State v. AKUNA

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No. 29525

§§
:N ms ::QTBRMED:ATE <:@URT OF APPEALS §§
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oF THE STATE or HAWA:‘:

STATE ©F HAWAI`I, Plaintiff~Appellee, v. an
C.~.J

JOE D. AKUNA, Defendant-Appellant

APPEAL FROM THE ClRCUlT COURT OF THE FIRST CIRCUlT
(CR. NO. O7~l-l632)

MEMORANDUM OPINlON
(By: Foley, Presiding J., Fujise, and Leonard, JJ.)

Defendant~Appellant Joe D. Akuna (Akuna) appeals from'
the Judgment of Conviction and Sentence (Judgment) filed in the
Circuit Court of the First Circuit1 (circuit court) on
November 24, 2008.

'A jury found Akuna guilty of Sexual Assault in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 707-73l(l)(a) (Supp. 2008) (Count I); Sexual Assault in the
Fourth Degree, in violation of HRS § 707~733 (l993) (Count II);
and Attempted SeXual Assault in the Fourth Degree, in violation
of HRS §§ 705~5OO (l993) & 707-733 (Count lll). The circuit
court sentenced Akuna to ten years of imprisonment, with a
mandatory minimum of three years and four months for Count I, and
one year of imprisonment for each of Counts II and III. The
sentences were to run concurrently with each other.

On appeal, Akuna contends the circuit court erred and
violated his constitutional rights

(l) to a fair trial by denying his motion to exclude
from evidence at trial additional statements made by the
Complainant (Complainant) to the State of HawaiU.(State) Deputy
Prosecuting Attorney (Prosecutor), which statements Prosecutor

failed to disclose to Akuna until the day of trial;

1 The Honorable Michael A. Town presided.

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(2} to confrontation, to present a defense, and to a
fair trial when the court denied his request for a mistrial after
he was precluded from impeaching Complainant's credibility
through questioning of Frosecutor, who was the only witness to
whom Complainant had made her prior inconsistent statements; and

(3) to oonfrontation, to present a defense, to a jury
trial, and to a fair trial, when the court conducted its own
questioning of Complainant and read the court's own finding of
fact (FOF> to the jury regarding Complainant's prior statement.

Akuna argues in the alternative that even if it were
proper for the circuit court to read the FOF to the jury, the
court erred by failing to explain to the jury what is an FOF and
how the jury should evaluate one. 5

Akuna requests that we vacate his conviction and remand
this case for a new trial.

I. BACKGROUND

Pretrial

On July 28, 2008, the circuit court held a hearing on
the motions in limine. Akuna‘s counsel (Defense Counsel) asked
the circuit court to preclude from evidence at trial statements
Complainant had made to Prosecutor the previous day. Prosecutor
had disclosed the statements to Defense Counsel that morning.
Prosecutor stated that she had interviewed Complainant in
preparation for trial about ten days prior to the hearing on the
motions in limine (first interview), but Complainant did not tell
Prosecutor until the interview the previous day (second
interview) that Complainant and Akuna had engaged in the
following dialog at the time of the incident: Akuna asked
Complainant, "Do you want to fool around with anyone?"
Complainant told him, "No. I'm not like that.“ Akuna responded,
"Your husband will cheat on you when he’s deployed." Complainant
said, "Our relationship isn‘t like that." Akuna said, "Whatever
happens happens."

Prosecutor stated that she disclosed the statements to

Defense Counsel, pursuant to the requirements of Hawafi Rules of

T\)

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Penal Procedure (HRPP> Rule 16,* and the State intended to use
the statements at trial. No third party was present when
Complainant made the statements. Befense Counsel argued that the
circuit court should exclude the statements from evidence because
“at this point it's kind of late and §it] unfairly burdens the
defense.“
The circuit court orally ruled that it would not
exclude the statements from evidence.
Trial
Complainant testified that on August 23, 2007, she

spent the night with her friend, Fayne, at the house (the House)
belonging to Fayne‘s mother, Auntie Ray. Complainant's fiance
(who was her husband at the time of trial) was at basic training
in Georgia on August 23. He had left for basic training on
August l6, 2007 and was to return to Hawafi in March 2007.

Fayne invited Complainant to stay the night because Fayne did not
want Complainant to be alone. Complainant had previously spent
the night at Fayne's on August l8, 2007.

After driving to Makaha, Complainant, Fayne, and

Fayne's girlfriend, Ali, returned to the House at around ll:OO or
ll 30 p.m. and hung out at the bus, where Fayne lived, that was
parked next to the House. Fayne‘s brother, Fred, showed up with
Akuna. At around l:2O a.m., Complainant went to sleep on the
couch in the House and Fayne went to sleep in her bus.

Complainant chose to sleep in the House because there were

3 HRPP Rule 16(b)(l)(i) and (vii) provides that

[t]he prosecutor shall disclose to the defendant or the
defendant's attorney the following material and information within
the prosecutor's possession or control:

(i) the names and last known addresses of persons whom
the prosecutor intends to call as witnesses in the
presentation of the evidence in chief, together with any
relevant written or recorded statements, provided that
statements recorded by the prosecutor shall not be subject
to disclosure;

(vii) any material or information which tends to
negate the guilt of the defendant as to the offense charged
or would tend to reduce the defendant's punishment
therefor[j

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reaches in the bus. In the House, Fayne’s Uncle Milton was in
one bedroom; Fred and his brother, Patrick, in another bedroom;
Auntie Ray and her boyfriend, Chico, in another bedroom; and
Auntie Ray's friend, Rambo; in another bedroom.

