State v. Cordeiro

56 P.3d 692 Hawai'i, Plaintiff-Appellee,

STATE of CORDEIRO, Gordon J. Defendant-

Appellant.

No. 22065. Court of Hawai'i. Supreme Oct. 2002. Reconsideration Denied Nov. Lum, Honolulu, briefs,

Dwight on the C.H. defendant-appellant, J. Cor for the Gordon deiro. Prosecuting At- (Deputy Polak

Simone C. briefs, plaintiff-appel- torney), on the for the lee, of State Hawai’i. LEVINSON, NAKAYAMA, MOON, C.J., . RAMIL, JJ., Judge and Circuit

and McKENNA, vacancy; assigned by reason NAKAYAMA, J., concurring separately, and RAMIL, J., joins. with whom and LEVINSON, In all opinion. with this ceedings consistent Opinion of Court J. affirm circuit court’s respects, we other defendant-appellant Gordon J. Cordei- and judgment of conviction sentence. 94- appeals, in connection with Cr. No. ro 0522(3), judgment of the second from the I. BACKGROUND court, Boyd P. Moss-

circuit the Honorable presiding, convicting him of and man sen directly present appeal Inasmuch as the tencing him of murder in the for the offenses implicates proceedings, involves five criminal degree, in violation of Hawai'i Re second trials, sixth, it two we believe a and concerns (HRS) (1993),1 § 707-701.5 vised Statutes section, provide a short expedient, in this robbery degree, the first violation procedural synopsis, summarize each of Cor- (1993),2 § prohibited place 708-840 and HRS error, briefly points of deiro’s numerous firearm, § keep in violation of 134-6 HRS giving background factual rise to sketch the and, (Supp.1997),3 in connection with Cr. No. charges. discuss the facts the various We 97-0073(3), judgment from the same convict points germane of error to each Cordeiro’s ing sentencing him him for of and the offense fully III. section more infra degree, in murder in the first (1993)4 §§ violation of HRS 705-500 Synopsis A. Procedural 707-701(l)(d) (1993).5 ple raises a jury grand a re- On October points appeal, thora of of error on see infra against an Cordeiro Cr. turned indictment summary, I.B. In we hold that the section (hereinafter, Blaisdell No. 94-0522 “the plainly circuit court erred in its instruc ease”), robbing and mur- charging him with charge degree regarding of first tions Blaisdell, and, Timothy kidnapping Michael dering robbery accordingly, we vacate Cordei- Freitas, committing two firearms-related ro’s conviction of and sentence for first de offenses, mat- August all on 1994.6 The gree robbery pro for further remand la) Intentionally engages which provides § in conduct in relevant 1. HRS 707-701.5 707-701, § if the attendant ‘‘[e]xcept provided would constitute the crime [HRS ] person were as the believes person of murder in the circumstances a commits the offense be; intentionally degree person or if them to second which, (b) Intentionally engages person.” knowingly conduct causes the death of another person be- the circumstances as under be, 708-840(1 constitutes a substantial )(b)(i) lieves them to provides § in relevant 2. HRS step to cul- robbery in a course of conduct intended part: person "A commits the offense of if, person's commission of the committing minate in the in theftf,] in the course danger- crime. (2) person armed with a [t]he ... causing particular result is an person When a uses force [t]he ous instrument and crime, person guilty anyone of an person with intent element of the if, acting with person's physical attempt crime resistance or to commit the to overcome that liability required physical power "An act shall be to establish resistance[.J” state of mind committing speci- if it respect 'in the course of theft’ attendant circumstances deemed theft, crime, attempt in an to commit occurs fied in the definition theft, flight intentionally engages after the or in the in conduct which is commission attempt § step commission.” HRS 708-842 in a course of conduct intend- substantial " 708-840(2), (1993). §HRS 'dan- Pursuant to cause such a result. ed or known to gerous (3) firearm[.]” instrument’ means a not be considered sub- Conduct shall if, statutorily and is committed "Theft” is defined step this section unless it is stantial under alia, obtains, person or exerts control “[a] inter over, strongly crim- of the defendant’s corroborative property intent to de- the of another with inal intent. property.” § prive HRS 708- the other of the 830(1) (1993). 707-701(1) part provides § in relevant 5. HRS murder person the offense of commits “[a] 134-6(c) provides § in relevant intentionally HRS person degree or 3. if the in the first be confined "all firearms and ammunition shall person knowingly [a] the death of causes business, residence, place possessor’s or killer, person the hired in which event both hired except sojourn,” certain conditions. hiring under killer person responsible the for and the punished section!.]” under this shall part: provides § in 4. relevant HRS 705-500 (1)A in the Blaisdell case guilty attempt the indictment person to com- 6. Count of of an de- charged offense of second Cordeiro with the person: mit a crime if the victim) proceeded alleged May resulting- prejudice. to trial in was ter the without counts, hung jury Thereafter, ain on all and the circuit the consolidated matter'—now Iona, court declared a mistrial. Blaisdell, Cornelio, comprised of the cases—proceeded Kapika to trial in June 19,1995, May being- On while Cordeiro August jury acquitted On the case, tried for the first in Blaisdell time the attempted degree first in Cordeiro of murder jury grand indicted him in with connection Kapika with connection the and Cornelio (hereinafter, drug related several offenses However, case”). jury cases. the convicted Cordeiro drug circuit “the After the court murder, case, attempted degree first as a mistrial in declared the Blaisdell charged, in the Iona prosecution drug- moved to case. In consolidate connection case, ease, with case the Blaisdell the circuit jury acquitted but with the Blaisdell prosecution’s court denied the motion. kidnapping Cordeiro of offense of but murder, degree convicted him second first Subsequently, while awaited Cordeiro re- robbery, degree and the two firearms-related case, in in trial the Blaisdell he was indicted offenses.7 matters, attempted foui* other all for first murder, degree supra see 4 and 5. In court, however, subsequently 7. The circuit dis [Qacilitate intent to felony the of a commission using missed Cordeiro's conviction of a firearm thereafterf.]”); flight charged count separate felony, in a the commission of in viola degree robbery, in him with first violation of 134-6(a), supra § pursu tion of HRS see note 2; 708-840(1)(b)(i), supra §HRS see note and Jumila, holding ant to this court's in State v. charged carrying count 5 him with or use of a (1998). Hawai'i P.2d 1201 separate felony, firearm commission of a 134—6(a) (“It (Supp.1997) § violation of HRS in claim. point prosecutorial is that circuit misconduct Cordeiro third the Cordeiro’s

