State v. Delos Santos

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lN THE SUPREME COURT OF THE STATE OF HAWAIT

--- o0o ---

STATE OF HAWAYI, Petitioner-Plaintiff-Appellee,

vs.

Respondent-Defendant-Appellant.

KENNETH DELOS SANTOS,

NO. 29337

§

CERTIORARI TO THE lNTERMEDIATE COURT OF APPEH§§ ;:,

(FC-CR NO. 08-1-l3l0) §§

AUGUST 19, 2010 w

§

MooN, C.J., NAKAYAMA, DUFFY AND RECKTENWALD, m

AND ACOBA, J., CONCURRING SEPARATELY il

g QH

OPlNION OF THE COURT BY NAKAYAMA, J.

On April l, 20l0, this court accepted a timely

application for a writ of certiorari filed by petitioner-

(“the prosecution”), on

plaintiff-appellee, the State of HawaiH

20l0, requesting that this court review the

2009 judgment

February l8,

November 24,

lntermediate Court of Appeals’

(\\'ICAII)

on appeal, entered pursuant to its November 9, 2009 Memorandum

Opinion reversing the Family Court of the First Circuit's

(“family court”) August 6, 2008, Judgment of Conviction and

Oral argument was held on June 3, 20l0.

Sentence.1

In its application for writ of certiorari before this

l The Honorable Rhonda A. Nishimura presided.

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court,2 the prosecution presents the following question:

Did the ICA gravely err in holding the family court

was wrong by admitting into evidence a police officer's

testimony regarding the complainant's hearsay statement as

an excited utterance?

For the following reasons, we hold that the lCA gravely

erred by determining that the complainant's statement that “my

boyfriend beat me up” was not admissible as an excited utterance.

we also hold that the admission of this statement does not

violate the confrontation clause of article I, section 14 of the

Hawaid_Constitution. Therefore, we vacate the ICA’s judgment on

appeal and remand to the family court for a new trial.

I. EHM3KEHRQLH§D

Kenneth Delos Santos (“Delos Santos”) was convicted of

Abuse of Family or Household Members, in violation of HawaiU_

Revised Statutes (HRS) § 709-906 (Supp. 2O08).3 The prosecution

claimed that on March 26, 2008, Delos Santos struck his

girlfriend (“the Complainant”) in the face and stomped on her

thigh in their apartment in Waikiki. The crucial piece of

2 Delos Santos did not file a memorandum in opposition to

certiorari.

3 HRS § 709-906 provides in relevant part:

(l) lt shall be unlawful for any person, singly or in

concert, to physically abuse a family or household member .

For the purposes of this section, “family or household

member” means . . . persons jointly residing or formerly

residing in the same dwelling unit.

2

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evidence supporting Delos Santos' conviction was Officer Jason

Kubo's (“Officer Kubo”) testimony summarizing the Complainant’s

statements when he arrived at the scene shortly after the

incident. The family court admitted these statements as excited

utterances. The relevant testimony is described below.

A. August 5, 2008, Hearing

The family court held a Hawafi Rules of Evidence (HRE)

Rule l04 hearing in part to determine the admissibility of the

Complainant’s statements to the police. At the hearing, two

witnesses testified.

The Complainant testified that Delos Santos was her

boyfriend and that they were living together in a hotel in

Waikiki at the time of the incident. She recalled that she and

*Delos Santos were involved in an incident on March 26, 2008. She

did not remember calling the police, making a written statement

to the police, or “anything that happened that night[.]”

The prosecution then called Jason Kubo, an officer of

the Honolulu Police Department. He testified that he responded

to an “argument type call” at approximately l:07 in the morning.

When he arrived, he “met with [s]ecurity down stairs.” He then

went up to the room. When he arrived at the room with security,

he knocked on the door, entered the room, and observed the

Complainant and Delos Santos. Officer Kubo described the

Complainant’s emotional state as “clearly in a state of fear and

crying.” Officer Kubo “immediately” spoke with her, and she

“basically said that her boyfriend beat her up.” ‘The deputy

prosecuting attorney also elicited the following testimony from

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Officer Kubo:

Q. ls that specifically what she said?

A. Yes -- well, after speaking with her and getting

the full facts and circumstances, basically she said she was

arguing with Mr. Delos Santos about some other matters and

while in the room he struck her once in her face hitting her

in her jaw with enough force to cause her to fall.

While on the ground, the victim actually said

that while lying on the ground he was -- he had stomped on

her right thigh several times causing pain.

Officer Kubo testified that her emotional state did not

change at any point during this interaction, and that she

“continued crying and at all times {he] kept trying to calm her

down.” Officer Kubo also obtained a signed written statement

from the Complainant.“ He testified that he “had to keep calming”

the Complainant down.

On cross-examination, Officer Kubo testified that the

incident occurred at l:O0 a.m. and that he arrived at the hotel

at around l:l0 in the morning. During his interview with the

Complainant, he asked a series of questions listed on the written

statement, including the question “what happened.” He also

testified that “being a police officer,” he wanted the

Complainant to answer the questions on the written statement.

At the close of the hearing, the trial court determined

preliminarily that the prosecution laid the proper foundation to

admit the statements under the excited utterance exception to

hearsay. The court stated that:

What we have down is the Complaining Witness' demeanor

4 The written statement was not entered into evidence at trial and

neither party has cited to the written statement in the application to this

court or in their briefs to the ICA. Officer Kubo testified that the written

statement was consistent with what the Complainant told him.

4

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during her utterances. It was not the situation where this

is a lengthy narrative or lengthy recitation, that he did

observe her demeanor, that she was continuously crying, that

he attempted to calm her down.

B. August 6, 2008, Trial

At trial, the prosecution called the Complainant and

Officer Kubo as witnesses. The Complainant testified that Delos

Santos was her boyfriend at the time of trial and the incident.

They lived together at the time of the incident at a hotel in

Waikiki. She testified that she did not remember anything that

happened on the night of the incident. She testified that she 0

woke up the next afternoon in Delos Santos' car feeling pain from

2 a hangover and that her legs were sore from rollerblading.

On cross-examination, she testified that she did not

remember anything because she drinks a lot, and was drinking on

the night of the incident. She did not remember how much she

drank that night, but remembered drinking at a hotel and then a

bar.

Officer Kubo also testified at the trial. His

testimony was similar to the Rule 104 hearing, with some

differences. He testified that he received a call from dispatch

at “[a]pproximately l -- about l:O5” and that it took him a “few

minutes” to get to the hotel. He testified that he arrived at

the hotel “shortly after about l:O5.” He met with security

downstairs and took the elevator to the room with security and

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other officers.5 When arriving at the room, he met with the

Compfainant, Delos Santos, and another waiting security officer.

When he arrived, Delos Santos was in the threshold of the door to

the hotel room. He testified that he went in the room to

investigate a crime. After entering the room, Officer Kubo

noticed that the Complainant was “really shaken, crying and

appeared to be in a lot of pain.” He also observed her limping.

Officer Kubo testified that before the Complainant said anything,

he “asked her what happened when [he] went in there ”

Officer Kubo testified that he asked her “what happened” because

of “the apparent pain that she was in and also for officer safety

reasons . . . 1V At the time he asked, the Complainant was

“crying” and “shaken[.]” Over objection, Officer Kubo testified

that she responded that “my boyfriend beat me up.” He then

`“walked with her further into the room, [and] knowing that she

was in pain also, {he] wanted to sit her down.” He walked her to

a table “inside the room” and “sat her down.” He then asked

“what do you mean[.]” The deputy prosecuting attorney elicited

the following testimony about the conversation:

l

Q. And at the time you asked her, what do you mean,

why did you ask her that question?

A. 1 need to know what happened, especially for our

safety-wise also in there.

Q. And at the time that you asked her what

happened, what was her emotional state like?

A. Still she was shaken, crying. And I needed a

lot of time to try to calm her down also,

Q. And how did she respond to your question, what

do you mean?

~k ~k *

5 He testified that none of the other officers met with the

Complainant,

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A. She basically said that she got into an argument

with her boyfriend and while inside the apartment -- hotel

room, rather, he punched her once in the face with enough

force to her to fall onto the ground. While on the ground,

he stomped on her right thigh.‘

During his conversation with the Complainant at the

table, he could see the right side of “her lower chin area

starting to swell” and that her chin had “a red mark ”

She also “kept favoring her leg” and he noticed a “two-inch-by-

two-inch red mark” on her right thigh area. The mark was

“circular.” He also noticed “slight abrasions to her knee.”

Officer Kubo left the room approximately forty-five minutes after

he met the Complainant, and testified that the Complainant’s

emotional state did not change during that period. He testified

that the Complainant “had no smell of alcohol and she -- other

than being scared, frightened, crying and in pain, . . . appeared

totally sober to me.” Additionally, he testified that the

Complainant was unsteady on her feet when he left because of the

pain to her right thigh.

