State v. Levell.

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Electronically Filed
Supreme Court
SCWC-11-0000073
08-AUG-2012
09:47 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
DONALD LEVELL, JR., Petitioner/Defendant-Appellant.
NO. SCWC-11-0000073
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-11-0000073; CASE NO. 1P110-10648)
August 8, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
AND CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF DUFFY, J., RECUSED
OPINION OF THE COURT BY ACOBA, J.
We hold that (1) the refusal of the District Court of
the First Circuit (the court) to allow Petitioner/Plaintiff-
Appellant Donald Levell, Jr. (Petitioner) to cross-examine Malia
Avila (Complainant) regarding whether she had stolen his credit
cards and used them after the alleged incident for which
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Petitioner was tried violated Petitioner’s right to confrontation
guaranteed by article I, section 14 of the Hawai#i Constitution1;
(2) Complainant’s acts, if believed by the trier of fact, might
establish her motive to fabricate claims against Petitioner or to
testify falsely against Petitioner at trial; and (3) the court’s
error was not harmless beyond a reasonable doubt. We therefore
vacate the March 2, 2012 judgment filed by the Intermediate Court
of Appeals (ICA) pursuant to its February 14, 2012 Summary
Disposition Order (SDO)2, affirming the court’s January 12, 2011
Judgment convicting Petitioner of Harassment, Hawai#i Revised
Statutes (HRS) § 711-1106(1)(a)3, and remand for a new trial.
I.
On October 26, 2012, Petitioner was charged by
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) with
Harassment, for allegedly shoving Complainant and thereby
1
Haw. Const. art I, § 14 provides in relevant part:
Section 14. In all criminal prosecutions, the accused shall
enjoy the right to . . . to be confronted with the witnesses
against the accused[.]
2
The SDO was filed by Presiding Judge Daniel R. Foley, the
Honorable Lawrence M. Reifurth, and the Honorable Lisa M. Ginoza.
3
HRS § 711-1106(1)(a) (Supp. 2010) provides:
Harassment.
(1) A person commits the offense of harassment if, with intent
to harass, annoy, or alarm any other person, that person:
(a) Strikes, shoves, kicks, or otherwise touches another
person in an offensive manner or subjects the other person to
offensive physical contact.
2
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subjecting her to offensive physical contact. Petitioner’s bench
trial was held on January 12, 2011.4
Prior to the commencement of trial, Petitioner moved
under Hawai#i Rules of Evidence (HRE) 404(b)5 for permission to
cross-examine Complainant on whether she had stolen Petitioner’s
credit cards6 and used them after he was arrested. Petitioner
argued that the unauthorized use of the credit cards was relevant
to prove Complainant’s motive to accuse Petitioner of the charged
incident and to testify falsely against him at trial. Petitioner
contended that the evidence was not highly prejudicial, and that
any prejudice was outweighed by the probative value of the
evidence.7 Respondent opposed Petitioner’s request on the
grounds that Petitioner’s claim that Complainant stole his credit
4
The Honorable Faye Koyanagi presided.
5
Hawai#i Rules of Evidence 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence 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.
6
Petitioner uses “credit cards” and “debit cards” interchangeably.
This opinion refers to the items allegedly stolen as “credit cards.”
7
HRE Rule 403 provides that “[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.”
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cards was just an allegation and had no bearing on whether
Petitioner committed the charged offense. Respondent also stated
that the alleged theft was “being investigated up [until] five
minutes ago in which the [Petitioner] apparently was talking to
the police about it.”
The court ruled in favor of Respondent, stating that
it would not allow cross-examination as to the credit card theft
because that issue was “not relevant to the elements of the
harassment on the date on which it occurred.” Also, according to
the court, although the alleged theft might go to motive, it was
highly prejudicial to the Complainant, “especially in light of
the fact that [it was] currently being investigated[,]” and that
cross-examination might cause Complainant to violate her right
against self-incrimination.
At trial, the testimony of the parties established that
at the time of the alleged offense, Petitioner had been living in
an apartment located in Waikiki for approximately ten years.
About a month prior to the alleged incident of harassment,
Petitioner met Complainant as he was walking along the beach.
Petitioner invited Complainant for dinner at his apartment.