Complainant slept on a couch in the living room. She
could not sleep in any of the bedrooms because they were all
occupied. Adjacent to and behind the couch was a bed, on which
Akuna slept. when Complainant had spent the night at the House
on August lS, she, Akuna, and Rambo had slept in the living room
in the same positions and nothing unusual had happened, so she
trusted Akuna.

Complainant testified that from about 12:3O to l:2O
a.m., she and Akuna talked in the living room about Akuna’s
family, among other things. On direct examination, Prosecutor

and Complainant engaged in the following discussion:

Q [Prosecutor] On the night that this happened, in
other words, the second time that you slept over, did
[Akuna] say anything to you about your husband being on
leave?

A [The Complainant] He told me that soldiers that
went to basic training would fool around and basically 1
couldn't count on him to be faithful to me. So, you know,
whatever happens happens.

Q Did you say anything to [Akuna] when he said that
you couldn't count on your husband being faithful?

A 1 told him that our relationship wasn't at all like
that. And we had trust, you know, since we were friends
before we even went out. And our relationship was mature.

Q what did you mean by that?

A We could trust each other. We weren‘t, you know,
into playing games or anything. We were up-front with each
other. We told each other everything.

Complainant testified that she did not flirt with Akuna in any
way and he did not flirt with her. On cross~examination,
Complainant testified that when she was talking with Akuna, he
was sitting on a love seat next to the couch and she was sitting
on the couch.

In the early morning, Complainant woke up because she
felt something tapping on her leg and found Akuna's hand "right
on [her] leg going by [her] private {genital] area." Complainant

was wearing loose-fitting shorts, a tanktop, underwear, and a

4

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bra. Akuna‘s hand was underneath the leg area of her shorts, on
top of her underwear. As far as Complainant knew, Akuna was
sleeping. His hand was over the back of the couch. Complainant
was shocked and could not breathe, but she thought at first it
might have been an accident and that Akuna just usually put his
hand over the back of the couch when he slept.

Complainant pushed Akuna's hand away and covered
herself with her blanket. She wrapped herself in the blanket
because if it happened again, she wanted to make sure she knew
whether it was a mistake. First, Akuna's hand stayed where she
had pushed it, but a couple of seconds later, it returned to
where it was, only underneath her underwear, and his fingers were
between her labia and by her clitoris, but not touching it.
Complainant panicked and felt violated and helpless. She grabbed
Akuna's hand to pull it out and he resisted, so she grabbed his
hand with both of her hands, turned, and pulled out his hand.

Seconds later, Akuna climbed over the back of the couch
and tried to pin her down with his shoulder, using his weight.
She knew it was Akuna because he had been wearing a white tank
top, he had body odor, and his breath stank and she had noticed
the body odor earlier that evening. Complainant testified that
Akuna then "started to like feel me up." He tried to go
underneath her bra and back into her underwear, to touch her
genitals. Complainant was lying on her side. Akuna put his
hands on her breasts and squeezed them. _

Complainant testified that when Akuna was assaulting
her, she felt nasty, violated, dirty, and defiled. She had never
initiated any type of sexual contact with him, had not kissed him
that night, and had never wanted to have any kind of sexual
relations with him. She had not given Akuna permission to put
his fingers inside any part of her body, to sexually penetrate
her in any way, to have any type of sexual contact with her, or
to touch her. Complainant was menstruating that night and was
wearing a sanitary pad.

Complainant could not slide off of the couch because
the blanket was wrapped around her. She was able to break free

from Akuna after pushing harder against him, No one in the house

5

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ever came to the scene. Complainant did not scream because she
was caught off guard and panicked and could not hreathe.
complainant walked outside to Fayne’s bus and told them what
happened. Fayne called Fred, and Fred called the police.
On cross~examination, Defense Counsel questioned

Complainant about the second interview with Prosecutor:

Q §Defense Counsel} Now, whenever you spoke with

§Prcsecutor§ Sunday, did you tell her anything else about
other statements that were made by {Akuna]?

A [Complainant} No. l just told her what I told her,
that those days previous before Sunday was just reclarifying
everything.

Q 30 you didn't tell [Prosecutor] anything else about
any other statements that [Akuna] made to you during that
night?

A NO.

Q Did you tell her anything about that you said
[Akuna] said something to the effect that ~- asked if you
wanted to hook up?

A No.
Q Or get together or something like that?

A No.

The circuit court called a recess and questioned Prosecutor out

of the presence of the jury:

THE COURT: For the record, [Prosecutor], as best you
can recall, without getting a transcript out of what you
earlier said, on Sunday you had a conversation with
[Complainant] that you dutifully told the Court and [Defense
Counsel] about; correct?

[PROSECUTORl: Yes, Your Honor.

THE COURT: As best you can recall, what did this
witness tell you at that time? ,

[PROSECUTOR]: {Akuna] said to her, "Don‘t you want to
fool around."

THE COURT: Speak up a little bit.
[PROSECUTOR}: I‘m sorry, Your Honor.

[Akuna] said to her, “Don't you want to fool around
with anyone." And she said, "No.“

THE COURT: What else?
[PROSECUTOR]: "Your husband will cheat on you in

basic training." And she said, "Our relationship isn‘t like
that, I‘m not like that."

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THE COURT: Anything else?