comí; (1) in plainly consolidating argues: deputy prosecuting erred the that two Cornelio, Iona, Kapika (DPAs) and cases with the attorneys in tandem” “work[ed] dur- case; (2) accordingly, urges counsel; Blaisdell Cordeiro ing his trial to “harass” his that all of his and this court to vacate convictions objections frivolous made in separate remand for trials the Blaisdell purpose interrupting the for the of defense and Iona cases. (3) that, cross-examination; in counsel’s “constantly closing argument, DPA re- remaining points of Cordeiro’s error be- personal- to a liar and ferred] [Cordeiro] as to vacate all of convic- seech this court his ly prosecution’s] wit- voueh[ed] [the for tions for a new trial. His and remand nesses”; (4) and that cumulative effect (1) point fourth is that the circuit court: deprived erred, (a) foregoing conduct Cordeiro objection, in admitting his over Consequently, a fair trial.8 Cordeiro ar- involvement with ille- evidence Cordeiro’s (b) in gues denying court erred gal testimony a circuit drugs regarding and allegedly a his two a mistrial. Cordeiro’s threat directed motions for he witness; (2) instructing plainly point erred of error is an eleventh final inef- claim, regal’d purpose with to the for which fective assistance of counsel he which such points. it could consider “other bad fashions from a number of his other (Cordeiro objected having acts” evidence argues that was denied the Cordeiro ef- trial). to the instruction at fifth Cordeiro’s by counsel virtue de- fective assistance of point court is that the circuit erred in allow- (1) object to to fense counsel’s failure M.D., Mamoukian, ing Anthony patholo- a (2) motions, prosecution’s joinder to a file prosecution, gist for the to who testified allegedly to motion dismiss the defective opinion regarding trajectory render an indictment, robbery Blaisdell count Blaisdell; according of the bullet that killed object to circuit court’s de- Cordeiro, quali- to Dr. Mamoukian was not instruction, robbery “to move gree for expert.” fied as a “homicide reconstruction prompt limiting instructions” connection argues point, As his sixth Cordeiro evidence, with the bad acts” “other precluding circuit him from court erred allegation adequately investigate an Hill, purported calling Wayne a “homicide prosecution knowingly per- introduced expert,” By as a reconstruction witness. jured testimony. so, doing circuit Cordeiro contends right court “his constitutional violated Background C. Factual present complete defense.” In his sev- point, argues limiting enth arises from the mur- The matter witnesses, his of various cross-examination August Timothy der of Blaisdell court violated his circuit constitutional attempt of his which in the course occurred eighth point, In his right to confrontation. marijuana, and the purchase pound that the circuit court erred Cordeiro claims subsequent by evade efforts objec- prosecution, over his allowing the for the prosecution and conviction crime tion, testimony regard- adduce Cornelio’s eliminating only eyewitness to the mur- beliefs; ing religious Cordeiro asserts his der, following Michael Freitas. testimony simply way to “a such trial, in was adduced at second Cordeiro’s credibility,” in violation bolster [Cornelio’s] 1998, in with July August connection (HRE) of Evidence Rule Hawaii Rules Blaisdell’s murder. (1998). point ninth Cordeiro’s denying court his motion the circuit erred 1. The case Blaisdell trial; Cordeiro, according new During Blaisdell was perjured the summer prosecution knowingly adduced tes- Makawao, Maui and living parents point of is a timony. tenth error reprosecution. alleged prose- as to bar not assert that Cordeiro does egregious in this case was cutorial misconduct so Kaya’s purchase pound marijuana working Repair, at Collision and an a of for $800.00 repair July, money. shop. displayed urged In late and a roll of Moor automobile Blais- Freitas, careful, acquainted who dell met was with Blaisdell to be and Blaisdell assured cousin, through okay. a his I am “[i]t Blaisdell at Freitas’s house uncle that with [Frei- Maui, Pukalani, purpose backpack for of a tas].” examin- Blaisdell left with and foot, up ing damage jeep, proceeded leaving to which some Freitas’s had the street on his recently ear “flipped.” During meeting, them behind. marijuana to Freitas offered Blaisdell some thereafter, Shortly Freitas observed Blais- and, they smoking, smoke while were Blais- smoking cigarette; dell in of his a front house to dell mentioned Freitas that he wanted to way girl- on Freitas was himself his to his purchase some. Freitas offered to assist friend’s house at the time. Blaisdell asked calls, by making telephone a Blaisdell few and, a Freitas for ride after Freitas deter- specific arrangements