Complainant told Petitioner that she did not have a
place to stay because her father was sick in the hospital, and
she had just moved to Hawai#i from Las Vegas. Petitioner invited
Complainant to stay at his apartment. Complainant acknowledged
that she did not have a place to live when she met Petitioner,
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and that she resided at Petitioner’s apartment without paying
rent. Complainant referred to Petitioner as her boyfriend.
When Complainant moved in with Petitioner, she did not
have a cell phone. According to Petitioner, Complainant told him
that she had lost her cell phone on a bus. Since Petitioner had
three phones, an “IPhone” and two “Motorola” phones, Petitioner
allowed Complainant to have one of his Motorola phones.
Complainant claimed that Petitioner “gave” her the phone;
Petitioner claimed that he only allowed Complainant to use the
phone.
At about 6:00 p.m. on October 25, 2010, Complainant
arrived at Petitioner’s apartment from work. According to
Complainant, when she arrived, Petitioner was drinking an
alcoholic beverage. Petitioner then approached Complainant with
a cell phone, in order to transfer the “SIM” card in her phone to
his phone. Complainant went to the bathroom, and while she was
in the bathroom, Petitioner took the SIM card from her phone and
put it in his phone. When Complainant came out of the bathroom,
she asked Petitioner for the SIM card, but Petitioner refused to
return it to her.
According to Complainant, she asked for the SIM card
again, and Petitioner stood up, walked towards her, and pushed
her in the chest with his open palms. Complainant fell and hit
her back and rib area on a rattan chair that was next to her.
Complainant had no visible injuries as a result of the incident.
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Complainant then got up, told Petitioner that she was
going to call the police, went “downstairs,” and called the
police from the “security’s phone.” Complainant claimed that she
was not carrying a cell phone at that point. When the police
arrived, Complainant gave them a statement. Petitioner then came
downstairs, and the police arrested him. According to
Complainant, she returned to the apartment that evening with the
police in order to retrieve her belongings and never returned to
the apartment or saw Petitioner again until the day of trial.
On cross-examination, Petitioner’s counsel asked
Complainant about the incident involving the phone. Complainant
admitted that when Petitioner exchanged the SIM card from her
phone to the second phone, Petitioner gave her the second phone.
Complainant, however, was upset because she wanted the phone
Petitioner had originally given to her. Complainant then asked
Petitioner several times to return her phone. Petitioner said
that he was not going to give Complainant the phone and that she
could use the second phone. Complainant then asked for her phone
again. Complainant testified that Petitioner then stood up and
shoved her.
Near the end of cross-examination, Petitioner’s counsel
again asked the court for permission to ask Complainant if she
had used Petitioner’s credit cards after he was arrested.
Petitioner’s counsel told the court that the questions were
relevant to “the motive of her lying, making this whole story up
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. . . It is highly relevant to . . . our defense and not
outweighed by prejudice.” Petitioner’s counsel stated that
Complainant “can simply deny the allegation. But I have the
right to ask her that.” Respondent objected “as to relevance[,]”
and because there was “an allusion to a conspiracy to get
[Petitioner] arrested to get him out of the apartment that I
don’t believe the defense has any basis for[.]” Respondent asked
the court to advise Complainant of her right not to incriminate
herself.
The court denied Petitioner’s request stating, “[I am]
not going to allow counsel to ask [Complainant] what she took
from the apartment. It’s alluding again to the theft of the
credit cards. And it’s based on the same rule as before. It’s
not relevant and prejudicial.” Petitioner then moved for a
directed verdict, but the court denied the motion.
Petitioner then testified as to his recollection of the
events of October 25, 2010. According to Petitioner, when
Complainant arrived at his apartment around 6:00 p.m. he was
sitting on a stool in the bathroom. Petitioner asked Complainant
if she would take the SIM card out of her phone and give it to
him. Petitioner then took the SIM card and put it in another
Motorola phone, called the phone from his IPhone to make sure the
Motorola phone worked, and gave Complainant the working phone.
Complainant was not satisfied and asked Petitioner to return her
original phone. Complainant then took both phones and left.
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When Petitioner came out of the bathroom, Complainant
was gone. Petitioner then went “downstairs” to find her.