[PROSECUTCRl: And then he said, "Whatever happens

happens."
THB CGUHT: is that satisfactory, {Defense Counsel]?
§DEFENEE COUNSEL§: That's fine.
{FROSECUTORl: I'm not exactly sure the order anymore,

Your Honor. That's the best 1 can recreate it.

THE COURT: Be that as it may, it‘s always good to
have a third party there. I'm not going to get too excited
unless l need to.

After the bench conference, Defense Counsel resumed his
questioning of Complainant in open court regarding statements she
had allegedly made to Prosecutor: -

Q [Defense Counsel] You never told [Prosecutor] that

[Akuna said something to the effect of, "Don't you want to
fool around with anyone?"].

A [Complainant]: lt wasn't to where he said, "Don't
you want to fool around." lt was like he was hinting where
he told me, “Things happen." Eut I was explaining to him
the relationship me and my husband had. He told me, "Things
happen."

Q Did you tell {Prosecutor] that [Akuna] told you or
asked you, "Don't you want to fool around"?

A Not those words.

Q Okay. But you are saying now that he hinted
something?

A That was after the event had occurred and I was
going back through all my ~- what had happened. I told
[Prosecutor] that when we were having the conversation, me
and [Akuna], that's what he said,

Q when you were having the conversation with [Akuna]
between l2:30 and l:2O in the morning, he said something or
insinuated something about fooling around?

A Yes.

Q What were the words that he used then?

A He said, "Things happen."

Q ”Things happen."

And then 1 think you covered -~ he made some comment
about your husband will cheat on you during basic training?

A Y€S.

Q And you took that comment, “things happen," in
conjunction with your husband will cheat on you during basic
training as some sort of an implication about you wanting to
fool around?

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A But not with him, But jtu:t liim sayi_ng, you

know, my husband is going to fool around, so § should ~»
it‘s going to happen to me as well, I‘m going to want to do
tl'iat .

So y'ou took it as you ~»~ something implicating thz.zt
-- sibout you fooling around, but not with him.

A: Yes.

Defense Counsel asked Complainant if she mentioned "anything
about these comments" in her police statement, her interview with
the police, or her Grand Jury testimony, and Complainant answered
that she had not. Complainant testified that she had told
Prosecutor about the comments not only during the second
interview, but during the first interview as well.

On redirect examination, Prosecutor asked Complainant
if Akuna had ever said he wanted to hook up or get together with
Complainant or ever asked her, "Do you want to fool around?", and
Complainant responded in the negative. Complainant testified
that when Akuna told her, "Your husband will cheat on you during
basic training," Complainant took that to mean that Akuna was
"trying to tear me down." Complainant told Akuna that her then-
fiance would not cheat on her because their trust and
relationship were strong. Complainant did not in any way think
that Akuna was attracted to her.

Favne and Fred‘s Testimonies

Fayne's testimony was substantially similar to
Complainant's. She testified that she did not see Complainant
and Akuna flirting on the night of the incident. Fred's
testimony was also substantially similar. He testified he did
not see Complainant flirt with Akuna or express any interest in
being with Akuna as boyfriend-girlfriend.

Nadine T. Salle, M.D.‘s Testimony

Nadine T. Salle, M.D., (Dr. Salle) testified that on
August 24, 2007 she treated Complainant in connection with this
incident. Dr. Salle stated that Complainant's findings were
essentially normal and showed a young woman who was menstruating.
Dr. Salle testified that a person could touch another person‘s
labia and clitoris without creating any signs of trauma or

transferring DNA.

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Testimony_regarding evidence on Akuna's hands,

.friiia::i;;t»,@ttl_'»a

Honolulu Police Department (HPD) Officer Crabbe
testified that on august 24, 2OG7, he was dispatched to the
House, where he interviewed Complainant. while at the House,
Officer Crabbe arrested Akuna for sexual assault. The officer
inspected Akuna’s hands and observed a reddish brownish substance
on Akuna's "fingernails where the fingernail and skin meet."

Hugh Okuba (OkubaE, an HPD evidence specialist at the
time of the incident, testified that he swabbed Akuna's hands for
biological evidence and scraped Akuna‘s fingernails for trace
evidence.

Earrie Chua-Chiaco (Chua-Chiaco), a specialist in DNA
analysis, testified that he performed testing on reference buccal
swabs from Akuna‘s mouth (State's Exhibit l) and Complainant's
mouth (State's Exhibit 2), scrapings from Akuna's right-hand
fingernails (State's Exhibit 3), and a swab sample from Akuna's
right hand (Exhibit 4). Chua~Chiaco tested all of the exhibits
for DNA and also tested Exhibit 3 for blood.

Exhibit 4. Testing of Exhibit 4 showed the presence of
blood, but the blood could not be identified as human in origin.
That meant there may have been no human blood present or that
human blood was present, but at too low a level to detect. DNA
testing of the sample revealed two DNA components, or the DNA of
two individuals. One of the DNA component profiles matched
Akuna‘s DNA profile. No conclusions could be reached regarding
the origin of the other DNA component.

Exhjbit 3. Chua-Chiaco testified that he did not test
the fingernail scrapings for blood because there was a very
limited amount of sample present and he had to choose between
testing it for blood and testing it for DNA. The DNA test was
more important and showed a mixture of two individuals‘ DNA.
Complainant could be included as a possible contributor to the
DNA profile obtained, and Akuna could not be excluded as being a
possible contributor to the profile. Chua~Chiaco saw all the
same DNA characteristics in Exhibit 3 that he had seen when he

examined Complainant's characteristics in Exhibit 2. When asked

9

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how likely it was tiat the Complainant‘s DNA was present in
Exhibit 3, ChuasChiaco said that conservatively, there was a l in
1.2 million chance that it was not Complainant’s. There was more
female DNA than male DNA in Exhibit 3. 0n cross~examination,
Chua~Chiaco stated he could not tell if Exhibit 3 contained blood
and the sample could have been the result of something as small
as a scraps along the skin. Chua-Chiaco testified that there
would probably not be a transfer of DNA from a hug.

