State v. Brown.

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Electronically Filed

Supreme Court

SCWC-XX-XXXXXXX

25-JUL-2019

07:57 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

WALTER BROWN,

Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-XX-XXXXXXX; CR. NO. 13-1-1006)

JULY 25, 2019

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,

DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY WILSON, J.

Petitioner/Defendant-Appellant Walter Brown (“Brown”)

appeals his assault conviction on the grounds that his

constitutional right to confront an adverse witness was

violated. A jury found Brown guilty of one count of assault in

the second degree under Hawaiʻi Revised Statutes (“HRS”) § 707-

711(1)(a) (2014); he was sentenced to a term of probation of

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four years with special terms and conditions. The Intermediate

Court of Appeals (“ICA”) affirmed the Circuit Court of the First

Circuit’s (“circuit court”) judgment and sentence. Brown

contends that his constitutional right to confrontation was

violated when the circuit court refused to allow cross-

examination of the complaining witness on two topics relevant to

her bias, interest, or motive for testifying against him.

Specifically, Brown argues he should have been permitted to

cross-examine the complaining witness regarding her pending

misdemeanor assault charge arising from the same incident for

which he was charged, and her probation status resulting from a

separate assault charge.

Under the constitutions of the United States and the

State of Hawaiʻi, the right to confront witnesses is fundamental

to a fair trial. U.S. Const. amend. VI; Haw. Const. art. I, §

14. When a trial court errs by violating that right, a

conviction obtained at trial will be upheld only if the error

was harmless beyond a reasonable doubt. In this case,

Respondent/Plaintiff-Appellee State of Hawaiʻi (“the State”)

concedes that Brown’s constitutional right was violated, but

contends the error was harmless beyond a reasonable doubt.

Because the error deprived the jury of information about the

complaining witness, the exclusion of which might have

contributed to its decision to convict, see State v. Acacio, 140

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Hawaiʻi 92, 98, 398 P.3d 681, 687 (2017), the violation of

Brown’s right to confrontation was not harmless beyond a

reasonable doubt.

I. BACKGROUND

Brown was charged with one count of assault in the

second degree and one count of assault in the third degree as a

result of a fight at a restaurant in Honolulu on February 20,

2013, at around 1:30 p.m. The fight involved Brown, his

pregnant wife (“Wife”), and his two daughters from a previous

relationship, one of whom is the complaining witness (“CW”) and

the other of whom is CW’s sister (“Sister”). CW and Sister were

at the restaurant to meet their mother (“Mother”). The facts

are disputed. CW and Sister provided testimony which portrayed

Brown as the initial aggressor. Brown and Wife testified that

Brown acted in self defense and did not initiate the

altercation.

A. State’s Motion in Limine and Defense’s Notice of Intent

Regarding Prior Bad Acts of CW

Prior to trial, the State filed a motion in limine to

exclude any prior bad acts of its witnesses. In its motion, the

State sought an order compelling Brown to disclose “the date,

location and general nature of any prior bad acts of any of the

State’s witnesses, if any, that the Defendant intends to

introduce or refer to during cross-examination of any State’s

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witness or during the direct examination of any defense witness”

and excluding or limiting such evidence under Hawaiʻi Rules of

Evidence (“HRE”) Rules 401, 402, and 403.

Brown similarly filed a pretrial notice of intent to

introduce evidence of the following five incidents or facts

relating to CW, members of the public, and members of her

family: (1) in 2013, CW was charged with harassment stemming

from an incident in which she allegedly threw a soda can into a

driveway where people had gathered for a birthday party while

yelling insults; (2) in 2010, CW was charged with terroristic

threatening in the second degree for an incident in which she

allegedly threatened to kill Mother, to which CW later pleaded

no contest to an amended charge of harassment; (3) on February

20, 2013, CW was arrested and charged with assault in the third

degree against Wife and assault in the third degree against

Brown for conduct arising out of the incident at the restaurant;

(4) in 2013, CW was arrested and charged with abuse of family or

household members arising from an incident in which she

allegedly struck her daughter in the face, to which she later

pleaded guilty to a charge of assault in the third degree; and

(5) CW was under misdemeanor probation supervision as a result

of her plea to the assault in the third degree charge arising

from the assault of her daughter.