but no were made. girlfriend home, mined his not at was he so, people agreed although subsequently Blaisdell had stated to several to do he trying pur- around this time that was to that he was not he claimed then aware Blais- pound marijuana a for dell’s chase intended destination. Blaisdell direct- $800.00. Tanouye, an Kenneth Blaisdell’s friend and co- ed Freitas to area of Pukalani known as worker, row,” supposed money, at supply was to “skid which Blaisdell instructed planned marijuana park alongside and the two to divide the Freitas to the road. fact, approximately

between them. one minutes, approximately . After fifteen murder, Tanouye to prior week Blaisdell’s truck, recognized belonging which Freitas given purchase, had him for a cash $800.00 Shirota, pulled up parked to and Shane place, but the transaction had taken never front of Freitas’s vehicle. Blaisdell exited money. and had Blaisdell returned the backpack with Freitas’s vehicle his in his thereabouts, hand, August approached passenger’s On Blais- side of the truck, by began speaking dell and Freitas met chance front of occupant with the girlfriend, who through house of Freitas’s lived across window of vehicle Freitas, Meanwhile, passenger’s from Blaisdell street Blaisdell. asked side door. vehicle, Freitas whether he had able to who in. his been secure remained decided to any marijuana, him cigarette; and Freitas told smoke a at moment he he looked pound lighter, knew how Blaisdell could obtain of down to his car activate he heard a But, marijuana gunshot. for lying “seeded” He then $800.00. observed Blaisdell' morning August by road, Freitas bleeding. tele- the side his head phoned at Blaisdell work and informed him engine Freitas to start that he had not been to contact able his vehicle, so, his before do but he could Cordei- source; neveidheless, he instructed Blaisdell ro, school, recognized high who Freitas from subsequent- to call him work. after Blaisdell up gun ran with pointed to him at his head. ly Tanouye going stated to that he was to Cordeiro ordered Freitas out the truck attempt purchase marijuana that night, to him carry body instructed Blaisdell’s Tanouye again gave once Blaisdell gulch into a the side of the road and to in cash. Blaisdell never revealed to $800.00 rubbish, body cover including some source, identity Tanouye but he did machine, an E-Z Glider exercise which was mention going that he was meet with nearby. laying comply- While Freitas Freitas. him, ing, say any- Cordeiro warned “Don’t telephoned approxi- thing your family

Blaisdell or I’ll hurt Freitas and friends.” mately p.m. up covering 4:20 to follow on them After earlier Freitas finished Blaisdell’s conversation, Freitas, but body, again Freitas advised Blaisdell but threatened ultimately he had been to contact his allowed him unable source As leave. Freitas busy vehicle, going away and that in his eve- drove he noticed Blais- Nevertheless, hat, ning. glasses, backpack lying when Blaisdell left his dell’s approximately roadway. speak p.m., anyone house at 4:45 he told his Freitas did not uncle, Moor, going that he was about Donald the murder some time. body approxi- at par-