Sandra Tam‘s testimony

Sandra Tam, a worker at the victim-witness assistance
division at the City and County of Honolulu Prosecutor‘s Office,
testified that she was present at Prosecutor's interview of
Complainant one or two weeks before trial commenced and she did
not think that Complainant attributed any statements, including
“Do you want to fool around with anyone?“, to Akuna, during the
interview.

Akuna's testimony

Akuna testified that on August 23, 2007, he had been
living at the House for three weeks, helping around the house and
with the pigs. That evening, he was reading in bed when he and
Complainant began talking. While they were talking and looking
at photographs of Akuna's children, Complainant told Akuna, "God,
you got beautiful eyes " Akuna said, "Yeah. My children are
ltalian-Hawaiian-Chinese-Spanish."

Akuna testified that at some point, the generator shut
off and the lights went out. He told Complainant he was going to
go to sleep. Akuna testified that he was sitting up in bed when
Complainant "grabbed my right hand, put my [right] hand between
her legs, and goes, 'Do you want some?'." Akuna testified that
"she had [his] fingers on the . . . end of her shorts toward her
vagina area." He testified that "it felt really awkward 'cause,
God, it‘s like moving too fast, huh. lt was a really fast move.
And I kinda suddenly felt uncomfortable about where that led to."
He had not touched Complainant at all that day, prior to the
incident. Akuna testified that he said, "What?“ And [he] was
just really in shock." He stated that he "told her, 'This is not

right. It’s disrespectful for aunty and for her friends.'"

10

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Akuna pulled his arm away from Complainant, pushed her back, and

told her, "This is not good" and "You need to get out of the
house.“ He told her he would tell Fayne and aunty Rae about it
in the morning. Complainant got up from the couch, heading
toward the kitchen, and Akuna fell asleep. The next thing he
remembered was being woken up and arrested.

Akuna could not tell if there was any blood because it
was too dark and the incident happened so guickly.

Akuna testified that prior to grabbing his hand,
Complainant had not really indicated that she was attracted to
him. Akuna stated that he was not attracted to or sexually
interested in the Complainant. when asked if he ever tried to
touch Complainant's crotch area or put his hands inside of her
panties, Akuna responded in the negative.

Akuna testified that at the time of the incident, he
did not know if Complainant was engaged, but only that she had a
boyfriend.

Motion for Mistrial

After Dr. Salle testified, Defense Counsel moved for a
mistrial, arguing the following with regard to Complainant's
statements to Prosecutor regarding comments Akuna allegedly made

to Complainant at the time of the incident:

The other issue which perhaps necessitates a mistrial
is from last week with the witness issue, [Prosecutor] being
a witness. 1 believe the issue with that and I ~- if
there's some other alternative to solve it without declaring
a mistrial, that's fine. But the problem is there’s a
couple different problems on that. One, there were two
times at which {Prosecutor] put on the record before we
started trial and were read into the record, then they were
even read a second time during the trial on what they are,
statements attributable to my client that [Complainant] had
allegedly told [Prosecutor] Sunday when {Prosecutor] met
with [Complainant] on Sunday, whenever the witness was then
on the stand.

In one of those two statements, [Complainant]
basically flat out denied that she had told [Prosecutor]
that. Something to the extent of, well, it was -- this was
kind of a -~ l forgot the term [Complainant] used, if it was

a perception or something, but it wasn't that.

[Complainant] said that [Akuna] said. That's the problem.
You know. That's why 1 didn‘t want these statements to come
in because this is the problem that explodes from these
statements. [Prosecutor] specifically said that was not a
feeling or something else. ln an ordinary case had it been
a regular person other than [Prosecutor], I could put them

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:tatement. hut §Qrosecutorl is a

f theit .

and

Ol']
pt

was a
can't

say

t ha
1

.‘Ll . Cl' .

{Frosecutcrl said [Complainant}
had told §Prosecutorj of that the first time. That‘s why 1
had only rned about it. The second time {Prosecutorl
called me, sunday night, 1 didn‘t get the message ’til

The second problem,

$`.

Monday morning on it. On the stand {Complainant] said not
only did 1 tell §Prosecutcr§ on Sunday, 1 had told her ~~ 1
t nk {Prosecutor'sl representation -- the court met with

her ten days ago or ten days prior. She never mentioned it.
iComplainant's} representation was 1 think five days prior.
and {Complainant} had told [Prosecutcr] about these
statements, the five or six days prior, whenever
§Complainant] talked to {Prosecutor]. That's another area

that, you know.
1 don't know that we asked {Prosecutor} if this {sicl
was a witness there for the earlier statement. 1 know

{Prosecutor] said on the one on Sunday that she was the only
other person there, but, you know, that‘s a second issue
that 1 would definitely go into on cross»examination and
say, you know, she's not being honest. And this case is all
about the credibility of [Complainant]. That‘s what it
hinges on. That’s everything in this case.

and any attack 1 can have on the credibility of

[Complainant] 1’m going to use. And those are two attacks
that 1 should be able to attack her credibility on. But
because {Prosecutor] is the only witness that 1 can call to
impeach [Complainant], 1 think that would necessitate a
mistrial unless there's some other avenue, you know,
stipulate. 1 mean even if we stipulated, [Prosecutor] would
say that she is still a witness, so.