Petitioner stated that Complainant had called the police from the
apartment. When Petitioner went “downstairs,” he saw that
Complainant was talking to several police officers. Petitioner
walked over to the officers and said, “I’m probably the gentleman
that you -- that you’re looking for, ‘cause I was trying to find
out what -- you know, what the problem is, what’s going on, what
-- what they were called for.” Petitioner testified that an
officer grabbed him, handcuffed him, and shoved him into the back
of a squad car.
Petitioner claimed that he “never put [his] hands on
[Complainant], never -- never had any physical contact with her
or any other woman in my life.” At the time of trial, Petitioner
walked with a cane because his knee had been replaced and he
needed back surgery. Petitioner explained that he had had carpal
tunnel surgery two weeks before the alleged incident with
Complainant and could not “grip or hold anything” because “[j]ust
a little touch was painful.”
On cross-examination, Petitioner testified that the
conversation regarding the phones was the only conversation he
had with Complainant that night. Petitioner also related that
one of the reasons he went “downstairs” to look for Petitioner
was that he was going to tell her that he did not want her to
stay at the apartment anymore. When Respondent asked Petitioner
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whether he was going to “kick” Complainant out of the apartment
“solely because [of] the cell phone thing,” Petitioner answered,
“No. I had a -- I had already noticed that she had been stealing
from me--” Respondent objected and the court sustained the
objection.
In its closing argument, Respondent emphasized that
Complainant was credible and that the shove was a result of the
tension that had built up between Petitioner and Complainant.
Petitioner’s counsel argued that the details of Complainant’s
testimony did not “add up” and that she “clearly made up this
allegation to get [Petitioner] arrested so she could remain
staying at this place, where she’s not paying rent.” Respondent
replied that the evidence showed that Complainant had not been
back to the apartment.
II.
After the court heard the parties’ closing arguments,
it found Petitioner guilty, stating:
Based on the evidence presented and viewing the
credibility of the witnesses, the court is going to find that
[Respondent] has proven its case beyond a reasonable doubt as to
each and every element.
Although the testimony is diametrically opposed as to
whether or not there was an offensive touching, I believe the
credibility of the complaining witness was more credible than that
of the [Petitioner].
One damaging or incriminating statement made by
[Petitioner] was when he went down to see the police he said and
told them I am the gentleman you’re looking for. Which means
something illegal or criminal had occurred in the apartment prior.
The biomechanics of the fall is consistent with
[Complainant’s] rendition of it. She was shoved. Perhaps seeing
both open palms, not knowing exactly which force was greater, she
did say she fell onto the bed first, which could then mean that
she angled her body as she fell onto the floor and chair.
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She did point to the left side of her shoulder when
she said she had her purse there, which is consistent with where
the purse would have ended up.
(Emphases added.)
III.
The ICA affirmed Petitioner’s conviction. In its SDO,
the ICA stated, inter alia, as follows:
Introduction of Complainant’s alleged credit
card theft from [Petitioner] after the alleged harassment
occurred was subject to exclusion by HRE Rule 403 after a
“cost-benefit calculus and a delicate balance between
probative value and prejudicial effect.” State v.
Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220
(1996)(internal quotation marks and citations omitted)).
“Exclusion of relevant evidence is reviewed for an abuse of
discretion.” State v. Cordeiro, 99 Hawai#i 390, 404, 56
P.3d 692, 706 (2002)). . . . In the instant case, there was
not abuse of discretion in prohibiting [Petitioner] from
raising Complainant’s alleged theft of his credit card after
the alleged harassment occurred. . . .
Even if there was error by the district court,
it was harmless because [Petitioner’s] own testimony
provided substantial evidence in addition to Complainant’s
testimony to support his conviction. See State v. Mars, 116
Hawai#i 125, 139, 170 P.3d 861, 875 (App. 2007)).
“[Petitioner] testified that he never had physical contact
with Complainant on the day in question, and yet after
Complainant left the apartment, he testified that he went
downstairs, saw Complainant with a police officer and said
‘I’m probably the gentleman that you -- that you’re looking
for[.]’.”
State v. Levell, No. CAAP–11–0000073, 2012 WL 456490, at *1 (Haw.
App. 2012).
IV.