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At the pretrial hearing to address the State’s motion

in limine and Brown’s notice of intent,1 the circuit court denied

Brown’s motions to admit evidence of the two assault charges

arising out of the incident at the restaurant and to admit

evidence that CW was on probation. However, the circuit court

granted Brown’s motions to introduce evidence of the three past

incidents of violence,2 but with a limitation that defense

counsel could admit evidence of only two of the three incidents,

as introducing evidence of all three would be more prejudicial

than probative.

In denying Brown’s motion to admit the evidence of the

charges against CW arising out of the incident at the

restaurant, the circuit court stated that the arrest at the

restaurant was “irrelevant to whether or not the State can make

its burden of proof as to the material elements as to the

defendant. And so I think that interjecting the fact that the

complaining witnesses were arrested confuses the jury and

misleads them in an unfair way.” As to the evidence that CW was

on probation for the 2013 assault, the circuit court said that

it had “no probative value whatsoever.”

1

The Honorable Edward H. Kubo, Jr. presided.

2

That is, the court allowed introduction of evidence relating to

the 2013 harassment charge, the 2010 harassment conviction, and the 2013

third degree assault conviction.

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During the first day of trial, defense counsel renewed

the motion to present evidence that, as a result of the fight at

the restaurant, CW was arrested and charged with assaulting

Brown and Wife:

[The defense: ]To not be able to do that presumes or

gives the jury -- jury does not get the complete story

because the incident and the circumstances of the case

arise out of the same facts and circumstances. I believe

it’s important for our defense and as well as the jurors to

know that even though Mr. Brown sits here as the accused,

there is [sic] cross-complaints.

For example, if we were to use the defense of mutual

affray, your Honor, it’s a stronger defense if you were to

show that she too was charged by the police, your Honor,

and she too was arrested, your Honor.[3] And so we believe

that by not allowing us to go into that, to delve into that

area, your Honor, restricts the defenses that we may be

able to assert in this case.

The circuit court denied the request on the grounds that CW’s

culpability arising from her actions during the incident was

irrelevant:

[The Court: ]This trial deals with the guilt or innocence

of Mr. Walter Brown. The jury will be advised that they

are to consider this evidence as to him and no one else.

To bring in any outside information of another being

arrested raises a presumption of guilt of that other person

which is not being tried in this case at this time. That’s

for another court to decide. What is sufficient is the

guilt or innocence of the defendant based on the evidence

and this indictment and two counts, and so this Court will

deny the defense’s request to bring in evidence of anyone

else’s arrest because that’s neither here nor there, nor is

it the purview of the jury to decide the guilt or innocence

of anyone else.

During the second day of the trial, counsel for the

defense again renewed its position that the defense should be

3

At trial, the jury was instructed about mutual consent as a

defense to assault in the third degree.

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allowed to question CW regarding the fact that she was charged

with assaulting Brown and Wife. Defense counsel argued that the

evidence “goes to bias, motive, and interest . . . with respect

to her testimony.” Defense counsel also noted his understanding

that the prosecutors had dismissed the case against CW for

assaulting Brown two days earlier.4 The court denied the request

to reconsider its ruling after expressing concern about creating

a “mini trial[] within a trial.”

B. Trial, Conviction, Sentence, and New Trial Motion

At trial, CW testified that she and Sister planned to

meet Mother at the restaurant. CW testified that she and Sister

saw Brown and Wife as they entered, and that he came toward

them, grabbed them, and pushed them out of the restaurant’s

entrance, causing CW to fall. A fight ensued, during which CW

said Brown punched, kicked, stepped on, and shook her and

Sister, and she pushed, kicked, and punched Brown in defense of

herself and Sister. At one point, CW testified, Brown punched

her underneath the left jaw area. She denied punching Wife

during the altercation. Sister also testified that Brown

4

According to Brown’s notice of intent, CW was charged with two

counts of assault in the third degree for assaulting Brown and Wife shortly

after the melee at the restaurant that forms the basis of the present case.