At the close of trial, the jury found Delos Santos

guilty of Abuse of Family and Household Members, and the family

court subsequently placed Delos Santos on probation for two years

and sentenced him to ten days in prison with credit for time

already served. The family court stayed the sentence pending

appeal, Delos Santos subsequently appealed the trial court’s

judgment.

6 We refer to the Complainant’s initial statement that “my boyfriend

beat me up” as her “first statement” and her response to the question “what do

you mean” as her “second statement.”

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C. The ICA's November 24, 2009, Judgment On Appeal

Delos Santos appealed to the ICA raising three points

of error: l) the “family court erroneously admitted [the

Complainant]’s purported statements to Officer Kubo as an excited

utterance under HRE 803[;]” 2) “Delos Santos was not afforded

meaningful opportunity to cross-examine [the Complainant], [and]

the family court erred in admitting the statement[;]” and 3)

absent “the admission of [the Complainant]’s purported statements

to Officer Kubo, the State failed to adduce any evidence that

Delos Santos had abused [the Complainant].”

Without addressing Delos Santos’ second point of error,

the ICA, in its majority opinion,7 held that the “family court was

wrong and violated Delos Santos’ rights to a fair trial and due

process by admitting into evidence Officer Kubo’s testimony

regarding Complainant’s hearsay statements as excited utterances,

under HRE 803(b)(2).” State v. Delos Santos; No. 29337 (Haw.

App. Nov. 9, 2009) (mem.) at 8-9. lt correctly laid out the

foundational requirements for the excited utterance exception to

the hearsay rule: l) a startling event or condition occurred; 2)

“the statement was made while the declarant was under the stress

of excitement caused by the event or condition;” and 3) “the

statement relates to the startling event or condition.” ldL at 5

(block quote formatting omitted) (quoting State v. Machado,_l09

Hawafi 445, 45l, l27 P.3d 94l, 947 (2006)).

7 The Honorable Daniel R. Foley and Katherine G. Leonard signed the

majority opinion, and the Honorable Alexa D.M. Fujise filed a dissent, which

is described below.

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lhe1lCA held that the prosecution failed to establish

the second requirement. ldL at 7. lt held that the nature and

circumstances of the Complainant’s statement indicated non-

spontaneity. ld; at 6. The lCA focused on Officer Kubo’s

testimony that he asked the Complainant what happened before she

made her statements, he needed to calm the Complainant down when

he asked her what happened, and “a security officer was already

waiting at the scene when Officer Kubo arrived . . . .” lQL at

6-7. Although the lCA recognized that the Complainant “was in a

state of agitation throughout Officer Kubo’s investigation and

there was a short interval of time between the incident and the

arrival of the officer at the scene[,]” the lCA held that those

factors did not “mitigate against [its] conclusion.” ld. at 7

(citing State v. Moore, 82 HawaiH.202, 221-22, 921 P.2d 122, 142-

43 (1996)).

Additionally, the lCA analogized Machado, 109 HawaFi at

451, 127 P.3d at 947. lt noted that in Machado, the complaining

witness was “pretty emotional” when the officers arrived and that

the “complaining witness remained visibly upset as she described

to the sergeant what had transpired.” Delos Santos, mem. op. at

8. Furthermore, only a short time had passed when the

complainant in Machado gave her statement to the police. ;QL

This court held that the statements were not excited utterances

because “the complaining witness's statement ‘involved a lengthy

narrative of the events of an entire evening,’ ‘was detailed,

logical, and coherent,' and ‘was not delivered under . . . life

threatening physical conditions.’” ld. at 8 (quoting Machado,

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109 HawaFi at 452, 127 P.3d at 948). The_lCA held that the

“facts underlying Machado were substantially similar to the facts

in this case.” lQ;

After holding that the Complainant’s statements should

not have been admitted as excited utterances, the lCA held that

“without Officer Kubo's testimony about Complainant’s hearsay

statements, the State can not adduce substantial evidence to

sustain Delos Santos’ conviction.” ldL at 9. The lCA reversed

the family court’s August 6, 2008, Judgment of Conviction and

Sentence.

While the dissent “agree[d] that the more detailed

statement made by the complaining witness . . . to the police

officer in this case did not qualify for the ‘excited utterance’

exception-to the hearsay rule, [the dissent] would [have held]

that [the Complainant]’s initial statement that ‘my boyfriend

beat me up,’ made upon the officer's arrival, was admissible

under this exception.Y Delos Santos, dissenting op. at 1

(Fujise, J., dissenting) (citing HilVer v. Howat Concrete Co.,

578 F.2d 422, 424 (D.C. Cir. 1978) (held bystander’s statements,

describing fatal accident in response to police officer's

questions as he was “so excited” he could not remember the

officer's questions, admissible as excited utterances); Bosin v.

Oak Lodqe $anitarV District No. 1, 447 P.2d 285, 290 (Or. 1968)

(that statement was elicited by an inquiry is one factor to

consider; “the trial judge must be given considerable lee-way of

decision”) (internal quotation marks and citation omitted);

United States V. JoV, 192 F.3d 761, 766 (7th Cir. 1999) (“[A]

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court need not find that the declarant was completely incapable

of deliberative thought at the time he uttered the

dec1aration.”)).

The dissent would also have held that “admission of

this initial statement was not a violation of the confrontation

clauses of either the HawaFi or United States constitutions”

because the Complainant appeared at trial and Delos Santos “had

the opportunity to cross-examine her, notwithstanding her

testimony that she could not remember the incident in question or

her statements to police.” ld. at 1-2 (footnote omitted) (citing

'United States v. Owens, 484 U.S. 554, 559-60 (1988); Peop1e v.

Garcia-Cordova, 912 N.E.2d 280 (lll. App. Ct. 2009); State v.

Fields, 115 HawaiYi 503, 523, 168 P.3d 955, 975 (2007)).

Final1y, the dissent would have held that there was

sufficient evidence to remand to the family court for a new trial

because the Complainant’s statement “that ‘my boyfriend beat me

up,’ her testimony that she and Delos Santos were living together

at the time and the police officer's observations of her swelling

and marked chin, 1imp, and two-inch by two-inch circular red mark

on her thigh were sufficient to support a conviction for Abuse of

Family or Household Member.” ld; at 2 (citing HRS § 709-906

(Supp. 20075).

II. STANDARDS OF REVIEW

A. Application For Writ Of Certiorari

The acceptance or rejection of an application for writ

of certiorari is discretionary. HRS § 602-59(a) (Supp. 2009).

ii

“ln deciding whether to accept an application, this court reviews

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the decisions of the lCA for (1) grave errors of law or of fact

or (2) obvious inconsistencies in the decision of the lCA with

that of the supreme court, federal decisions, or its own

decisions and whether the magnitude of such errors or

inconsistencies dictate the need for further appea1.” State v.

Whee1er, 121 Hawafi 383, 390, 219 P.3d 1170, 1177 (2009) (citing

HRS § 602-59(b)).

B. Excited Utterance Exception To Hearsay Rule

This court reviews the admissibility of evidence by

application of the hearsay rules under the “right/wrong”

standard. State v. Machado, 109 Hawafi 445, 450, 127 P.3d 941,

946 (2006); State v. Moore, 82 Hawafi 202, 217, 921 P.2d 122, 137

-(l996). Thus, this court reviews whether the lCA “gravely erred”

by determining that the trial court’s decision to admit Officer

Kubo’s testimony was “wrong.”

C. Constitutional Questions

“We answer questions of constitutional law by exercising our

own independent judgment based on the facts of the case

Thus, we review questions of constitutional law under the

‘right/wrong’ standard.” State v. Fields, 115 HawaFi 503, 511,

168 P.3d 955, 963 (2007) (internal quotation marks omitted)

(quoting State v. Feliciano, 107 HawaFi 469j 475, 115 P.3d 648,.

654 (2005)).

D. Sufficiency of the Evidence

We review the sufficiency of the evidence under the

following standard:

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[E]vidence adduced in the trial court must be

considered in the strongest light for the prosecution when

the appellate court passes on the legal sufficiency of such

evidence to support a conviction; the same standard applies

whether the case was before a judge or jury. The test on

appeal is not whether guilt is established beyond a

reasonable doubt, but whether there was substantial evidence

to support the conclusion of the trier of fact.

State v. Richie, 88 Hawafi 19, 33, 960 P.2d 1227, 1241 (1998)

(quoting State v. Quitog, 85 Hawafi 128, 145, 938 P.2d 559, 576

(1997)). “‘Substantial evidence” as to every material element of

the offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion.” ld; (internal quotation marks

omitted) (quoting state v. Eastman, 31 Hawai‘i 131, 135, 913 P.2d

57, 61 (1996)).