Blaisdell’s was sive lifts from Shirota’s truck discovered uncovered 11, p.m. with, mately August 9:00 on 1994 and though ticles that consistent not were Manoukian, Anthony M.D., pathologist to, a unique discharge from a firearm. Hospital, Maui Memorial examined Blais- police in recovering The never succeeded body during August morning dell’s of weapon or the in murder $800.00 cash Prom initial 1994. his observation allegedly possession Blaisdell had in his when rigor lividity mortis in Blaisdell’s he was killed. body, Dr. Manoukian that Blaisdell estimated 21,1994, On October Cordeiro was indicted had been dead sometime four and between with Blaisdell’s connection murder. twenty-four per- hours. Dr. Manoukian autopsy August an on 1994 and formed The murder a result of determined Blaisdell died as cases gunshot right a wound to side 17, 1995, gun powder May Based on the residue on during head. On Cordeiro’s first face, case, Iona, Dr. Monoukian trial Blaisdell’s estimated Blaisdell an John weapon the barrel of the had Maui Community inmate at the Correctional (MCCC), fired from a six and been distance between Center where Cordemo had been arrest, twenty-four inches. He also determined held his told after the MPD entering right after side of Blais- Cordeiro had discussed the Blaisdell murder head, the bullet during dell’s had traveled downward with him. Iona and Cordeiro had met and to the left. prior summer to them incarcera- tion, through them involvement the sale 13, 1994, August Depart- On Maui Police crystal methamphetamine. Around end (MPD) ment Camara Detective Richard beginning of 1994 or while Iona and questioned regarding Freitas Blaisdell’s both Cordeiro wei’e incarcerated death, but Freitas had denied that he been MCCC, Cordeiro related to Iona details re- presence day question. on Blaisdell’s garding impor- Blaisdell’s murder and the thereafter, however, Shortly did Freitas dis- testimony prosecu- tance of Freitas’s co-worker, “who[,] Shevling, Dave close to Iona, planning tion. asked who Cordeiro was less[,] more or was at the scene.” MCCC, escape to kill if from to Freitas 12, 1994, September an unidentified On out; get gave he was able Iona weapon fired at Freitas while he was male n three maps containing the information neces- truck, driving shattering his rear win- sary to locate Freitas. Cordeiro advised reported Freitas to dow. the incident going Iona that to mon- he inherit some day, MPD the next but still did reveal ey and would assist Iona in the event any information about murder. Blaisdell’s Freitas, although Iona killed Cordeiro never Nevertheless, Freitas that Cordeiro feared specified exactly how he would assist Iona attempting kill him to and decided tell pay whether he would Iona a certain sum sister-in-law, Sakamura, Lynette about money. 16,1994, death. On Frei- Blaisdell’s October Freitas, murdering Iona interest lost had wit- tas disclosed Sakamura what he however, learning from William after Corne- August sought on her nessed 1994 and lio, inmate, another MCCC that Cordeiro had urged advice. Sakamura Freitas tell his also asked Cornelio to murder Freitas. did, parents, subsequently they which Moreover, subsequently Iona learned promptly attorney Finally, hired an him. provided his with cer- Cordeiro had cellmate a formal gave Freitas October information, tain which Iona had shared regarding to Detective Camara statement Cordeiro, case; regarding Iona’s own criminal 11,1994. August murder on Blaisdell’s consequently, longer Iona no trusted Cordei- police obtained a warrant search ro. but to dis- Cordeiro’s residence were unable linking to Blais- In cover October while Cordeiro was await- addition, case, police ing obtained trial dell’s death. his second the Blaisdell police regarding a warrant search Shirota’s truck. Adhe- Cornelio contacted the Cor- marijuana purchase pound arranged kill him to alleged attempt to hire deiro’s Cordeiro, it succeed in introduc- that had from but did claimed Cordeiro Freitas. Cornelio only eyewitness showing was the that was ing told him that Freitas Cordeiro known, Blaisdell, in his murder case. Corne- including