On May 1, 2012, Petitioner filed an application for
writ of certiorari (Application), in which he listed the
following questions:
1) Whether the ICA gravely erred in holding that the
district court did not abuse its discretion in prohibiting
[Petitioner] from raising the complainant’s alleged theft of his
credit cards after the alleged harassment occurred.
2) Whether the ICA gravely erred in holding that even if
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the district court erred, the error was harmless because
[Petitioner’s] own testimony provided substantial evidence in
addition to complainant’s testimony to support his conviction.
(Emphases added.)
Respondent did not file a Response to the Application.
V.
In his Application, Petitioner argues that the court’s
refusal to allow Petitioner to introduce evidence of
Complainant’s acts to show bias, interest, or motive violated his
right to confrontation guaranteed by the sixth amendment to the
United States Constitution8 and article I, section 14 of the
Hawai#i Constitution. Petitioner contends that the court should
have allowed him to introduce evidence relevant to Complainant’s
credibility and her bias, interest, and motive to fabricate her
claims pursuant to HRE Rules 404(b) and 609.1.9 Petitioner cites
to State v. Balisbisana, 83 Hawai#i 109, 115, 924 P2d 1215, 1221
(1996), and State v. Marcos, 106 Hawai#i 116, 121, 102 P.3d 360,
365 (2004).
8
U.S Const. amend. XI provides in relevant part:
In all criminal prosecutions, the accused shall enjoy the
right to . . . be confronted with the witnesses against
him[.]
9
HRE Rule 609.1 provides:
(a) General rule. The credibility of a witness may be
attacked by evidence of bias, interest, or motive.
(b) Extrinsic evidence of bias, interest, or motive.
Extrinsic evidence of a witness' bias, interest, or motive
is not admissible unless, on cross-examination, the matter
is brought to the attention of the witness and the witness
is afforded an opportunity to explain or deny the matter.
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In Balisbisana, the defendant appealed from his
conviction of abuse of a family or household member, arguing that
his right to confrontation was violated when the trial court
excluded all references to the complaining witness’s conviction
for harassing the defendant. 83 Hawai#i at 112, 924 P.2d at
1218. This court explained that evidence of bias, interest, or
motive may be excluded under HRE Rule 403 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. Balisbisana, 83 Hawai#i at
114, 924 P.2d at 1220. However, the trial court's discretion
becomes operative “only after the constitutionally required
threshold level of inquiry has been afforded the defendant.” Id.(emphasis added). Under the constitution, the confrontation
clause protects “[a]n accused’s right to demonstrate the bias or
motive of prosecution witnesses[,]” and “‘the exposure of a
witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross
examination.’” Balisbisana, 83 Hawai#i at 115, 924 P.2d at 1221(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).
Thus, Balisbisana held that the trial court’s prohibition of all
inquiry into the complaining witness’ conviction was an abuse of
discretion because, in the absence of that evidence, the jury did
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not have a sufficient basis from which to make an informed
apprisal of the complaining witness’s alleged bias and motive.
Id. at 116, 924 P.2d at 1222.
In Marcos, this court considered whether the
defendant’s right to confrontation was violated when he was
barred from cross-examining the complaining witness about whether
“she had a motive to see that Petitioner was convicted in order
to assist her in a pending family court case concerning custody
of the minor child of Petitioner and the complainant.” 106
Hawai#i at 117, 102 P.3d at 361. This court reaffirmed that the
defense should be allowed to “‘expose the fact from which the
jurors could appropriately draw inferences relating to the
complainant’s motive or bias.’” Id. at 121, 102 P.3d at 365
(quoting Balisbisana, 83 Hawai#i at 115, 924 P.2d at 1221). The
appropriate inquiry was “whether the jury had sufficient
information from which to make an informed appraisal of [the
complainant’s] motives and bias, absent evidence of her
conviction for harassing [the defendant].’” Id. (quoting
Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222)). Since the
defendant was prevented from cross-examining the complainant
regarding her motive to lie, the Marcos court concluded that the
defendant’s right to confrontation was violated. Id. at 122, 102
P.2d at 366; see also Corella, 79 Hawai#i at 261-62, 900 P.2d at
1327-28 (disallowing cross-examination as to whether complaining
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witness lied about her contact with the defendant because she
feared jeopardizing her relationship with her boyfriend violated
the defendant’s right to confrontation).
VI.