III. DISCUSSION

The prosecution argues that Officer Kubo’s testimony

was admissible under the excited utterance exception to hearsay \

for two reasons. First, the prosecution asserts that Officer

Kubo’s entire summary of the Complainant’s statements was

admissible. Alternatively, the prosecution asserts that, at “the

very least, [the] initial statement by the complainant that

[Delos Santos] beat her up, made upon Officer Kubo’s arrival, was

admissible as an excited utterance.”

we agree with the lCA that the trial court should not

have admitted the Complainant’s second statement as an excited

utterance under Machado, 109 Hawafi at 452, 127 P.3d at 948

(holding that the complainant's statement was not admissible as

. an excited utterance in part because it “involved a lengthy

l3/

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narrative of the events of an entire evening”). However, the

Complainant’s initial statement that “my boyfriend beat me up”

was admissible as an excited utterance, and the lCA gravely erred

by holding that this statement was not an excited utterance.

Furthermore, the admission of the Complainant’s initial statement

did not violate the confrontation clause of the Hawafi

Constitution. Therefore, we reverse the lCA's judgment on

appeal, and remand to the family court for a new trial.

A. The Complainant’s More Detailed Statement Was Not an Excited

Utterance.

HRE 803(b)(2) (2002) provides that a “statement

relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event

or condition” is not excluded by the hearsay rule, To qualify as

an excited utterance, the proponent of a statement must establish

that: “(1) a startling event or condition occurred; (2) the

statement was made while the declarant was under the stress of

excitement caused by the event or condition; and (3) the

statement relates to the startling event or condition.” Machado,

109 Hawai‘i at 451, 127 93d at 947 (citing sss sos(b> (2) (2002>>.

Delos Santos did not assert that a “startling event” did not

occur or that the Complainant’s statement related to the

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startling event.8 Thus, the crucial issue on appeal is whether

the Complainant’s statement was made under the stress of

excitement caused by Delos Santos’ physical altercation with her,

The “ultimate question in these cases is ‘whether the

statement was the result of reflective thought or whether it was

rather a spontaneous reaction to the exciting event.’” Machado,

109 sawai‘i at 451, 127 P.sa at 947 (quoting Mga;a_, 92 Hawai‘i at

221, 921 P.2d at 141). The “time span between the ‘startling

event' and the statement to be admitted as an excited utterance”

is a factor in the determination, but a short time period is not

a foundational prerequisite. lQ; (quoting MQQ;e, 82 HawaiH.at

221, 921 P.2d at 141). “Other factors that courts often look to

in determining whether a statement was the product of excitement

include . . . the nature of the event, the age of the”declarant,

the mental and physical condition of the declarant, the

influences of intervening occurrences, and the nature and

circumstances of the statement itself.” ldL (citing MQQ;§, 82

Hawafi at 221, 921 P.2d at 141).

The prosecution asserts that the lCA gravely erred by

concluding that the Complainant did not make her statement under

8 Additionally, under “generally prevailing practice, the statement

itself is considered sufficient proof of the exciting event, and therefore the

statement is admissible despite absence of other proof that an exciting event

occurred.” 2 Kenneth S. Broun et al., McCormick on Evidence § 272 at 256-57

(6th ed. 2006) (footnote omitted).

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the stress of excitement. Additionally, the prosecution asserts

that the lCA's “reliance on the ‘facts underlying’ State v.

Machado, 109 HawaiT_445, 127 P.3d 941 (2006) as ‘substantially

similar to the facts of this case’ is misplaced” because Machado

“involved a lengthy narrative of the events of the entire evening

.” (Emphasis and italics in original;) After considering

the relevant factors, the prosecution’s argument is not

persuasive because the prosecution failed to establish when the

statement was made and whether it was a brief spontaneous comment

or a lengthy narrative which was then summarized by Officer Kubo.

Therefore,_the nature and circumstances of the statement indicate

that the Complainant’s second statement could have been the

product of “reflective thought.” Machado, 109 HawaFi at 451, 127

P.3d at 947 (quoting MgQ;§, 82 Hawafi at 221, 921 P.2d at 141).

1. Nature of the event

The prosecution correctly asserts that “the nature of

the event” was violent, which supports its argument that the

Complainant’s statement was an excited utterance. Officer Kubo

testified that the Complainant told him that Delos Santos hit her

in the face hard enough to fall to the ground. While on the

ground, Delos Santos stomped on her thigh. During their

conversation, Officer Kubo noticed that the Complainant’s lower

chin started to swell, she had slight abrasions on her knee, and

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had a two-inch by two-inch red mark on her thigh area. Thus, the

nature of the event was violent, which supports the prosecution’s

assertion that the Complainant’s statement was made without

reflective thought. See generally State v. Clark, 83 HawaiH 289,

297-98, 926 P.2d 194, 202-03 (1996) (holding that a complainant's

statements that her husband stabbed her were admissible as an

excited utterance in part because of the “vio1ent nature of the

startling event”); Moore, 82 HawaFi at 222, 921 P.2d at 142

(holding that the Complainant’s statement that her husband shot

her was an excited utterance in part because of the “vio1ent

nature of the startling event”); People v. Swinder, 180 Misc.2d

344, 350, 689 N.Y.S.2d 336, 341 (N.Y. Crim. Ct. 1998) (“The

nature of the attack on the complainant - abuse by a family

member - was undeniably traumatic and could have triggered the

‘excited utterance’ by the complainant.”).7 Although the incident

did not rise to the level of the stabbing in Qlark and the

shooting in MQQ;e, the incident was still violent, which supports

admitting it as an excited utterance.

2. The mental and DhVsical condition of the declarant

The mental and physical condition of the Complainant

supports the prosecution’s argument that her statement was not

the product of reflective thought. For instance, when Officer

Kubo arrived, he noticed that the Complainant was “really shaken,

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crying and appeared to be in a lot of pain.” Additionally, at

the time he asked the Complainant “what happenedy” the

Complainant was still “shaken” and “crying.” Finally, the

Complainant’s emotional state did not change during the forty-

five minute period that Officer Kubo was at the hotel. This

court has held that a declarant’s statements five minutes after

being stabbed were excited utterances in part because the

declarant was “really shaken,” obviously “scared” and

“terrified,” and was “trembling” and “starting to cry.” Qla;k,

83 Hawafi at 297, 926 P.2d at 202; see also Machado, 109 HawaFi

at 451, 127 P.3d at 947 (noting that the complaining witness

“remained visibly upset as she described what had transpired”).

Additionally, as discussed above, the Complainant’s lower chin

swelled and she had slight abrasions on her knee and a red mark

on her thigh area. Thus, the Complainant’s mental and physical

condition supports the prosecution’s argument that her statement

was an excited utterance.

3. Time span between the “startling event” and the

statement

\

The prosecution asserts that the “elapsed time between

the abuse and the Complainant’s statements was short as Officer

_Kubo was on the scene within minutes . . . .” (Footnote

omitted.) ln State v. Moore, this court stated that “a statement

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made within minutes of a startling event can often fairly be

characterized as the product of excitement rather than of

deliberation.” 82 HawaiH at 221, 921 P.2d at 141; see also

Machado, 109 Hawaid at 447, 451, 127 P.3d at 943, 947 (describing

ten minute time period between violent incident and police

officer's arrival as “short”). The lCA did not address this

factor in detail, but held that the “short interval of time

between the incident and the arrival of the officer at the scene

does not mitigate against our conclusion.” Delos Santos, mem.

op. at 7.

The amount of time does not weigh in favor of admitting

the second statement because the prosecution did not establish

when the Complainant made the second statement. Officer Kubo

arrived at the apartment “shortly after about 1:05.”9 At the

hearing, he testified that the incident occurred at 1:00.

Although it is impossible to know exactly when the Complainant

made her initial statement, at the time Officer Kubo met the

Complainant, he immediately spoke with her. Because the

Complainantls initial statement was the first part of their

forty-five minute interaction, it is reasonable to infer that her

9 At trial, officer r<ube testified that he arrived at the hetei at

"shortly after about 1:05 . . . ." At the hearing, he testified that he

received the.call from the dispatcher at approximately 1:07 a.m., and that he

arrived at the complex at 1:10.

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initial statement occurred a short time after the incident.

Thus, a short amount of time elapsed between the Complainant’s

initial statement and the incident.

However, the prosecution never established when the

second statement occurred. At the hearing, Officer Kubo

testified that he talked with the Complainant for at least thirty

minutes. The prosecution never established when in this thirty

minute window the Complainant’s second statement occurred. Thus,

the time period between the incident and the second statement

does not support admitting the second statement as an excited

utterance.

~4. Nature and circumstances of the statement

The nature and circumstances of the Complainant’s

second statement illustrate that her statement was the product of

reflective thought for two reasons.

First, the Complainant made her statements under

circumstances which could indicate reflective thought. That the

Complainant responded to a question after officer Kubo attempted

to calm her down weighs in favor of concluding that her statement

was the product of reflective thought, but does not automatically

bar its admissibility as an excited utterance. _§§ infra at 26-7

28; 30B Michael Graham, Federal Practice & Procedure § 7043 at

417-18 (2006) (stating that one factor in evaluating whether a

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statement is an excited utterance is “whether the statement was

volunteered or in response to a question”) (footnote omitted).