by Cordeiro to use widely that, heard and, therefore, when Cordeiro lio further stated drugs accord- illegal and sell Iona, escape with planning was to that he theory, to some- ing be prosecution’s to the pay him that he would told Cornelio Cordeiro likely to contact one whom Blaisdell would $5,000.00 Freitas. that he killed the event marijuana. seeking purchase to he were place, but escape took Cornelio The never murdering Blaisdell denied Cordeiro signed a contract stat- claimed Cordeiro of the mur- being present at the scene even pay grandmother would ing that Cordeiro’s that, on the afternoon der. He testified $5,000.00 get out of if he was able Cornelio friend, 11, 1994, he and a Curtis August and kill Freitas by other means the MCCC Diment, truck to Maka- had driven Diment’s trial. second prior to Cordeiro’s pick up lum- some wao Feed and Lumber inmate, January a third MCCC ber, planned with which to build Cordeiro approached prosecutor’s Kapika, Nedric garage. They purchased in his some shelves claiming that had office Cordeiro p.m. around 4:00 and returned the lumber In contrast him to murder Freitas. to hire house, where Cordeiro insisted Cordeiro’s Iona, Kapika’s and recollection to Cornelio of the had remained for the rest regarding had said the Blais- what Cordeiro constructing evening, eating pizza and remarkably detailed and murder was dell garage. shelves for his theory prosecution’s similar had According Kapika, Cordeiro case. departed that he had Cor- Diment testified the details of Blaisdell’s recounted two had unloaded the house after the deiro’s com- they working the MCCC while were lumber, present but that Derek Sakoda was lab, what Kapika inputted had puter that he was testified when he left. Sakoda nearly into told him verbatim had when Cordei- present at Cordeiro’s residence computer.9 from the lumber ro and Diment had returned trial 3. second Cordeiro’s unloading shop and had assisted them by the principal evidence introduced The not truck. did lumber from Diment’s Sakoda at his second prosecution against Cordeiro he had taken break remember whether testimony. eyewitness trial Freitas’s that, eat, during Cordeiro’s but he admitted corroborated, testimony inter Freitas’s trial, he had testified he had alia n testimony of witnesses who leaving Cordeiro’s done so. He remembered attempt- that Freitas was were either aware approximately p.m., but con- at 8:30 house marijua- purchasing ing to assist Blaisdell memory of Au- that his of the events ceded together two on their na or had observed the foggy.” “kind of Shawn gust 1994 was' row,” fingerprints, way latent to “skid that he had been Takahashi testified Freitas’s, E- partially on the which matched August 1994 be- at house on Cordeiro’s machine, Dr. Ma- Z exercise Glider approximately p.m. to 5:45 5:30 tween testimony regarding gunshot noukian’s observing p.m. Cor- 9:30 to 9:45 He recalled Blaisdell. wound killed working on his shelves and deiro construct bike, although he admitted dirt prosecution was never able estab- evidence, presence entire time.10 lish, not in his that Blaisdell had was by direct courtroom, computer pro- Takahashi had exited Kapika outside the that he used a claimed place gram the monitor in approached that showed stars on had Sakoda. John courtroom and letters, Kapi- that Cordeiro was unaware allegedly so Sako- overheard Takahashi ask Freitas Gerrick, Lee the educational da, ka’s "dictation." program gone?” long Sakoda "How were Gordon MCCC,however, supervisor testi- at allegedly responded, the fuck should I "How computers such the MCCC contained no fied that my babysit him.” Nei It turn to know? wasn't program. apparently aware or Sakoda were ther Takahashi father. was Michael Freitas’s that John Freitas Freitas, father, Michael Freitas’s testified 10. John confronted Sakoda When sitting August while he was sister, Denise, ficient, inconsistent, erroneous, testified she mis- leading. had arrived at the Cordeiro residence p.m. observing around 5:00 and recalled Cor- [Ejrroneous presump- instructions are (Hank deiro, Sakoda, DeCoite), a friend tively ground harmful and are for re-