According to defense counsel, the State dismissed CW’s charge for assault in

the third degree against Brown the day before the start of Brown’s trial,

leaving her with one outstanding charge of assault in the third degree at the

time she testified.

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grabbed her and CW as they entered the restaurant, that he

punched CW in the jaw and slammed Sister onto the ground in the

ensuing fight, and that she and CW hit Brown in self-defense.

Pursuant to the court’s pre-trial order, CW was

questioned about two prior incidents of misconduct. She

admitted to pleading guilty to third degree assault in the 2013

case involving her daughter, and to pleading guilty to

harassment in the 2010 case involving the threats against

Mother, although she denied threatening to kill her. She was

also questioned about an entry she made on Mother’s Facebook

page regarding Wife and the February 20, 2013 fight in which she

said “bahahahaha fckn silly girl gave birth. Now let’s see who

will laugh. Talk shit, get hit. I ain’t sca[r]e[d]. . . .

Let’s do it again, me and you round two. Oh wait, round one

wasn’t finished.”

Brown gave a different account of the events with

regard to who was the initial aggressor and whether he was the

cause of CW’s jaw injury. Brown testified that as his family

was leaving the restaurant, he saw CW and Sister near the door.

He saw that they were angry, and he tried to block them from

entering the restaurant and to push them backwards out the door.

He testified that CW slipped and fell numerous times, and that

the first time she fell, she hit her head on a table outside the

restaurant. At one point, Wife told him CW had hit her. He

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moved closer to Wife to protect her. He testified that CW and

Sister punched and scratched him, but he denied ever punching,

choking, slamming to the ground, or stomping on CW or Sister.

Wife testified that she first saw CW and Sister at the door of

the restaurant, punching and scratching Brown. She testified

that CW punched her in the face, and that at some point after CW

punched her, CW slipped and fell forward, hitting her head on a

table. Wife testified that Brown tried to hold back his

daughters, but that at no point during the incident did he

choke, pick up and slam to the ground, stomp on, or punch them.

Two eyewitnesses and a physician that treated CW after

the incident also testified. The security guard who was working

at a building directly behind the restaurant testified that he

saw Brown hit CW on the left side of her jaw. The security

guard was about 65 to 70 feet away at the time of the hit. He

testified that he did not see CW attack Brown in any way. The

second witness, the manager of the restaurant, testified that

around 1:30 p.m., “all of a sudden there was this big commotion”

in the restaurant, “and everybody started running outside[,]” so

he followed them out and saw Brown attacking CW. He testified

that he saw Brown punch CW “in the chin.” Both the security

guard and the manager testified that they did not see the

initial phase of the encounter between Brown and CW.

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An emergency room physician testified that she treated

CW shortly after the incident at the restaurant. She testified

that she conducted multiple CT scans and concluded that CW had

suffered a jawbone fracture, somewhere roughly in the left jaw

area. CW also had some loose teeth around the jawbone fracture

and some scrapes and swelling to her face. The physician did

not testify as to a possible cause of the fracture.

At the end of the State’s case, the court granted

Brown’s motion for acquittal on the second count of assault in

the third degree. The court found that Sister’s testimony was

insufficient to prove a prima facie case of third-degree assault

against her. The jury found Brown guilty on the first count of

assault in the second degree; he was sentenced to four years

probation.

Brown moved for a new trial on the basis of alleged

perjured testimony by Mother. During a hearing on the new trial

motion, defense counsel raised the exclusion of the criminal

charges against CW and her probation status as an additional

reason to grant a new trial. The circuit court denied the

motion.