Thus, the nature and circumstances of the statement weigh against

admitting the second statement as an excited utterance partly

because the statement was made in response to a police officer's

question.

Second, the nature and circumstances of the statement

weigh against admitting the second statement as an excited

utterance because the record does not clearly establish whether

the statement is a recitation of the events of the evening rather

than a “disjointed” or “spontaneous” outburst. §§§ Machado, 109

Hawafi at 451-52, 127 P.3d at 947-481 For instance, in Machado,

this court recognized that other “courts have held that lengthy,

narrative statements are not admissible as excited utterances.”

ldL at 45l, 127 P.3d at 947. lt held that a witness’ detailed

statement was not admissible as an excited utterance because “the

statement, made in response to questioning by the police,

exceeded a ‘truly spontaneous outburst.'” lg¢ at 452, 127 P.3d

at 948 (quoting west valley City v. Hutto, 5 P.3d 1, 4 (Utah Ct.

App. 2000)). lnstead, this court noted that the statement “was a

specific and inclusive rendition of the circumstances leading up

to the incident and of the incident itself” and described the

statement as “detailed, logical, and coherent.” ld. This court

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contrasted the inadmissible statements in Machado with those in

State v. Moore, noting that the statements in Moore were “several

brief and disjointed remarks” such as “he shot me,” “he’s a good

man[,] l told him l was leaving him,” and “keep him away from me

. .” lQ; (quoting Mgg;e, 82 Hawaid at 217, 921 P.2d at 137).

Similar considerations in this case indicate that the

Complainant’s statements were not excited utterances, because it

appears that the testimony by Officer Kubo may have paraphrased

some or all of a thirty minute conversation, Officer Kubo

testified at trial that the Complainant “basically said that she

got into an argument with her boyfriend and while inside the

apartment -- hotel room, rather, he punched her once in the face

with enough force to her to fall onto the ground. while on the

ground, he stomped on her right thigh1”w (Emphasis added.) This

“statement” may have been Officer Kubo’s synopsis of a lengthy,

conversation rather than a discrete or “disjointed” statement, as

in Mgg;g. Thus, the nature and circumstances as adduced by the

prosecution do not support admitting the statement as an excited

utterance.

m Officer Kubo’s testimony at the pretrial hearing also suggested

that he was summarizing the Complainant’s`comments: “[A]fter speaking with

her and getting the full facts and circumstances, basically she said she was

arguing with Mr. Delos Santos about some other matters and while in the room

he struck her once in her face hitting her in her jaw with enough force to

cause her to fall.” (Emphasis added.)

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The prosecution attempts to distinguish Machado by

asserting that the statements in Machado “involved a lengthy

narrative of the events of the entire evening . . . .” (Emphasis

and italics in original.) The prosecution also notes that

Officer Kubo “was not allowed to recount an entire 30 to 45

minute interview with the complainant, but rather, was limited to

Wparticular utterances of the complainant while under the stress

of excitement caused by [Delos Santos'] assault on her.”

The prosecution correctly observes that the police

officer's statement in Machado is much longer than Officer Kubo’s

and Officer Kubo did not recount every detail of the

Complainant’s statement. §§§ Machado, 109 Hawai/i at 447-48, 127

P.3d'at 943-44 (quoting State v. Machado, 109 Hawaifi 424, 425-26,

127 P.3d 84, 85-86 (App. 2005)). However, this argument is not

persuasive given the record in the instant case, which does not

establish whether Officer Kubo was repeating a short,

“disjointed” statement of the type at issue in Mgg;§, or whether

he was summarizing a thirty minute narrative similar to that in

Machado,

5. The age of the declarant

The age of the declarant does not have any bearing on

whether the statement is likely the product of reflective thought

in this case. Courts evaluate the age of the declarant because

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_“child victims of sexual abuse are generally allowed more time

between the event and the statement . . . .” Boyd v. City of

0ak1aha, 459 F. supp.2a 1015, 1026 <N.0. ca1. 2006). this issue

is not present in this case.

6. The influences of intervening occurrences

Courts evaluate “the influences of intervening

occurrences” between the event and the statement. Machado, 109

Hawafi at 451, 127 P.3d at 947 (citing MgQr§, 82 Hawafi at 221,

921 P.2d at 141). The prosecution argues that “there were no

intervening occurrences other than the police being called

.” Delos Santos did not argue in his Opening Brief that

intervening occurrences influenced the Complainant to make her

statement. “lntervening occurrences” did not dull the

Complainant’s excitement from the “startling event.” Officer

Kubo arrived at the apartment a “few minutes” after receiving the

call from dispatch. Although a security guard waited with the

Complainant before Officer hubo arrived, there is no evidence

that the security guard or Delos Santos took any action to dull

the Complainant’s excitement during that period of time.

Therefore, there is no evidence that intervening occurrences

dulled the Complainant’s excitement.

7. Totality of the circumstances

Evaluating the totality of the circumstances, Clark, 83

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HawaiH at 297, 926 P.2d at 202, the Complainant’s second

statement was not admissible as an excited utterance because the

7 prosecution failed to lay adequate foundation that the statement

was not the product of reflective thought. Although the incident

was violent and the Complainant was crying and appeared upset,

the prosecution failed to adduce evidence regarding when the

Complainant made the second statement and the “nature and

circumstancesV of the statement. Machado, 109 Hawafi at 45l, 127

P.3d at 947. Officer Kubo may have summarized a lengthy

narrative with the Complainant rather than reiterating a discrete

statement. Therefore, under State v. Machado, 109 Hawafi at 451,

127 P.3d at.947, the lCA did not gravely err by holding that the

prosecution failed to establish the foundational requirements to

admit the second statement as an excited utterance.

B. The Complainant’s Initial Statement That “My boyfriend beat

me up” Is Admissible As an Excited Utterance.

Although Officer Kubo’s summary of the witness' second

statement does not qualify as an excited utterance, his testimony

regarding the Complainant’s initial statement that “my boyfriend

beat me up” does. As discussed above, the violent nature of the

event, the short period of time between the incident and Officer

Kubo’s arrival, and the Complainant’s physical and mental state

support admitting the Complainant’s initial statement as an

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excited utterance. §§e supra at 16-20. There are three reasons

that the Complainant’s initial statement is admissible as an

excited utterance while her later statements are not: 1) her

initial statement does not summarize a longer conversation; 2)A

evidence that her statement was made in response to a police

officer's question does not bar its admissibility as an excited

utterance; and 3) the totality of the circumstances indicates

that her statement was made under the stress of excitement.

1. The Complainant’s initial statement does not summarize

a lengthy conversation.

The Complainant’s initial statement is admissible as an

excited utterance because it is not a “lengthy narrative” as

discussed in Machado. See supra at 21-23.

2. Evidence that a statement was made in response to a

police officer's guestion does not bar its

admissibility as an excited utterance.

Although the Complainant’s statement was made in

response to Officer Kubo’s question, this does not automatically

bar its admissibility as an excited utterance. 30B Michael

Graham, Federal Practice & Procedure § 7043 at 417-18 & n.13

(2006); People of Territory of Guam v. Cepeda, 69 F.3d 369, 372

(9th Cir. 1995) (“The fact that a statement is made in response

to a question is one factor to weigh in considering the

statement’s admissibility, but it does not per se bar

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admission.”). ln Machado, this court noted that the

complainant’s statement “made in response to guestioning by the

police, exceeded a ‘truly spontaneous outburst.'” Machado, 109

Hawai‘i at 452, 127 P¢3d at 948 (emphasis added) (quoting HuttQ, 5

P.3d at 4). However, it did not explicitly hold that responses

to police questions cannot be excited utterances.

Other Hawai‘i courts and scholars have concluded that

evidence that the statement is made in response to an inquiry

does not automatically bar admitting the statement as an excited

` utterance. See State v. Konohia, 106 Hawafi 517, 524, 107 P.3d

1190, 1197 (App. 2005) (“The fact that some of Coral-Sands'

statements were made in response to questions by the 911

dispatcher did not prevent them from qualifying as excited

utterances.”) (citing People v. Roybal, 19 Cal. 4th 481, 79 Cal.

Rptr. 2d 467, 966 P.2d 521, 542~43 (1998)); see a1se state v.

Dunn, 6 Haw. App. 23s, 246, 793 P.2d 90s, 912-13 <App. 1990)

(holding that the complainant’s statements, made in response to a

police officer's question, were admissible as excited

utterances);“ 2 Kenneth S. Broun et al., McCormick on Evidence §

" Although not expressly overruled, the validity of Dunn was called

into question in State v. Moore. 82 Hawafi 202, 2l9, 921 P.2d 122, 139

(l996) (“lt is therefore worth examining how our interpretation of the excited

utterance exception has evolved to the point where, rather than looking to a

short time interval between event and statement as an indicator that the

declarant was still excited by the event, the lCA, in State v. Dunn, 8 Haw.

continue. ..