lounging around house. She did not affirmatively appears versal it unless area, seeing garage recall leave the Cordiero from the record as whole that though presence in his she was not the entire prejudicial. error was not evening. [Ejrror is not to be viewed isolation Cordeiro admitted that he was aware purely considered the abstract. Shirota, who lived across the street from light It must be examined of the him, habitually keys kept the to his truck in given proceedings entire the effect ignition its had that he borrowed Shiro- which shows it the whole record to be time, ta’s truck from but time denied context, ques- entitled. In that the real borrowing at during Shirota’s truck time tion becomes there is a reason- whether only 1994. He a few estimated minutes possibility may able that the error have required were from to drive his house to contributed to conviction. “skid row.” possibility If there is such reasonable Cordeiro also that he had denied ever at- case, in a criminal then the error is not tempted anyone to kill to hire Freitas. In- doubt, beyond harmless a reasonable deed, discussing ever denied his judgment and the of conviction on which anyone case with at incarcerated the MCCC. may it have been based must set however, that, testify, during didHe Novem- aside.... 1994, attorney ber him when his sent three reports 199, 204, pages police Valentine, hundred and discov- State v. 93 Hawai'i 998 review, ery 479, (citations envelope material had P.2d 484 and internal omitted) (brackets been he had quotation unsealed when received the signals Apparently, material at the it original). MCCC. had Cordeiro, mistakenly