C. Appeal

Brown appealed the judgment of conviction to the ICA

on the basis that the circuit court’s refusal to admit the

evidence of CW’s pending charges and probation status violated

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his constitutional right to confront the witnesses against him,

and that the court’s constitutional error was not harmless

beyond a reasonable doubt.

The ICA affirmed Brown’s conviction. State v. Brown,

No. CAAP-XX-XXXXXXX, 2017 WL 2829280, at *9 (App. June 30, 2017)

(mem.). The ICA held that even if the exclusion of the evidence

of the charges against CW and her probation status was improper,

the error was harmless. Id. at *8. It held that sufficient

evidence was presented at trial for the jury to assess CW’s

credibility, and that she had been subject to “extensive cross-

examination . . . on subjects including who was the first

aggressor, CW’s previous convictions for harassment and assault

against family members, and her relationship with Brown.” Id.

at *9. Although the ICA recognized that CW’s testimony was

important to the prosecution’s case, and that there was no other

way for the jury to know she had been charged or was on

probation at the time of trial, it nonetheless held that “[t]he

testimony of three witnesses other than CW to the assault

against her as well as the physician establishing the extent of

her injuries amounted to a very strong, if not overwhelming,

case.” Id.

Chief Judge Nakamura dissented. Id. (Nakamura, C.J.,

dissenting). He concluded that the pending charge against CW at

the time of her testimony and the fact that she was on probation

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“created a potential interest, motive, and bias for the CW to

testify falsely that was different in nature and character than

revealed by the other evidence permitted by the Circuit Court.”

Id. He identified that interest as “her own self-interest in

avoiding criminal punishment[.]” Id. He further reasoned that

“[t]he evidence excluded by the Circuit Court was the only

viable means for Brown to impeach the CW with her interest,

motive, and bias to shape her testimony to avoid her own

criminal punishment.” Id. Because the disinterested witnesses

to the assault did not observe the entire interaction between

Brown and CW, Chief Judge Nakamura was unable to conclude that

the decision to exclude the contested evidence was harmless

beyond a reasonable doubt. Id. at *10.

Brown filed an application for a writ of certiorari,

contending that the ICA erred in concluding that his right to

confrontation was not violated by the circuit court’s exclusion

of the evidence about CW.

II. STANDARD OF REVIEW

A trial court’s ruling on the question of whether

“proffered evidence is probative of bias, interest or motive is

reviewed under the right/wrong standard.” Acacio, 140 Hawaiʻi at

98, 398 P.3d at 687 (quoting State v. Balisbisana, 83 Hawaiʻi

109, 114, 924 P.2d 1215, 1220 (1996)).

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III. DISCUSSION

A. The trial court violated Brown’s right to confrontation by

barring cross-examination as to CW’s pending charges arising

from the same incident, as well as to her supervised probation

status resulting from an earlier assault conviction.

Article I, section 14 of the Hawaiʻi Constitution

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against the accused[.]” See also U.S. Const. amend. VI; Davis

v. Alaska, 415 U.S. 308, 316-317 (1974) (“[T]he exposure of a

witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of cross-

examination.”). “[T]he right to confront a witness is not

satisfied simply by any cross-examination, but instead, . . .

the cross-examination must be sufficient and meaningful.” State

v. Nofoa, 135 Hawaiʻi 220, 231, 349 P.3d 327, 338 (2015)

(emphases in original). The defendant’s right to sufficient and

meaningful cross-examination includes the opportunity to show

that a witness is unreliable due to bias.

[A] criminal defendant states a violation of the

Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination

designed to show a prototypical form of bias on the part of

the witness, and thereby “to expose to the jury the facts

from which jurors . . . could appropriately draw inferences

relating to the reliability of the witness.”

Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting

Davis, 415 U.S. at 318). “The credibility of a witness may be

attacked by evidence of bias, interest, or motive[,]” HRE Rule

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609.1(a), and such evidence “is relevant if it has ‘any tendency

to support an inference of the witness’ disposition or tendency,

consciously or unconsciously, to slant testimony one way or the

other, from the straight and true.’” State v. Acker, 133 Hawaiʻi

253, 299, 327 P.3d 931, 977 (2014) (emphasis in original)

(quoting State v. Levell, 128 Hawaiʻi 34, 40, 282 P.3d 576, 582

(2012)).

Defense counsel was forbidden by the court’s order

from questioning CW on the charges against her arising from the

same incident and the court precluded the defense from

introducing evidence that she was on probation for the charge of

assault in the third degree. Both matters were relevant to her

bias or motive. “[G]iving 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.” Acacio, 140 Hawaiʻi at 101, 398 P.3d

at 690 (quoting Levell, 128 Hawaiʻi at 41, 282 P.3d at 583).

Exclusion of the criminal charges against CW and the

fact that CW was on probation deprived the jury of evidence that

she had an interest to shape her testimony against Brown to

avoid punishment and to prevent the possible revocation of her

probation. The jury thus lacked “sufficient information from

which to make an informed appraisal of the complainant’s motives

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and bias” as to her testimony. Levell, 128 Hawaiʻi at 40, 282

P.3d at 582 (brackets omitted) (quoting State v. Marcos, 106

Hawaiʻi 116, 121, 102 P.3d 360, 365 (2004)). In short, Brown was

not afforded the cross-examination to which he was

constitutionally entitled to confront CW about her motives or

bias favoring the prosecution.5

Thus, the circuit court erred when it concluded that

evidence that CW was arrested and charged with crimes related to

the same incident was irrelevant, confusing, and misleading;

similarly, the conclusion that evidence of CW’s probation had

“no probative value whatsoever” was error.

B. The trial court’s violation of Brown’s right to

confrontation was not harmless beyond a reasonable doubt.

Having held that Brown’s constitutional right was

violated, we next determine whether the constitutional error was

harmless beyond a reasonable doubt. In his opening brief, Brown

argued that the error was not harmless because, “except for the

testimonies of [Brown] and [Wife], there was no other evidence

5

We note that the State conceded at oral argument that “cross-

examination on CW’s probation status, and her charges -- assault charges

stemming from this incident should have been allowed. Not doing so was

error.” Oral Argument, State v. Brown (SCWC-XX-XXXXXXX) at 28:11-28:23,

http://oaoa.hawaii.gov/jud/oa/18/SCOA_020718_SCWC_15_354.mp3. However, the

State contended that this error was harmless because there was “independent

evidence to establish the elements of the offense in this case.” Oral

Argument at 28:27-28:32.

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with which to impeach [CW’s] testimony” regarding the cause of

her jawbone fracture.

A trial court’s denial of a defendant’s constitutional

right to impeach a witness for bias, motive, or interest is

subject to the harmless beyond a reasonable doubt standard.

Acacio, 140 Hawaiʻi at 98, 398 P.3d at 687. This standard is

applied by “examin[ing] the record and determin[ing] whether

there is a reasonable possibility that the error complained of

might have contributed to the conviction.” Id. Factors

determinative of whether a violation of the constitutional right

to impeach might have contributed to the conviction include:

“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 Hawaiʻi at 42,

282 P.3d at 584 (quoting Balisbisana, 83 Hawaiʻi at 117, 924 P.2d

at 1223).