With regard to the first basis for moving for mistrial,

Defense Counsel explained that the inconsistency between what

Complainant allegedly told Prosecutor prior to trial and what

Complainant testified to at trial was the following:

Regarding

{Complainant]
that [Akuna] -~

[DEFENSE COUNSBL]: 1 believe what
testified to in court was that she never
she never told {Prosecutor] that [Akuna] said "Don't you
want to fool around with anyone?" What [Complainant's]
testimony was was something to the effect of she got that
feeling or something, but he never said that. That's never
a statement that he said because that was the main
inconsistency here.

the second basis, Defense Counsel explained:

[DEFENSE COUNSEL]:

none of that stuff was said.
{Complainant is] embellishing
or adding to her story to try to embellish her story.
second part of that and where 1 think there's an
inconsistency is that she has testified and her earlier
statements were that she never got any feeling that there
was any attraction. There was never any, you know, flirting
or anything going on between them. And then if that‘s the
case though, if she's if her statement was in fact to
[Prosecutor] that he said "Don't you want to fool around
with anyone," then 1 think that could be argued as, you

My argument's going to be
But at this point, yes,
or making up additional things
The

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vnb with her statement that there was
ning back and tcrth.

hnow, being inconui?t
not any flirtino happ

Prosecutor stated that she had no memory of Complainant telling
h>r about Akuna‘s comments in the first meeting.

The circuit court proposed having Prosecutor stipulate
to the statement made on July 27th to her by Complainant
regarding Akuna‘s comments. Prosecutor stated she would have no
problem doing so. However, Defense Counsel stated that he was
opposed to such a stipulation because it would effectively
bolster Complainant's testimony, since the jury would have the
sense that despite inconsistencies in Complainant‘s testimony at
trial and her statements to Prosecutor prior to trial, the State
decided to prosecute. The circuit court proposed informing the
jury that the court had made an FOF regarding what Complainant
told Prosecutor during the second interview. The circuit court

then questioned Complainant in camera:

Q [THE COURT] Okay. Do you remember what you told
{Prosecutor] about what [Akuna} said or didn't say on the,
uh, 24th day of August, 2007 when he was talking to you
about your husband in the National Guard? Do you remember
what he may have told you?

A 1Complainant] 1 remember I told [Prosecutor] that
after the fact everything happened 1 went over what happened

that night and 1 told her that I remember him saying "What
happens, happens."

Q Regarding when people are at boot camp or National
Guard camp; is that right?

A Yes.

Q Um, did [Akuna] say anything that was close to
this, "Don't you want to fool around with anyone?" Do you
remember him saying that?

A Not that I remember. I can‘t remember.

Q You can‘t remember. You understand that I was told
that's what you said to (Prosecutor] that day? Would you be
surprised to know that she remembers you saying that?

A No.

Q What ?

A li she remembers me saying that --

A ~~ then --

Q That's what she said; right?

N(')'l` }*`(_j).l»’. I’I_IBI,,I(`.»\"I`I()N IN WES'I"S IIAV\"A.I°I RIEP()R'I`S AND }’ACIFIC` RI*`.POR'I"EI`{

,?x R i g h t . ’r’ a h ,

Q . . . But if {Prosecutcrj told me in this very court
that monday the 2Bth, not even a day after you talked to her
~- do you understand that ~~

A Um ~ hmm ,
_ ~~ [Prosecutor} told me that you told [Prosecutor]
words -o the effect that {Akuna] said "Don't you want to
fool around with anyone?," that doesn’t refresh your
recollection that's what you told {Prosecutorl?

”Y!O

h All 1 can remember is what 1 told you, not -- I
just told her what 1 know, what l remembered.

Q Okay.

A That's all I can remember.

Q And what do you remember?

A When he said things happen.

Q Things happen?

A Yeah.

Q "Whatever happens, happens"?

A Yes.

Defense Counsel argued that if the circuit court made its

proposed finding,

it would bolster Prosecutor's credibility.

Just before the defense and State rested their cases,

Defense Counsel and Prosecutor both objected to the circuit

court's giving an FOF regarding what Complainant told Prosecutor

at the second interview about Akuna’s comments during the

incident.
called as
her. The

parties'

if not prevent you from

the only witness."

objections and

Prosecutor stated that she would also object to being
a witness to testify regarding what Complainant told
circuit court decided to give the FOF over both
told Prosecutor, "I need to caution you,
arguing that conversation because you are

The circuit court then stated that Prosecutor

was basically barred from making any argument regarding the FOF.

stated to

Just prior to instructing the jury, the circuit court
the jury the following:

The Court has made the following finding of fact,
ladies and gentlemen of the jury. There was an oral

communication between [Complainant] and [Prosecutor] on
Sunday, July 27, 2008. [Complainant] stated to [Prosecutor]
that [Akuna] said to her on August 24, 2007, "Don't you want

to fool around with anyone," or words to that effect.