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272 at 259 (6th ed. 2006); C.f. Territory v. Lewis, 39 Haw. 635,

640 (Haw. Terr. 1953) (holding that defendant's statements, made

in response to questions by a police officer, were part of the

res gestae because they “were made under the exciting influence

of said events, reasonably contemporaneous thereto and without

prior opportunity for deliberation or manufacture”), superceded

by rule as recognized in State v. Fetelee, 117 Hawai‘i 53, 175

P.3d 709 (2008). Therefore, the fact that the Complainant’s

statement responded to Officer Kubo’s question does not

automatically bar its admission as an excited utterance.

At the lCA, Delos Santos also asserted that the

questions posed by Officer Kubo were done with “investigative

intent and objective.” The lCA also held that the “fact that

Officer Kubo’s investigatory questioning prompted Complainant’s

statements about the incident with Delos Santos strongly supports

an inference that Complainant was in a reflective state at the

time she described the incident to Officer Kubo.” Delos Santos,

mem. op. at 7 (emphasis added). However, the intent behind

Officer Kubo’s questions is not legally relevant in establishing

'\~c0ndnue 1 '

App. 238, 246, 798 P.2d 908, 912 (1990), pointed to the fact that the

declarant was ‘crying and visibly upset’ to establish that the event had

occurred only a short time before the statement was made.”). Dunn is still

valid for the proposition that a response to a police officer's question can

constitute an excited utterance. '

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whether a statement was made under the stress of excitement. ln

State v. Machado, this court assessed whether a statement, made

in response to a police officer's question, was an excited

utterance. 109 HawaiYi at 452, 127 P.3d at 948. This court did

not analyze whether the question was asked with “investigative

intent and objective” and we decline to adopt it as a criteria in

determining whether a statement is an excited utterance. lg;

Therefore, the fact that the Complainant responded to a question

posed by Officer Kubo does not require concluding that the

Complainant/s initial statement was not an excited utterance.

3. The totality of the circumstances indicates that the

Complainant’s statement was made under the stress of

excitement.

Evaluating the totality of the circumstances, it

appears that the statement was not the product of reflective

thought and therefore qualifies as an excited utterance.

Other courts have held statements made in similar

circumstances are excited utterances. For instance, in State v.

Fowler, 829 N.E.2d 459, 463 (lnd. 2005), police officers

responded to a domestic violence call and arrived at the home

approximately five minutes after the incident occurred. They

asked the complainant what happened, and she responded that

“everything was alright.” ld; at 462 (internal quotation marks

omitted). The complainant then told the police that Fowler, the

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assailant, was upstairs. lQ; The police officers found Fowler

and arrested him. ld4 when the police officers came back to

talk to the complainant approximately fifteen minutes after the

incident, she stated that Fowler punched her in the face multiple

times and choked her. ld; at 462, 463. while making this

statement, she “claimed to be in pain and was still crying,

bleeding from the nose, and having trouble catching her breath.”

;d; at 463. The court held that the trial court did not abuse

its discretion in admitting the statement as an excited

utterance.

simi1ar1yj in state v. Rehihseh, 773 A.2a 445, 447 <Me.

200l), police officers responded to a domestic violence incident.

when the officers arrived, they observed the complainant “in a

terrified state, ‘crying,’ ‘upset,’ and ‘frazz1ed.’” ldL They

also noticed that “her face was red and puffy, and that she had

visible red marks on her neck.” ldL An officer “asked [her]

what had happened, and she responded that [the defendant] had hit

her and that he was in the bedroom.” ld; at 448 (footnote

omitted)." The officers arrested the defendant and interviewed

the complainant approximately three to twelve minutes after they

initially talked with the complainant. ld. The complainant “was

'2 The defendant did not challenge the admissibility of this first

statement. Robinson, 773 A.2d at 448 n.2.

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still crying and appeared terrified and ‘very, very upset.’” ld;

She again told the police officer that the defendant “had hit her

and this time, more specifically, that he had ‘thrown [her] onto

the living room floor’ and had ‘punched, kneed, kicked and

choked' her.” lQL (footnote omitted).

The court held that the complainant’s statements were

admissible as excited utterances because the complainant “was

still ‘very, very upset’ at the time that she made the

'statement[,]” and “appeared terrified and was still sobbing from

the events of that night . . . .” ld; at 450. Additionally, the

court noted that the complainant “had visible bodily injuries[,]”

and did not have “the time nor the opportunity to consult with

anyone, and there was no evidence that she had had the time for

reflection.” lQ4 Thus, in a situation similar to this case, the

court concluded that a complainant’s response to an inquiry from

a police officer was admissible as an excited utterance.

These cases are analogous to this case and indicate

that statements made to police officers, even if in response to a

question, are admissible as excited utterances if the complainant

is still under the stress of excitement. See also People v.

Gwinn, 851 N.E.2d 902, 916-17 (lll. App. 2006) (holding that then

trial court did not abuse its discretion in admitting as an

excited utterance the complainant’s statement to a police officer

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approximately fifteen minutes after the father of her children

punched her in the face).

ln the present case, under the totality of the

circumstances, the Complainant’s first statement to the police

officers was an excited utterance. The nature of the event was

violent. The Complainant was still in a state of excitement as

indicated by Officer Kubo’s testimony that she was crying,

scared, and had a red mark on her thigh and a swollen lower chin.

Furthermore, the statement was made a short time after the

incident. Thus, although the statement was given in response to

Officer Kubo’s question, the factors outlined in State v. Machado

indicate that the Complainant’s initial statement was admissible

as an excited utterance.

The lCA also held that “the fact that a security

officer was already waiting at the scene when Officer Kubo

arrived, suggesting that order had been restored there, and

Officer Kubo’s testimony that he needed to calm Complainant down

when he asked her what happened suggests that Complainant’s

statements were not spontaneous.” Delos Santos, mem. op. at 7.

These facts do not require concluding that the statement was not

an excited utterance.

The lCA’s discussion of the security guard waiting with

the Complainant until Officer Kubo’s arrival does not negate the

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Complainant’s mental and physical state when Officer Kubo arrived

shortly after the incident. Officer Kubo testified that the

Complainant was “shaken” and crying when he arrived. He

testified that the Complainant was “scared” and “frightened”

throughout the interview. Additionally, Delos Santos was in the

threshold of the door to the room when Officer Kubo arrived,

which also indicates that the Complainant was under the stress of

excitement when she made her initial statement.

Furthermore, although Officer Kubo testified that he

rrr§d to calm the Complainant down for “a lot of time;” this does

not indicate that her statements lacked spontaneity. Officer

Kubo testified that despite his attempts to calm the Complainant

down, her emotional state remained the same throughout the_

interview, and that she was scared, frightened, crying, and in

pain. Therefore, Officer Kubo’s attempt to calm the Complainant

down does not indicate that her statement was the product of

reflective thought.

Although neither party nor the lCA cited to it, in

State v. Beyer, this court held that a complainant’s statement to

police officers after being questioned was*not an excited

utterance. 72 Haw. 469, 472, 822 P.2d 519, 521 (1991), overruled

by, State v. Moore, 82 Hawafi 202, 220-21, 921 P.2d 122, 140-41

(1996) (holding that “a ‘very short' time interval between a

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startling event and an excited utterance . . . is not a

foundational prerequisite to the admissibility of the statement

under HRE Rule 803(b)(2)”). At first, the complainant “was

extremely nervous and upset and would not answer the police

officer's questions but, after 10 or 15 minutes and smoking

two cigarettes, she calmed down and stated that she and the

[defendant] had been living together for about four months, that

he had not paid his share of the rent, that he had disappeared

for several days and so she threw his belongings out in the yard,

Y and that later, while she was sleeping, the appellant came in and

struck her in the face.” lee at 470-71, 822 P.2d at 520. This

court held that the “statement was not proximately'caused by the

excitement generated from the event, but as a result of

questioning by the police after they had calmed the person down.”

lee at 472, 822 P.2d at 52l. §eyer is distinguishable because in

geyer the complainant had calmed down, while the Complainant in

this case was still crying and “shaken” when she made the

statement. Although Officer Kubo attempted to calm the

Complainant down, she made her statement under the stress of

excitement. Thus, Officer Kubo’s attempt to calm the Complainant

down does not indicate her statement was not spontaneous.

Therefore, we hold that the lCA gravely erred by

concluding that the Complainant’s initial statement was not an

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excited utterance.

C. The Admission Of the Complainant’s Statements Did Not

Violate the Confrontation Clause Of the HawaiU.

Constitution.

The lCA did not reach Delos Santos’ argument that the

admission of Officer Kubo’s testimony violated his right to

confront the Complainant, Delos Santos, mem. op. at 2. Because

we conclude that the Complainant’s first statement was admissible

as an excited utterance, we address this argument.