Here, there is a reasonable possibility that the

circuit court’s constitutional error might have contributed to

Brown’s conviction. As an eyewitness to the entire event and

the complaining witness in the case, CW was the most important

witness for the prosecution. She gave a firsthand account of

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the entire incident, testifying about specific acts that met the

elements of assault. Brown was not permitted to cross-examine

CW about the criminal charges she faced and her probation status

that placed CW in immediate legal jeopardy and possibly gave the

State leverage over her testimony. Were she convicted of the

third degree assault charge against Wife and had her probation

from her previous third degree assault charge been revoked, CW

could have been sentenced to up to two years in prison. See HRS

§§ 707-712(2), 706-663, 706-625(3), (5) (2014). On the other

hand, CW may have believed that providing testimony at trial

that Brown was the first aggressor would lessen the likelihood

the prosecution would pursue the pending charge against her.6

Impeachment of such an important witness might have affected the

jury’s decision as to whether to credit Brown’s assertion of

self-defense. Thus, notwithstanding the evidence submitted by

the State, it cannot be concluded beyond a reasonable doubt that

the circuit court’s erroneous decision to preclude Brown from

impeaching CW for bias, interest, or motive did not contribute

to Brown’s conviction. The error was not harmless.

The Dissent concludes that the constitutional error

was rendered harmless beyond a reasonable doubt by the

corroborative testimony of the two eyewitnesses and the

6

Per defense counsel, one of the charges against CW had already

been dismissed shortly before the Brown’s trial.

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defense’s “otherwise extensive cross-examination of CW[.]”

Dissent at 11. Its analysis is similar to that of the ICA,

which found that the State presented “a very strong, if not

overwhelming, case” that Brown committed assault. Brown, 2017

WL 2829280, at *9. However, the ultimate question is whether

the erroneous exclusion of additional evidence could have

reasonably affected the jury’s verdict.

The two eyewitnesses testified that they did not

witness the entire interaction between Brown and CW.7 The

security guard testified that he was 65 to 70 feet away from the

fight, and the manager testified that the scene was a “big

commotion” and that he ran back inside at one point to call the

police. In contrast, Brown and Wife offered testimony that

directly contradicted CW’s explanation of the cause of injury,

contending that she slipped and hit her head on a table.

Evidence that cast doubt on CW’s credibility may have affected

the jury’s conclusion as to her description of the events. The

jury was deprived of strongly probative evidence relating to its

choice between the conflicting accounts of how CW’s injury was

caused. While CW was cross-examined about her relationship with

7

The Dissent notes that the security guard testified that he

observed “the events immediately preceding the punch” and that CW had not

attacked Brown. Dissent at 16 n.2. However, the security guard did not

witness the part of the fight during which, according to Brown’s account, CW

slipped and hit her head on a table.

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Brown and Wife and her propensity for violence, the court

prevented the defense from eliciting evidence about her interest

in avoiding future criminal prosecution and punishment. Nothing

in CW’s testimony indicated that the State had leverage over her

in the form of pending charges or the ability to revoke her

probation. And as the Dissent recognizes, “no other witness

testified as to CW’s misdemeanor probation status or that she

had also been charged with assault stemming from the same

incident.” Dissent at 11. Thus, no other evidence conveyed the

degree of CW’s possible interest in slanting or falsifying her

testimony to gain favor with the prosecution and to avoid

immediate legal jeopardy, and accordingly “the jury did not have

sufficient information from which to make an informed appraisal

of the CW’s motive.” Acacio, 140 Hawaiʻi at 101, 398 P.3d at

690. Notwithstanding the State’s evidence against Brown, the

conclusion cannot be reached beyond a reasonable doubt that the

unconstitutional exclusion of evidence about CW’s “significant

incentive to curry favor with the State[,]” Birano v. State, 143

Hawaiʻi 163, 192, 426 P.3d 387, 416 (2018), did not contribute to

the jury’s decision to convict.

IV. CONCLUSION

For the foregoing reasons, we vacate the July 31, 2017

judgment of the ICA and the March 25, 2015 Judgment of

Conviction and Probation Sentence of the Circuit Court of the

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First Circuit, and remand this case to the circuit court for

proceedings consistent herewith.

Jacquelyn T. Esser /s/ Sabrina S. McKenna

(William H. Jameson, Jr.

on the brief /s/ Richard W. Pollack

and application)

for Petitioner /s/ Michael D. Wilson

Sonja P. McCullen

for Respondent

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