A.
It is established in this jurisdiction that “[b]ias,
interest, or motive is always relevant under HRE Rule 609.1.”
Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987) (emphasis
added). The degree to which evidence might tend to show possible
bias, interest, or motive is not the determining factor with
respect to admissibility of evidence under HRE Rule 609.1.
Rather, the relevant inquiry is whether such evidence has “any
tendency to support an inference of the witness’ disposition or
tendency, consciously or unconsciously, to slant testimony, one
way of the other, from the straight and true.” Addison M.
Bowman, Hawai#i Rules of Evidence Manual (HRE Manual) §
609.1–[1][C] (2010-11 ed.) (emphasis added). Once evidence has
been shown to be relevant to possible motive, interest, or bias,
“it is error not to allow cross-examination to reveal possible
bias.” Estrada, 69 Haw. at 220, 738 P.2d at 823.
B.
In this case, the court prevented Petitioner from
cross-examining Complainant about the alleged theft because it
concluded that such testimony was not relevant and was outweighed
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by the danger of unfair prejudice to Complainant.10 But the
authorities cited above establish that evidence of witness bias
is relevant, and that 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. See Balisbisana, 83 Hawai#i at 114, 924 P.2d at
1220; Estrada, 69 Haw. at 220, 738 P.2d at 823. As noted, supra,
the 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. See Balisbisana, 83 Hawai#i
at 116, 924 P.2d at 1222.
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
againt 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
10
When Petitioner initially sought to ask Complainant about the
credit card incident, one of the reasons the court gave for not allowing the
testimony was that Complainant “might violate her right to self
incrimination.” However, although the court presumably would have advised
Complainant of her right against self-incrimination (in fact, Respondent asked
the court to advise Complainant of her rights), it is not clear whether
Complainant would have refused to give answers. In the absence of cross-
examination, whether Complainant would have asserted the right against self-
incrimination is entirely speculative.
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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 apprisal 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.
C.
Respondent nevertheless argues that the credit card
incident had very little probative value because the incident
occurred after Complainant accused Petitioner of harassment, and
thus Complainant would not have had a motive to falsely accuse
Petitioner of the prior incident of harassment. The record is
not clear as to when the alleged theft of Petitioner’s credit
cards occurred. But even assuming that Complainant took the
credit cards after she accused Petitioner of harassment, the
alleged theft could still have furnished a motive for Complainant
to slant or exaggerate her testimony at Petitioner’s trial.
Evidence about the theft could have been used to establish
Complainant’s motive to provide false testimony against
Petitioner in retaliation for his seeking her arrest. As
recounted, supra, the court might have had a significantly
different impression of Complainant’s credibility had
Petitioner’s counsel been permitted to pursue his proposed line
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of cross-examination. Therefore, Petitioner should have been
allowed to ask Complainant about the alleged theft.
D.
Respondent also contends that Petitioner’s right to
confrontation was not violated because the court had in its
possession sufficient information to apprise the biases and
motivations of Complainant. According to Respondent, Petitioner
was given “considerable latitude” during cross-examination and
was able to argue to the court that Complainant fabricated the
harassment incident because she wanted to keep Petitioner’s cell
phone and stay in his apartment without paying rent. However,
Petitioner’s theory was also that Complainant had a reason to
testify falsely or to slant her testimony against him because he
had accused her of stealing his credit cards. The court was
unable to consider this potential bias or motive in weighing the
parties’ testimony because Petitioner was not allowed to cross-
examine Complainant as to the alleged theft. To reiterate, the
relevant inquiry in deciding whether cross-examination should
have been allowed was whether the evidence had any tendency to
support an inference of the witness’s disposition or tendency,
consciously or unconsciously, to slant testimony, one way of the
other, from the straight and true. HRE Manual § 609.1–[1][C];
see also Balisbisana, 83 Hawai#i at 114, 924 P.2d at 1220(holding that the trial court has discretion to exclude evidence
of a witness’s bias or motive only after the constitutionally
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required threshold level of inquiry has been afforded the
defendant). In this case, 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. Thus, the court erred in precluding
cross-examination into the credit card incident.
VII.