Delos Santos asserts that admission of the statement

violated his right to confrontation under article l, sections 5

and 14 of the HawaiYi Constitution because Hawai‘i’s confrontation

clause requires a “meaningful opportunity” to cross-examine the

declarant about the subject matter of a hearsay statement.

(Citing State v. Fields, 115 Hawafi 503, 528, 168 P.3d 955, 980

(2007.)) Delos Santos argues that: 1) the Complainant’s

statements were testimonia1; 2) the Complainant was unavailable

at trial; and 3) he did not have a “meaningful opportunity” to

cross-examine the Complainant at trial due to her claimed memory

loss. ln response, the prosecution asserts that the admission of

the Complainant’s hearsay statements did not violate the

confrontation clause because Delos Santos had a sufficient

opportunity to cross-examine the Complainant at trial. (Citing

Fields, 115 Hawai‘i at 523-24, 168 P.3d at 975-76.) As discussed

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below, we hold that the admission of the Complainant’s hearsay

statements did not violate the confrontation clause because the

Complainant appeared for cross-examination at trial. Therefore,

we do not decide whether the Complainant’s statements were

testimonial, and the application of the two-part tests in

Crawford or Roberts is unnecessary. §ee Fields, 115 Hawafi at

528, 168 P.3d at 980.

Article l, section 14 of the Hawafi 0onstitution

provides the accused with the right “to be confronted with the

witnesses against the accused . . . .” Haw. Const. art. l, § 14.

ln State v. Fields, this court adopted the following standard for

assessing whether testimonial hearsay violates the confrontation

clause: “where a hearsay declarant's unavailability has been

shown, the testimonial statement is admissible for the truth of

the matter asserted only if the defendant was afforded a prior

opportunity to cross-examine the absent declarant about the

statement.” Fields, 115 Hawafi at 516, 168 P.3d at 968 (citing

Crawford v. washington, 541 U.S. 36, 68 (2004)). lmportantly,

this court also held that “Hawafi's confrontation clause, like

its federal counterpart, is not implicated where . . . the

hearsay declarant attends trial and is cross-examined about his

or her prior out-of-court statement.” lee at 517, 168 P.3d at

969. This court found the following language in Crawford

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compelling:

[w]e reiterate that, when the declarant appears for

cross-examination at trial, the Confrontation Clause places

no constraints at all on the use of his DriOr t€StlmOHl3l

statements, §ee California v. Green, 399 U.S. 149, 162, 90

S-Ct- l930, 26 L.Ed.2d 489 (1970). . . . The Clause does.

not bar admission of a statement so long as the declarant is

present at trial to defend or explain it, `

rer (footnote omitted) (emphasis added) (quoting Qrerrere, 541

U.S. at 60 n,9i.

Relying on numerous cases from other jurisdictions,

this court held that “Crawford does not preclude the admission of

3 prior out-of-court statement where the hearsay declarant is

cross-examined at trial about the out-of-court statement.” rer

at 523, 168 P.3d at 975 (footnote omitted). Under Fields, the

relevant inquiry is whether the Complainant “appear[ed] at trial

and [was] cross-examined about [her] statement.” §ee Fields, 115

Hawai‘i at 517, 168 P.3d at 969.”

Neither this court nor the United States Supreme Court

has specifically determined whether a witness who is cross-

examined by the defendant but testifies that she cannot remember

the subject matter of her out-of-court statements or making her

prior statements “appears for cross-examination at trial” under

" Any difference between Fields! and Crawford’s formulations is

aesthetic. A witness that “appears for cross-examination at trial” under

Crawford is a witness that “appeared at trial and was cross-examined about her

statement” under Fields. See Crawford, 541 U.S. at 60 n.9; Fields, 115

HawaiH at 517, 168 P.3d at 969.

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Q;§LfQre and Fields. See Crawford, 541 U.S. at 60 n.9; Fields,

115 Hawafi at 517, 168 P.3d at 969. Delos Santos asserts that

§ielee “extended Crawford's holding” by requiring “substantive

and meaningful” cross-examination. He asserts that he did nOt

have a “meaningful” opportunity to cross-examine the Complainant

because, unlike the declarant in Fields, the Complainant could

not remember anything about the incident. §ee Fields, 115 HawaFi

at 523-24, 168 P.3d at 975-76. He points to footnote 13 of our

opinion in Fields, where we observed that “the dispositive

question becomes whether the witness can nevertheless recall the

subject matter of the statement, notwithstanding the loss of

memory'as to the statement itself.” lee at 526 n.13, 168 P13d at

978 n.13 (emphasis added). This court noted that if “the accused

has the opportunity to elicit the witness' testimony as to the

subject matter of the statement on cross-examination at trial,

the accused's right of confrontation has been satisfied.” lee

This argument is not persuasive because language in

Fields also supports concluding that a witness need not recall

the subject matter of her statements to appear for cross-

examination at trial, and our adoption of Crawford supports

interpreting Fields in this manner. For instance, this court

'held that “Hawai‘i’s confrontation clause, like its federal

counterpart, is not implicated where, as here, the hearsay

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declarant attends trial and is cross-examined about his or her

prior out-of-court statement.” ld. at 517, 168 P.3d at 969

(emphasis added). when analogizing Robinson v. State, 610 S.E.2d

194, 195 (Ga. App. 2005), this court also observed:

ln the case at bar, as in Robinson, the reluctant

witness testified to an extent, despite claiming memory loss

as to material elements of the alleged crime. Furthermore¢

neither Staggs nor the hearsay declarants in Robinson

testified as to the subject matter of their prior

out-of-court statements. lnsofar as the Robinson court thus

concluded that Crawford was inapplicable, we are similarly

persuaded that the same result should be reached here.

Fields, 115 Hawafi at 519, 168 P.3d at 971 (emphasis added).

Although Fields is ambiguous regarding whether a

witness must recall the subject matter of her statements, our

adoption of Crawford as the test for whether a witness “appears

at trial for cross-examination” resolves this ambiguity. §ee rer

at 517 & n.9, 168 P.3d at 969 & n.9. To the extent that Fields

can be interpreted as indicating that a witness must testify

about the subject matter of a statement to satisfy the

confrontation clause, we reject this interpretation and instead

hold that, under Crawford, a witness who appears at trial and

testifies satisfies the confrontation clause, even though the

witness claims a lack of memory that precludes them from

testifying about the subject matter of their out-of-court

statement. As discussed below, this conclusion is supported by

United States Supreme Court precedent, the precedent of other

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jurisdictions applying Crawford, and the policies espoused in

Fields.'

First, concluding that a witness appears for cross-

examination at trial despite a memory loss is supported by United

States Supreme Court precedent, which this court relied on to

interpret the Hawafi Constitution's confrontation clause in

Fields. lee Although Delos Santos’ challenge comes under the

Hawai°i Constitution, we have relied on Crawford in determining

whether a witness appears for cross-examination at trial. lee

Thus, the Supreme Court’s construction of the federal

confrontation clause is persuasive on this issue.“

The Supreme Court’s construction of the federal

confrontation clause indicates that a witness who forgets both

the underlying events and her prior statements nonetheless

appears for cross-examination at trial. For instance, in

Crawford, the Supreme Court drew the following inference from the

historical application of the confrontation clause: “the Framers

" The concurring opinion asserts that federal and state case law

applying Crawford is “immaterial” because it does not “implicate the

established jurisprudence construing our state constitution's confrontation

clause.” Concurring opinion at l9, we respectfully disagree because in

Fields this court adopted Crawford as this jurisdiction’s test for whether a

witness appears for cross-examination at trial. §ee Fields, 115 Hawafi at

517 & n.9, 168 P.3d at 969 & n.9. Fields also examined the case law of other

jurisdictions applying Crawford. Therefore, case law of the United States

Supreme Court and other jurisdictions applying Crawford is not “wholly

irrelevant” to whether Delos Santos’ right to confront the Complainant was

violated in this case. §ee Concurring opinion at 19.

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would not have allowed admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for

cross-examination.”' Crawford, 541 U.S. at 53-54 (emphasis

added). The Supreme Court also observed that “[o]ur cases have

thus remained faithful to the Framers’ understanding:

Testimonial statements of witnesses absent from trial have been

admitted only where the declarant is unavai1able, and only where

the defendant has had a prior opportunity to cross-examine.” ld.

at 59 (emphasis added). ln a footnote, the Supreme Court

confirmed that “when the declarant appears for cross-examination

at trial, the Confrontation Clause places no constraints at all

on the use of his prior testimonial statements.” ld. at n.9

(emphasis added) (citing California v. Green, 399 U.S. 149, 162

(1970)). Thus, Crawford indicates that regardless of a witness'

inability to remember the subject matter of her statements, the

witness' “appearance for cross-examination at trial7 satisfies

the confrontation clause.”

