW’s relationship issues with
Acacio, and may have motivated the CW to exaggerate or fabricate
her story. As such, without evidence of the CW’s knowledge of
Acacio’s risk of deportation if arrested, the jury did not have
sufficient information from which to make an informed appraisal
of the CW’s motive.
The ICA determined that the jury did have sufficient
information from which to make an informed appraisal of the CW’s
motive because the circuit court allowed Acacio to establish
through the CW’s testimony that: 1) she wanted Acacio out of the
house, 2) she was angry that Acacio remained in the house after
she asked him to leave, and 3) she was angry with Acacio right
before she spoke to police officers. Acacio, 2016 WL 4078838, at
*2. We disagree. In Levell, this court did not accept a similar
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
argument when it determined that giving a defendant “considerable
latitude” during cross-examination of the complaining witness is
not sufficient if the defendant is deprived of an opportunity to
present evidence about the source of the complaining witness’s
potential bias or motive. 128 Hawai#i at 41, 282 P.3d at 583.
The Levell court concluded that the circuit court erred in
precluding cross-examination of the complaining witness as to the
credit card issue because “the court did not have in its
possession sufficient information to apprise itself of the
alleged bias and motivation of Complainant on what Petitioner
indicated was the source of such a bias or motivation -– the
alleged credit card theft.” Id.
Similarly, the jury in this case did not have
sufficient information to apprise itself of the source of the
CW’s alleged motivation for calling the police and testifying
against Acacio, namely that the CW was trying to permanently
remove Acacio from her house and her life by removing him from
the country. As such, the circuit court did not afford Acacio
with the threshold level of inquiry required under the
confrontation clause; the ICA erred in concluding otherwise under
the first step of its analysis.
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
2. The CW’s motive evidence was improperly excluded
pursuant to HRE Rule 403.3
Even if the ICA were correct that the threshold level
of inquiry was met under the confrontation clause, the ICA erred
in the second step of its analysis when it concluded that the
evidence of the CW’s knowledge of Acacio’s immigration status was
properly excluded under HRE Rule 403.
HRE Rule 403 (1993) provides: “Although 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.”
The circuit court was concerned that evidence of
Acacio’s immigration status was unduly prejudicial because
“penalty and punishment shall not be considered by the jury and
deportation of a person is a form of punishment.” Similarly, the
ICA noted that “a jury’s verdict cannot be based on sympathy for
the defendant” and that the evidence of Acacio’s immigration
3
We note that this step in our analysis is not necessary because we
conclude that the threshold level of inquiry under the confrontation clause
was not met. See Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[T]he trial
court’s discretion to exclude evidence under HRE Rule 403 only becomes
operative after the threshold level of inquiry under the confrontation clause
has been afforded.”). We address the ICA’s analysis under the second step,
however, for the sake of thoroughness and to provide guidance in this area of
the law.
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
status “created a substantial risk that the jury would be unduly
influenced or distracted by concerns that a finding of guilt
would lead to Acacio’s deportation -- an improper subject for the
jury to consider.” Acacio, 2016 WL 4078838, at *2.
It is true that questions about a defendant’s
immigration status are generally considered both irrelevant and
prejudicial in criminal proceedings. See State v. Avendano-
Lopez, 904 P.2d 324, 331 (Wash. Ct. App. 1995) (“Questions
regarding a defendant’s immigration status are similarly
irrelevant and designed to appeal to the trier of fact’s passion
and prejudice and thus are generally improper areas of
inquiry.”); Salas v. Hi-Tech Erectors, 230 P.3d 583, 586 (Wash.
2010) (“Issues involving immigration can inspire passionate
responses that carry a significant danger of interfering with the
fact finder’s duty to engage in reasoned deliberation.”);
Gonzalez v. City of Franklin, 403 N.W.2d 747, 760 (Wis. 1987)
(noting that evidence of the possibility of the defendant’s
deportation if found guilty would have an “obvious prejudicial
effect” for the defendant).