Finally, Respondent maintains that any error by the
court was harmless beyond a reasonable doubt “due to the extent
of cross-examination otherwise permitted, the extremely limited
value of the proposed cross-examination, and the overall strength
of the prosecution’s case, including [Petitioner’s] admission
that he approached the police and told them without any prompting
‘I’m probably the gentleman . . . that you’re looking for[,]’
despite his claim that no altercation had occurred. The ICA
similarly concluded that any error by the court in barring cross-
examination was harmless because Petitioner’s “own testimony
provided substantial evidence . . . to support his conviction[,]
since he testified that he told the police officers that “‘I’m
probably the gentleman that you -- that you’re looking for[.]’”
Levell, 2012 WL 456490, at *1.
The “[d]enial of a defendant’s constitutionally
protected opportunity to impeach a witness for bias, motive or
interest is subject to harmless error analysis.” Balisbisana, 83
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Hawai#i at 117, 924 P.2d at 1223. A defendant’s conviction will
not be overturned if a court commits an error that is harmless
beyond a reasonable doubt. State v. Veikoso, 125 Hawai#i 126,
135, 270 P.3d 997, 1006 (2011). However, an error is not
harmless “if there is a reasonable possibility that [the] error
might have contributed to the conviction.” Id.; see also
Corella, 79 Hawai#i at 261, 90 0 P.2d at 1328 (Conceivably, there
is “a reasonable possibility that the error might have
contributed to the conviction.”). In reviewing whether an error
was harmless, this court examines the entire record. “[A] host
of factors” may be considered, 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.” Id. (quoting Olden v. Kentucky, 488 U.S.
227 (1988)).
In this case, Complainant’s testimony was central to
Respondent’s case. The allegations of credit card theft were not
cumulative to any testimony introduced at trial. There was also
no other evidence to directly corroborate Complainant’s
testimony, and therefore evidence of Complainant’s bias or motive
to lie would have been particularly helpful in assessing
Complainant’s credibility. While the court allowed cross-
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examination as to Complainant’s other potential motives to
fabricate an allegation of abuse--keeping Petitioner’s cellphone
and remaining in Petitioner’s apartment without paying rent--it
did not permit any cross-examination with respect to the theft
allegation. Retaliation for an accusation of theft would seem to
furnish Complainant with a motive to testify falsely or to
exaggerate, especially since Complainant gave testimony that she
only returned to Petitioner’s apartment once with the police to
recover her belongings.
Finally, Respondent argues that Petitioner basically
admitted guilt to the police when he told the police that he was
the man they were looking for. But, taken in context,
Petitioner’s statement was not an admission of guilt.
Petitioner’s testimony was that he told the police, “I’m probably
the gentleman that you -- that you’re looking for, ‘cause I was
trying to find out what -- you know, what the problem is, what’s
going on, what -- what they were called for.” (Emphasis added.)
Complainant testified that she told Petitioner that she was going
to call the police before she left the apartment. Petitioner
testified that Complainant called the police before she left the
apartment. It cannot be disputed as a matter of fact, then, that
Petitioner knew that the police were being called. It is
therefore not surprising that, when Petitioner saw Complainant
talking to a police officer, Petitioner would approach the
officer and introduce himself. Thus, the court and the ICA erred
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in concluding that Petitioner’s statement was an admission of
guilt and that Petitioner would not have known that the police
could be coming at Complainant’s request. Considering the
circumstances of Respondent’s case, the error was not harmless.
Respondent’s case was essentially dependent on the
credibility of Complainant, its only witness. The court decided
the case on the basis of finding “the [Complainant] . . . more
credible than . . . [Petitioner].” However, the court might have
had a different impression of Complainant’s credibility if
Petitioner had been allowed to cross-examine her as to the
alleged theft. There is a reasonable possibility then that the
court’s error might have contributed to Petitioner’s conviction,
and thus the court’s error was not harmless.
VI.
Accordingly, we vacate the March 2, 2012 judgment of
the ICA affirming the court’s January 12, 2011 Judgment, and
remand to the court for proceedings consistent with this opinion.
Audrey E. Stanley, /s/ Mark E. Recktenwald
Trisha Y. Nakamura,
and James S. Tabe, /s/ Paula A. Nakayama
for petitioner
/s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima,
for respondent /s/ Sabrina S. McKenna
/s/ Jeannette H. Castagnetti
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