_ 5 Delos Santos asserts that this court required “that the declarant

must not only be present at trial, but must be able to address the statement

by defending or explaining it.” (Citing Fields, 115 HawaiH at 517, 168 P.3d

at 969.) Delos Santos refers to our quotation of the following sentence in

Crawford: “The Clause does not bar admission of a statement so long as the

declarant is present at trial to defend or explain it.” Fields, 115 HawaiH

at 517, 168 P.3d at 969 (quoting Crawford, 541 U.S. at 60 n.9). This argument

is not persuasive because “such an interpretation both ignores the fact that

the Court’s ‘language still focuses on presence and ability to act without

condnuea

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The Supreme Court’s pre-Crawford decisions support a

similar conclusion. For instance, in California v. Green, the

Supreme Court held that “the Confrontation Clause does not

require excluding from evidence the prior statements of a witness

who concedes making the statements, and who may be asked to

defend or otherwise explain the inconsistency between his prior

and his present version of the events in question, thus opening

himself to full cross-examination at trial as to both stories.”

399 U.S. at 164." The Supreme Court did not reach the question of

whether the witness' “apparent lapse of memory so affected [the

defendant]’s right to cross-examine as to make a critical

difference in the application of the Confrontation Clause

.” ld. at 168-69. However, it stated that:/

[w]e note that none of our decisions interpreting the

Confrontation Clause reguires excluding the out-of-court

statements of a witness who is available and testifying at

trial. The concern of most of our cases has been focused on

precisely the opposite situation-situations where statements

have been admitted in the absence of the declarant and

without any chance to cross-examine him"at trial.

ld. at 161 (emphasis added).

Justice Harlan filed a concurring opinion, and would

‘iac0ndnue

requiring that the record show the declarant actually did defend or explain

the statement,' , and is at odds with the Court’s more explicit

assertion that ‘when the declarant appears for cross-examination at trial,~thei

Confrontation Clause places no constraints at all on the use of his prior

testimonial statements,’ . .” State v. Holliday, 745 N.w.2d 556, 565-66

(Minn. 2008) (internal citation omitted) (quoting Crawford, 541 U.S. at 59

n.9). Thus, under Crawford and Fields, a declarant need not actually “defend”

or “explain” the statement.

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have reached the issue of whether the witness' failure to

remember the events affected the defendant's right to confront

the witness. Justice Harlan would have held that:

The fact that the witness, though physically

available, cannot recall either the underlying events that

are the subject of an extra-judicial statement or previous

testimony or recollect the circumstances under which the

statement was given, does not have Sixth Amendment

conseguence. The prosecution has no less fulfilled its

obligation simply because a witness has a lapse of memory.

The witness is, in my view, available. 1

lee at 188 (Harlan, J., concurring) (emphasis added).

ln Qeepe, the Supreme Court observed that the question

left unanswered in §reep was “squarely presented,” and the Court

agreed “with the answer suggested 18 years ago by Justice

Harlan.” United States vt Owens, 484 U.S. 554, 559 (1988).

The Supreme Court held that the “Confrontation Clause guarantees

only ‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.'” lee (internal

quotation marks omitted) (quoting Kentucky v. Stincer, 482 U.S.

730, 739 (1987)). The Court also held that it “is sufficient

that the defendant has the opportunity to bring out such matters

as the witness' bias, his lack of care and attentiveness, his

poor eyesight, and even (what is often a prime objective of

cross-examination, see 3A J. wigmore, Evidence § 995, pp. 931-932

(J. Chadbourn rev. 1970)) the very fact that he has a bad

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memory.” ld. Finally, the Court found it unnecessary to apply

Roberts:

we do not think such an inquiry is called for when a

hearsay declarant is present at trial and subject to

unrestricted cross-examination. ln that situation, as the

Court recognized in Green, the traditional protections of

the oath, cross-examination, and opportunity for the jury to

observe the witness' demeanor satisfy the constitutional

requirements.

lee at 560 (emphasis added) (citing §reep, 399 U.S. at 158-161).

Although the factual scenario in Qeepe is

distinguishable from this case because the witness in Qeeee

remembered making his prior identification, the principles

elucidated in these decisions support concluding that a witness

appears for cross-examination at trial despite her inability to

recall the incident and making her prior statements. See State

1 v. Holliday, 745 N.w.2d 556, 566 (Minn. 2008) (acknowledging that

Qeepe and §reep are distinguishable but concluding that “these

cases suggest what was settled in Crawford-that ‘when the

declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of

his prior testimonial statements.’”). The Supreme Court’s

adoption of the reasoning in Justice Har1an’s concurring opinion

in Green indicates that the confrontation clause is satisfied

when the witness appears at trial and is available for

unrestricted cross-examination. See Owens, 484 U.S. at 560;

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Crawford, 541 U.S. at 60 n.9. Thus, Supreme Court precedent,

which this court has relied upon in delineating the requirements

of the Hawaid.Constitution’s confrontation clause, indicates

that a witness “appears for cross-examination” despite a nearly

total loss of memory regarding the incident and her statements.

Second, courts in other jurisdictions applying Crawford

have held that a testifying witness appears for cross-examination

at trial despite a nearly total lapse in memory.

For instance, in State v. Holliday, the defendant

chased and shot at a person, but killed a different person than

the one he intended. 745 N.w.2d at 560. The prosecution called

the intended victim at trial “as a witness to testify as to

information he gave in an interview with Sergeant Charles Adams

in Apri1 2006 and in his meetings with Assistant Hennepin County

Attorney Robert Streitz in May 2006 and September 2006.” lee at

561. The witness claimed he could not remember his interview

with the police officer or the May meeting with the county

attorney, “and, after viewing a document from the September

meeting, [the witness] said he remembered talking to someone in

the county attorney’s office but could not remember what the

conversation was about.” lee On cross-examination, the witness

“agreed that his regular ecstasy use possibly affected his

ability to remember.” ld. The police officer testified “as to

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what [the witness] said in the April 2006 interview, including

[his] claim that he was appe1lant’s intended victim when Reitter

was shot.” lee A legal services specialist was present at the

September meeting between the witness and the county attorney.

lee She testified that, at the September meeting, the county

attorney read the witness a report of the witness' April

interview with the police officer and two memoranda documenting

~the county attorney’s meetings with the witness. ld. She

testified that the witness affirmed the contents of these

documents at the meeting, lee At trial, the legal service

specialist read portions of these documents into evidence. lee

On appeal, the defendant claimed that “the admission of

[the witness]'s prior statements violated the Confrontation

Clause because [the witness]'s memory loss precluded the

opportunity to cross-examine [the witness] about the

circumstances surrounding his prior statements and the contents

of those statements.” lee at 565. The court observed that

language “from the Supreme Court’s Crawford decision indicates

that the admission of a witness's prior statements does not

violate the Confrontation Clause where the witness appears for

cross-examination and claims that he or she cannot remember

either making the statements or the content of the statements.”

ld. Applying Crawford, the court held that the admission of the

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witness' statements did not violate the confrontation clause

because “[t]he Confrontation Clause is satisfied by a declarant’s

appearance at trial for cross-examination, and it is for the

factfinder to evaluate a declarant’s credibility.” lee at 567-

68; Thus, despite the witness' failure to testify regarding the

underlying events or recall his prior statements, the admission

of his prior statements did not violate the confrontation clause.

jln State v. Bush, the Supreme Court of wyoming held

that the admission of prior statements from a witness that had no

recollection of her father killing her mother did not violate the

confrontation clause. 193 P.3d 203, 212 (wyo. 2008). After the

witness' mother died when the witness was very young, the witness

was placed with the department of family services. lee at 207.