14

<"~i()'l` F()R l’l.?Bl,I(fYA'l`I'()N IN V\';F`.S'I"'S }'iA\"\//~\I"l RI?,}’(`)R"I"S ANI) PACH*"IC I{I*`.P()R"I`I*`,}{

II. STANDARDS OF REVIEW

A. Judicial Misconduot

"Where judicial misconduct or bias deprives a party of
the impartiality to which he or she is entitled, a new trial may
be required. However, reversal on the grounds of judicial bias
or misconduct is warranted only upon a showing that the trial was
unfair." §§ate v.~§§uge, lO3 Hawari 38, 48, 79 P.3d l3l, 141
{2OOE) (brackets omitted) (quoting Aga v. Hundahl, 78 HawaiU_
23e, s42, ssi P.2d i022, 1034 (i995)>.

B. Harmless Error

HRPP Rule 52(a) provides, in relevant part, that "[a]ny
error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded." The Hawafi Supreme
Court has stated that "[s]uch error, however, should not be
viewed in isolation and considered purely in the abstract. lt
must be examined in light of the entire proceedings and given the
effect to which the whole record shows it is entitled." State v.
SQrattling, 99 HaWafi 3l2, 320, 55 P.3d 276, 284 (2002)
(internal quotation marks, citation, and brackets in original
omitted}. Under the harmless error standard, the appellate court
"must determine whether there is a reasonable possibility that
the error complained of might have contributed to the
c@nvicti@n." state v. Pau1ine, 100 HawaiH_356, 378, 60 P.3d
306, 328 (2002) (internal quotation marks and citation omitted).
"If there is such a reasonable possibility in a criminal case,
then the error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which it may have been based must be
set aside.“ State v. Gano, 92 Hawafi l61, l76, 988 P.2d l153,
ll68 (l999) (internal quotation marks and citation omitted).

"A constitutional error is harmless as long as the
court is able to declare a belief that it was harmless beyond a
reasonable doubt.“ Korean Buddhist Dae Won Sa Temple of Hawaii
v. Sullivan, 87 HaWafi 2l7, 245, 953 P.2d l3l5, l343 (l998)
(internal quotation marks, citation, brackets, and ellipsis

omitted).

15

NO"I` FUR P{FISI_.I(T.»'\'!`!()N IN WES"I"S E~I'A\i\~'.»\l`“l RIBI,’ORTS ANI) PACIFIC REI’(,)R'I"_[T,I{

III. DISCUSSION
Akuna contends the circuit court erred and violated his
constitutional rights to confrontation,* to present a defense,“

to a jury trial, and to a fair trial when the court read its own

v~vj

~CF to the jury regarding Complainant's prior statement. Akuna
maintains that he was denied his right to have the jury, rather
than a judge, find all of the facts and that the error was not
harmless beyond a reasonable doubt because it relates to his
inability to fully impeach Complainant’s credibility, which was
of paramount significance in this case,

Just prior to instructing the jury, the circuit court
stated to the jury the following:

The Court has made the following [FOF], ladies and
gentlemen of the jury. There was an oral communication
between [Complainant§ and [Prosecutor] on Sunday, July 27,
2008. [Complainant] stated to [Prosecutor] that [Akuna]
said to her on August 24, 2007, "Don't you want to fool
around with anyone," or words to that effect.

We agree that in reading the FOF to the jurors, the
circuit court violated Akuna‘s rights to a fair trial and a jury
trial, rights encapsulated in the Sixth Amendment of the United
States Constitution (providing that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury"), and article I, sections 5
and 14 of the Hawafi Constitution (providing respectively that
"[n]o person shall be deprived of life, liberty or property
without due process of law" and "the accused shall enjoy the
right to a speedy and public trial by an impartial jury").

HRE Rule 1102 provides: "The court shall instruct the
jury regarding the law applicable to the facts of the case, but

3 The right to confrontation is embodied in the Sixth Amendment of the
United States Constitution, which provides that "the accused shall enjoy the
right . . . to be confronted with the witnesses against him{.]" That right is
also encapsulated in Article 1, section 14 of the Hawafi Constitution, which
provides that "fi]n all criminal prosecutions, the accused shall enjoy the
"ioht to . . . be confronted with the witnesses against the accused."

"~J

“ The right to Due Process is encapsulated in the Fifth and Fourteenth
Amendments to the United States Constitution. The Fifth Amendment provides
that "[n]o person shall be . . . deprived of life, liberty, or property,
without due process of law." The Fourteenth Amendment provides that no "State

[shall] deprive any person of life, liberty, or property, without due process
of law."

16

NO'I` FOR I’UBl.`I(.".)-*\'I`I()N \\"!i`,S".I"S l~{.'\\’\/'A‘I‘l R.IF)POR'I`S AND PAC`IFIC RIZ'P()I"{"I`ER

shall not comment upon the evidence. lt shall also inform the

(?.§

jury that they are the Xclusive judges of all questions of fact
and the credibility of witnesses.“ "The rationale behind the
Rule is that judicial comment upon evidence risks placing the
court in the role of an advocate." State v. Nomura, 79 HawaFi
&l3, 4l7, 903 P.2d 7l8, 722 (App. l995}. "lt is essential that
the presiding judge endeavor at all times to maintain an attitude
of fairness and impartiality." ld. (internal quotation marks,
citation, and ellipsis omitted).

in Stallworth v. Boren, 99 Hawaii 287, 54 P.3d 923
(App. 2002), this court stated that

[i}t is the jury, not the court, which is the fact~finding

body. lt weighs the contradictory evidence and inferences,

judges the credibility of witnesses, receives expert

instructions, and draws the ultimate conclusion as to the

facts. The very essence of its function is to select from

among conflicting inferences and conclusions that which it
considers most reasonable.

;dg_at 306, 54 P.3d at 942 (quoting Tennant v. Peoria & ?.U. Rv.
_c;_>_._, 321 u.s. 29, 35 (1944>).