However, in this case, questions about Acacio’s
immigration status were not used for an improper purpose. See
Avendano-Lopez, 904 P.2d at 331 (“It is well-established that
appeals to nationality or other prejudices are highly improper in
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
a court of justice, and evidence as to the race, color, or
nationality of a person whose act is in question is generally
irrelevant and inadmissible if introduced for such a purpose.”
(emphasis added)). In this case, the DPD made it clear that she
was introducing this evidence in order to show the CW’s motive,
and the circuit court acknowledged that the line of questioning
was not done in bad faith.
Additionally, the circuit court’s concern about unfair
prejudice could have been allayed by a limiting instruction,
which would have directed the jury to consider Acacio’s
immigration status only for the purpose of evaluating the motive
of the CW, and not for purposes of penalty, punishment, or other
collateral consequences. Thus, because Acacio’s immigration
status was highly probative evidence of the CW’s motive, and
because its prejudicial effect could have been contained through
a limiting instruction, the ICA erred in concluding that the
circuit court did not abuse its discretion when it excluded the
evidence from trial.
In sum, we conclude that the ICA erred in both steps of
its analysis on this point of appeal. Accordingly, Acacio’s
right to confrontation was violated when the circuit court
prevented him from cross-examining the CW about her knowledge of
his immigration status. We turn now to examining whether this
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
error was harmless.
B. The error was not harmless beyond a reasonable doubt.
“Denial of a defendant’s constitutionally protected
opportunity to impeach a witness for bias, motive or interest is
subject to harmless error analysis.” Balisbisana, 83 Hawai#i at
117, 924 P.2d at 1223 (citing State v. Corella, 79 Hawai#i 255,
261, 900 P.2d 1322, 1328 (App. 1995)). “In applying the harmless
beyond a reasonable doubt standard the court is required to
examine the record and determine whether there is a reasonable
possibility that the error complained of might have contributed
to the conviction.” Pond, 118 Hawai#i at 461, 193 P.3d at 377
(citing Balisbisana, 83 Hawai#i at 113-14, 924 P.2d at 1219-20).
This court considers a number of factors in determining whether
an error is harmless in this context, including “the importance
of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case.” Levell, 128 Hawai#i at 42, 282 P.3d at 584
(quoting Olden v. Kentucky, 488 U.S. 227, 233 (1988)); see also
Balisbisana, 83 Hawai#i at 117, 924 P.2d at 1223.
Here, there is a reasonable possibility that the
24
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
circuit court’s error might have contributed to Acacio’s
conviction. The CW’s testimony was crucial to the prosecution’s
case because she was the only eyewitness to Acacio’s alleged
threat and abuse against her. Because the alleged threats and
abuse occurred in the CW’s bedroom, with only Acacio and the CW
present, the case turned on the credibility of these two parties.
As such, evidence of the CW’s motive to exaggerate or fabricate
her story would have been helpful for the jurors in assessing the
CW’s credibility and in ultimately determining which party to
believe.
And while the circuit court allowed cross-examination
as to the CW’s potential ulterior motives for fabricating an
allegation of abuse, the court did not permit any cross-
examination with respect to the CW’s potential motive to get
Acacio deported. The possibility of Acacio’s deportation, which
would appear to permanently solve the CW’s issues with her ex-
boyfriend, could have furnished a strong motive for the CW to
testify falsely. As such, we conclude that there is a reasonable
possibility that the circuit court’s error in limiting the CW’s
testimony on the subject of Acacio’s immigration status might
have contributed to Acacio’s conviction and was thus not harmless
beyond a reasonable doubt.
25
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
V. CONCLUSION
For the foregoing reasons, we vacate the ICA’s
September 9, 2016 judgment on appeal, vacate the circuit court’s
February 4, 2013 judgment of conviction and probation sentence,
and remand this case to the circuit court for a new trial.
Jon N. Ikenaga /s/ Mark E. Recktenwald
and Titiimaea N. Ta#ase
for petitioner /s/ Paula A. Nakayama
Brian R. Vincent /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
26