The witness' grandparents noticed that the witness exhibited

unusual behavior, and sought treatment for her at a mental health

hospital. lee During her treatments, when the witness was

almost three years old, the witness made statements to her

counselor and psychiatrist implicating her father in the murder

of her mother, lee At trial, the witness was eighteen years

old, and testified that “she could not remember any of the events

in 1990.” lee at 207-08. She also testified that “the

counseling she had as a child pretty much made her unable to

remember what had happened.” yld. at 208. Defense counsel did

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not cross-examine her. lQ4 The prosecution called the witness'

psychiatrist and counselor, and they testified about the witness'

incriminating statements. ;dL

The court held that the admission of the witness'

hearsay statements did not violate the confrontation clause

because the witness “appeared at trial, was placed under oath and

testified; Thus, [defendant] was confronted with the witness and

had the opportunity to cross-examine her and the Sixth Amendment

was satisfied.” ;Q4 at 2l1. Relying on persuasive cases, the

court held that “what is important for purposes of the Sixth

.Amendment is that the defendant is confronted by the witnesses

against him at trial and has the opportunity to cross-examine

them.7 LdL at 2l2. x

Thus, other courts have held that the admission of

hearsay statements does not violate the confrontation clause

despite the declarant’s complete failure to remember the subject

matter of the statements. See also Mercer v. United States, 864

A.2d llO, ll3, 114 & n.4 (D.C. 2004) (holding that the “the

requirements of Crawford were met” where the witness was “unable

to recall in any meaningful way the events of the day of the

shooting, her testimony before the grand jury, or her testimony

in the first trial”); People v. Perez, 82 Cal. App. 4th 760, 766,

98 Cal. Rptr. 2d 522, 526 (2000) (“Even though [the witness]

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professed total inability to recall the crime or her statements

to police, and this narrowed the practical scope of

cross-examination, her presence at trial as a testifying witness

gave the jury the opportunity to assess her demeanor and whether

any credibility should be given to her testimony or her prior

statements. This was all the constitutional right to

confrontation required.”); United States v. Keeter, 130 F.3d 297,

302 (7th Cir. 1997) (holding that the admission of a witness'

affidavit and grand jury testimony did not violate the

confrontation clause even though the witness claimed an inability

to remember anything but his own namel. The cases discussed

above indicate that “when a witness is presented for

cross-examination, the Confrontation Clause does not bar the

admission of a prior statement.” State v. Legere, 958 A.2d 969,

978 (N.H. 2008); §g§h, 193 P.3d at 211, 212 (holding that the

admission of a witness' out-of-court statements did not violate

the confrontation clause because the witness “appeared at trial,

was placed under oath and testified”). Therefore, the admission

of the Complainant’s testimony did not violate the HawaiH

Constitution’s confrontation clause.

Finally, the policies outlined in State v. Fields are

not undermined in this case. In distinguishing the factual

circumstances of Fields, Delos Santos generally asserts that he

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did not have an adequate opportunity to test the “credibility and

veracity” of the Complainant’s prior statements. In Fields, this

court noted that the “trier of fact was provided with adequate

information to test the credibility and veracity of Staggs’ prior

statement insofar as it could have reasonably inferred that (1)

Staggs’ drunken state rendered her prior statement inaccurate or

unreliable, and/or (2) Staggs was not an innocent victim but an

aggressive participant in the incident who, while angry at

Fields, gave a false statement to the police.” Fields, 115

Hawafi at 523, 168 P.3d at 975;; This policy of providing the

trier of fact with adequate information to test the credibility

of an out-of-court declarants’ statements is not undermined by

allowing a witness with no recollection of the incident or her

statements to testify. §or instance, in this case, Delos Santos

was able to show that the Complainant was drunk that evening.

Thus, although a witness may not recall the incident or her prior

statements, the defendant may still impugn the credibility of the

witness.

Based on the analysis above, we hold that the admission

of the Complainant’s first statement that “my boyfriend beat me

up” did not violate the Hawafi Constitution’s confrontation

clause.

The concurring opinion observes that HRE Rule 802.1

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requires that the declarant is subject to cross-examination at

trial about the subject matter of the statement.” Concurring

opinion at 38-40. The concurring opinion then asserts that

HawaiH case law and the “commentary to HRE 802.1 suggest[] that

the same definition of the phrase ‘subject to cross-examination'

should be employed for purposes of the confrontation clause.”

Ld; at 40-41. We respectfully disagree.

Initially, the concurring opinion asserts that the

“ The concurring opinion also asserts that under “this court’s

precedent interpreting the Hawafi Constitution, the proposition that the mere

physical presence of a hearsay declarant at trial does not take the defendant

out of the realm of protection afforded him or her by the confrontation clause

has been established.” Concurring opinion at 20. The concurring opinion

rejects this court’s reading of State v. Sua, 92 Hawai‘i 6l, 75, 987 P.2d 959,

973 (1999), in Fields. Respectfu11y, these arguments are not persuasive in

light of our opinion in Fields.

First, the concurring opinion asserts that this court misread §gg

in Fields because if the declarant’s “mere physical presence at trial was

dispositive, as the majority holds in the instant case, Sua II's analysis

regarding the two-prong test is a lengthy and preliminary discussion amounting

to dicta -- Roberts should not have been addressed.” Concurring opinion at

24. However, Fie1ds established that a “fair reading of §ga indicates that

this court rejected Sua’s confrontation clause argument on two independent and

dispositive, but coequal grounds: (1) both prongs of the Roberts test were

met; and (2) Sua had a sufficient opportunity for cross-examination.” Fields,

115 Hawafi at 526, 168 P.3d at 978 (citing §g§, 92 HawaiT.at 75, 987 P.2d at

973). This opinion has not altered our interpretation of §ua in Fields, and

we decline to overrule Fields' interpretation of §ga.

Second, the concurring opinion asserts that this court’s

interpretation of §ua in Fie1ds is erroneous because it ignores that this

court has held that unavailability may be demonstrated by loss of memory.

Concurring opinion at 25, 26. The concurring opinion then concludes that our

“confrontation clause jurisprudence necessarily contemplates reaching the two-

pronged tests stemming from Roberts and Crawford, where the hearsay declarant

is physically present at trial but suffers from a loss of memory.” lQ4 at 25,

This argument was rejected in Fields. In Fields, this court held that

HawaiH’s confrontation clause “is not implicated where . . . the hearsay

declarant attends trial and is cross-examined about his or her prior

out-of-court statement.” Fie1ds, 115 HawaiH at 517, 168 P.3d at 969. Thus,

this court’s confrontation clause jurisprudence does not “necessarily

contemplate” reaching the unavailability prong of Roberts and Crawford when a

witness claims a loss of memory.

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“commentary to HRE 802.1 suggests that the same definition of the

phrase ‘subject to cross-examination' should be employed for

purposes of the confrontation clause.” lQL1 However, the

commentary to HRE Rule 802.l," on its own, cannot bind this

court’s construction of a constitutional provision.

The concurring opinion next asserts that, in Fields and

pre-Fields cases, this court adopted HRE Rule 802.1 as its test

for whether a witness appeared at trial for cross-examination.

Concurring opinion at 42-43. However, Fields’ adoption of

Crawford indicates that this court has not adopted HRE Rule 802.l_

as its test for whether a witness appears at trial for cross-

examination. §§g supra at 38-39. As discussed above, courts.

applying Crawford have concluded that a witness without

recollection of the subject matter of her statements still

appears for cross-examination. Therefore, we do not interpret

Fields to require cross-examination regarding the subject matter

of the statement to satisfy the confrontation clause. To the

extent that our cases have concluded otherwise, they were

displaced by our adoption of Crawford in Fields.

" Additionally, we note that Officer Kubo’s summary of the

Complainant’s statements was admitted as an excited utterance under HRE Rule

803 (b) (2).

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D. The Proper Relief Is To Remand For a New lrial.

At the ICA, Delos Santos asserted that “[a]part from

the inadmissible evidence regarding Officer Kubo’s testimony of

what [the Complainant] purportedly told him, the State failed to

adduce any evidence that Delos Santos had abused {the

Complainant], As such, there was no admissible evidence that

Delos Santos had intentionally, knowingly, or recklessly

physically abused [the Complainant], a family or household

member.” ln light of the discussion above, this argument is not

persuasive and therefore we remand the case to the family court

for a new trial.

When considering whether sufficient evidence supports a

conviction, courts consider the evidence in the Vstrongest light

for the prosecution” and the “test on appeal is not whether guilt

is established beyond a reasonable doubt, but whether there was

substantial evidence to support the conclusion of the trier of

fact.” State v. Richie, 88 Hawafi 19, 33, 960 P.2d 1227, 1241

(1998) (block quote formatting omitted) (quoting State v. Quitog,

85vHawaiE 128, l45, 938 P.2d 559, 576 (l997)). “‘Substantial

evidence’ as to every material element of the offense charged is

credible evidence which is of sufficient quality and probative

value to enable a person of reasonable caution to support a

conclusion.” ld. (internal quotation marks omitted) (quoting

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Eastman, 81 Hawai7i at 135, 913 P.2d at 61).

Even disregarding the Complainant’s more detailed

statement, her statement that “my boyfriend beat me up,” “her

testimony that she and Delos Santos were living together at the

time and the police officer's observations of her swelling and

marked chin, limp, and two-inch by two-inch circular red mark on

her thigh were sufficient to support a conviction for Abuse of

Family or Household'Member.” Delos Santos, dissenting op. at12

(Fujise, J., dissenting). Therefore, we remand this case to the

family court for a new trial.

IV . CONCLUS ION

Based upon the foregoing analysis, we vacate the ICA's

judgment on appeal and remand to the family court for a new

trial.

Stephen K. Tsushima z

Deputy Prosecuting Attorney,

for petitioner-plaintiff-appellee ¢>Lu44lu Ly~p¢B¢¥LL7¢LyrQ~

Kirsha K.M. Durante, Deputy 7

Public Defender, ('I'aryn R. Ka»o~.€.l§»gég,) %\_,

Tomasa, Deputy Public Defender,

on the brief§} for respondent- /¢?¢v\ 2 : éhAA»/E//

defendant-appellant

54