"The Hawafi Supreme Court has adhered for over 140
years to the fundamental principle, which lies at the foundation
of jury trial in every country blessed with that institution,
that the jury is to pass upon the facts and the court upon the
law. Thus, the jury is the sole judge of witness credibility and
the weight of the evidence." State v. Brown, 97 Hawafi 323,
333, 37 P.3d 572, 582 (App. 2001) (internal quotation marks and
citations omitted).

The instant case is similar to Hauge. There, during
closing argument, Hague's counsel discussed perceived
inconsistencies between two witnesses’ descriptions of a video
camera and a Hard Rock Café bag:

The video camera itself. Mr. Khatib, in certainty, he
said that he was certain that the video camera Hauge brought
to him to pawn was tan and gold. That is his testimony.
There's no way around that. His testimony is that the video
camera that was attempted to be pawned was tan and gold.

How did the Ordways describe their video camera?
Black and silver. This is not the same camera that was
taken from the Ordways. These are two totally separate
items. But what's happened here is that Mr. Hauge is being
blamed for something he did not take.

17

z`\‘(`.)"l" I~`(')I~I PLFIZ{.'ICI.»*\'I`IC)N `l_N WI§§S'I"S }*IA\\*",~\I‘I RI€}’()R'I`S AN"D PACIFI(T RFI`I’()IR'I"I§R

Mr. Khatih described this hard Rock Cafe bag as being
rihed their Hard Rock Café

hrown aid pa,er. T,, ,rdways 1
bag as being white and plastic.
at this po;nt, the circuit court interrupted [Hauge’s
counsel§:
THE CGURT: Counsel, she says it was paper, okay.
fHauge‘s counsell; And Mrs. Ordway said it was white
and paper, two totally separate descriptions of the
evidance.
[The Statel: Excuse me_

THE CGURT: He said tan and paper. Let’s stick to the
iacts, all right? The jury is asked to disregard that last
remark by counsel.
;d¢ at 46-47, 79 P.3d at 139»4O (ellipses omitted). Hauge was
convicted, id; at 41, 79 P.3d at 134, and on appeal, he argued
that the court's comment, "He said tan and paper," had been
improper because it violated HRE Rule 1lO2. Hauge, 103 HawaFi
at 58, 79 P.3d at 151. The Hawaid.Supreme Court agreed, but
ultimately found that the court's instructions to the jury cured
the improprietyp“ ld; at 59, 79 P.3d at 152.

Although the relevant issue in State v. Crail, 97
Hawari 170, 35 P.3d 197 (2001), was the circuit court's improper
finding of facts in the jury's instructions, Crail provides
guidance in this case, There, after a jury trial, Defendant
Darrel M. Crail (Crail) was convicted of promoting a Dangerous
Drug in the Third Degree and Unlawful Use of Drug Paraphernalia.
;dg at 172, 35 P.3d at 199. The Hawafi Supreme Court summarized

the following relevant background:

The court instructed the jury on August 18, 1999.
1nstruction No. 18 read as follows:

As to Count I, in order for you to find [Crail] guilty
of the offense of Promoting a Dangerous Drug in the

The circuit court instructed the jury as follows:

You must disregard any remark 1 may have made unless the remark
was an instruction to you, If 1 have said or done anything which
has suggested to you that 1 am inclined to favor the claims or
positions of any party of if any expression or statement cf mine
has seem/adi to indicate an opinion relating to which witnesses
are or are not worthy of helief, or what facts are or are not

T

*ahlished, or what inferences should be drawn therefrom, l
instruct you to disregard it.

Hauge, 103 Hawaii at 59, 79 P.3d at 152 (emphases in original).

18

N()'l` F()R I"l.?jB’[_,I C`.‘\']`I()`N `I`N` V/"ICS'!"S I:l§»X¥V/\l‘l REI*‘()R"]`S ANI) I’z\CIfI+`lC REP()R'.I`ER

Third Degree, you must unanimously answer at least one
of the following questions with n "yes" response on
the special interrogatory form which will he provided
t \/ou. ;

Did you unanimously find buyond a reasonable doubt
that §Crail} was in actual or constru1 " '
of any one ,f the following:

l. State’s Exhihit 1~methamphetamine found in the
glass cylindrical nipe located of
¢no't3 in the bathroom of hadroom # l.

Yes_m”“H No _______ “

2. State's Exhibit 2-methamphetamine found in five

2iploc packets that were in a larger ziploc bag,

located on the ;3]ding mattress in bedroom # i.

Yesm”MMMrNo

3. State’s Exhibit 3~methamphetamine found in four
ziploc packets that were in a plastic container
located under the mattr ‘ near the small
refrigerator in bedroom # i.

Yes V_“ No

4. State's Exhibit 4~methamphetamine found on the
Calibron twin beam scale, located on the top of
the refrigerator in bedroom # l.

1f you are not unanimous in finding beyond a
reasonable doubt that [Crail] was in either actual or
constructive possession of at least one of the above
listed items, then you must find [Crail] not guilty of
the offense of Promoting a Dangerous Drug in the Third
Degree.

(Emphases added.) 1n a similar vein, the court instructed
the jury regarding Count 11 as follows:

ks to Count 11, in order for you to find [Crail]
guilty of the offense of unlawful possession of drug
paraphernalia, you must unanimously answer at least
one of the following questions with a "yes" response
on the special interrogatory form which will be
provided to you:

Did you unanimously find beyond a reasonable doubt
that [Crail] was in actual or constructive possession
of any one of the following:

1. State's Exhibit 1-Glass cylindrical pipe
containing methamphetamine residue, found inside

of jeans shorts in the bathroom of bedroom # l.

Yes No__
2. State‘s Exhibit 4-Calibron twin beam scale, dark
green in color, containing methamphetamine
residue, found on top of the small refrigerator

in bedroom # l.

19

,*'\‘(.)'!` l*`(f)li€ iPlS_Bl.,I(Y.A'[`l()N IN WFZS"I"S l~l/\\\'z\l‘l RI¥IP()IT{'I`S ANI) PACII<`IC REP()RTEI@{

YesMm No

€.d

State‘s Exhibit 40»Une iron scraper with both

Yes_MW_Mm NoNW“W~W

if you are not unanimous in finding beyond a
reasonable doubt that {Crail} was in either actual or
~" t ‘ct ve nw ‘“”oa of at least one of the above
'tems, then you must find {Crail} not guilty of

:-» »~ ,

the oi. nee of unlawful possession of drug
paraphernalia.

Instruction No. 20 (emphases added).

In instruction No. 5, the court provided the jury the
following definition of actual and constructive possession;

The law recognizes two kinds of possession: actual
possession and constructive possession. A person who
knowingly has direct physical control over a thing, at
a given time, is then in actual possession of it.

A person who, although not in actual possession,
knowingly has both the power and the intention, at a
given time, to exercise dominion over a thing, either
directly or through another person or persons, is then
in constructive possession of it.

;d; at l76-77, 35 P.3d at 203~O4 (footnOte Omitted).

Reviewing Crail‘s argument for plain error, id¢ at l80,
35 P.3d at 207, the supreme court found that the circuit court
harmfully erred by instructing the jury in Instructions 18 and 20
as to the places from which the exhibits were recovered or

located, as opposed only to the identification of the eXhibits.

Id. at l8l, 35 P.3d at 208. At trial, Crail had put in issue the

location of all the drugs recovered because he claimed to be
unaware of the presence of any drugs in the residence. ld; at
180-82, 35 P.3d at 207-O9. The supreme court vacated the
judgment and sentence and remanded the case for disposition
consistent with its opinion. ld; at l83, 35 P.3d at 2l0.

In the instant case, by finding before the jury that
"{tjhere was an oral communication between [Complainant] and
[Prosecutor] on Sunday, July 27, 2008," and "[Complainant] stated
to [Prosecutor] that [Akuna] said to her on August 24, 2007,

‘Don‘t you want to fool around with anyone,' or words to that

';`\'()'l` l*`('i)i". l’l?`I'%I.I(I/X"I`I()N IN W !:",S"l"'."§ HA\V.=XI‘ly RIi'fl’()]'{'l`S ANI) PACYlFl_lC RI"`,P()RTEI{

effect,“ the circuit court violated HRE Rule llO2‘ and usurped
the jur*‘s role as fact~finder. lt was the jury's prerogative,
4¢'

not the court's, to decide whether the State had proven that

o
§
j
n
V””‘

,

/`ainant told Prosecutor that Akuna had made the subject
statement. The circuit court‘s other instructions to the jury
did not cure the error, There were no instructions regarding the
FOF read, without explanation, to the jury. Moreover, the
circuit court‘s instructions as given were irreconcilably
inconsistent on how the jury was to treat the FOF. On the one
hand, the jury was told that, "You are the exclusive judges of
the facts of this case." Gn the other, they were also
instructed:

You must also disregard any remark 1 may have made, unless
the remark was an instruction to you.

If I have said or done anything which has suggested to
you that l am inclined to favor the claims or positions of
either party, or if any expression or statement of mine has
seemed to indicate an opinion relating to which witnesses
are, or are not, worthy of belief or what facts are or are
not established or what inferences should be drawn
therefrom, 1 instruct you to disregard it.

Although the circuit court apparently intended to place before
the jury the substance of Complainant's statements to Prosecutor
without placing Prosecutor on the stand, these instructions may
have caused the jury to disregard the FOF and thereby undercut
Ahuna's credibility argument and confused their consideration of
the FOF\

Given the contradictory nature of the instructions and
because the FOF comprised evidence that may have cast doubt upon
Akuna's and/or Complainant's credibility and because credibility
was highly significant in this case, we cannot say that the
circuit court's error was harmless beyond a reasonable doubt.

Given our holding on this issue, we need not address

the remaining points of error.

6 The prohibition against judicial comment on the evidence in HRE Rule

1102 is not limited to jury instructions. Hauge, 103 Hawafi at 59, 79 P.3d
at 152 (citing to HRE Rule llO2).

21

N()'l` F(,`)l? PI_,EyBL.ICA'FIV(`)N' lN WIFYS'I"S H'AVVAVI Rl§l’(`)l~l'lf`$ ANI) I’»‘\CIFIC 'R],".I’()RTEI{

IV. CONCLUSION

We vacate the Judgment of Conviction and Sentence filed
in the Circuit Court of the First Circuit on November 24, 2008
and remand this case for a new trial consistent with this
opinion.

DATED: Honolulu, Hawari, February 23, 20l0.

on the briefs:

Karen T. Nakasone, ,,~

Ueputy Public Defender, - 6z?

for Defendant-Appellant. `
Presiding Judge

Donn Fudo,
Deputy Prosecuting Attorney,

City and County of Honolulu,
for Plaintiff-Appellee. ‘/ "
e

Associate Ju

22