been to Brian delivered Valdivia, 465, 471-72, v. 24 State 95 Hawai'i inmate, who another MCCC stated to Cordei- (2001). 661, P.3d 667-68 ro that both had he and roommate read reports. Multiple Charges C. Consolidation Of Single A Trial II. OF REVIEW STANDARDS appeal, court’s “On a trial order con Sufficiency Charge A. AOf solidating [Hawaii cases for trial under “ [or ‘Whether an indictment com (HRPP) ] Rules Penal Procedure Rule 13 plaint] sets forth all essential elements of an shall be disturbed absent abuse of law,’ charged] question [a is a offense .... Doe, discretion.” In re John Born on Octo novo, which ‘right/ we review under ele 26, 1977, 265, 273, 79 900 ber Hawai'i P.2d Merino, wrong,’ v. standard.” 81 Ha State (citations omitted). 1332, 1340(App.1995) Cf. 198, 212, 672, (quot wai'i 915 P.2d Renon, 828 P.2d Wells, ing State v. 78 Hawai'i 894 1266, (1992) (“We [circuit] review the omitted)). (1995) (citations P.2d join single in a court's decision to defendants discretion.”) for an trial abuse of Jury B. Instructions jury instructions When or the Admissibility D. Evidence The Of appeal, at omission are issue on thereof whether, admissibility of the standard of evidence re- review when whole, quires read and as a standards review de considered different prejudicially pending given particular instructions are insuf- on the rule cross-examination, care, during I I even I his statement responded, Sakoda don’t remember. don’t because getting your story you paying if “Where wasn’t even attention he did ask me from? : spying say I You on me out there?.... didn't it. that.” a witness Pulse, question of whether [t]he 83 Hawai'i at issue. State v. (1996). expert a matter ad- qualifies as an sound discretion dressed application particular of a eviden- When court, will and such determination trial yield only one correct tiary rule can is a clear unless there not be overturned result, appellate proper standard for abuse of discretion. right/wrong standard. is the review However, of discre- the traditional abuse applied evaluating flexibility

tion standard should be Liberality and rule; of evidence that re- case of those rules qualifications should be the “judgment call” on quire expert required proposed “should not be court. satisfy overly the trial test of his an narrow has The tidal court qualifications.” own (citations 246-47, 925 P.2d at 814-15 Id. determining com- wide discretion omitted). expert with as an petency of witness Hawai'i “Prior bad act” evidence under subject. respect particular to a (HRE) 404(b) of Evidence Rule Rules 504, 496, 850 Cababag, Haw.App. 9 v. State 1) (1993) “it is relevant is admissible when (1993) 716, (citing v. 720 Larsen State P.2d 2) prejudicial.” probative than and more 304, Ass’n, 302, 640 Haw. & Loan 64 Sav. 172, 183, Maelega, Hawai'i 907 v. 80 State (1982), Graham, 286, M. Feder- P.2d 288 (citations omitted). (1995) 758, A P.2d 769 § Evidence 6642 al Practice and Procedure: trial court’s that evidence is determination Ed.1992)). (Interim meaning HRE within the “relevant” (1993) is under the Rule 401 reviewed E. Limitations On Cross-Examinations v. right/wrong standard of review. State The law is settled 229, 247, 797, Pulse, 925 P.2d 83 Hawai'i trial scope [is] of cross-examination at (1996). However, a trial court’s bal 815 of the trial ... within the discretion ancing probative prior bad of the value of its The trial court’s exercise court.... prejudicial effect act evidence scope cross-exam- to limit the discretion HRE Rule 403 of such evidence under will not be ruled as reversible error ination for abuse of discretion. is reviewed repetitious it limits irrelevant and when An abuse of discretion occurs See id. the limitation questions [and counsel “clearly when the court exceeds prejudice not result manifest does] disregards rules or bounds of reason to the defendant. principles of law to substantial detri litigant.” v. Furuta party ment of a State 383, 399, Okumura, 894 78 Hawai'i State v. 51, ni, 172, 179, 76 Hawai'i 873 P.2d 58 80, Young, 8 (quoting v. P.2d 96 State omitted). (1994) (citations 285, 145, 151, (quot 290 Haw.App. 795 P.2d 651, Faulkner, Haw.App. 654- ing 1 State v. Torres, 417, 421, 85 Hawai'i 945 P.2d State v. denied, (1981)), 55, 940, 943-44 cert. P.2d 624 omitted). (footnotes 849, (App.1997) 853 (some (1990)) 669, 833 P.2d 901 71 Haw. circuit court’s de We review the ellipses and some added brackets testimony expert for abuse cision admit original). Vliet, 94, v. 95 Hawai'i discretion. State See A Mo- (2001); Court’s Denial 107, 42, F. The Circuit 55 v. Fukusa 19 P.3d State Of 32, 462, 496, New Trial ku, tion For Hawai'i 946 P.2d 66 85 172, 180, (1997); Maelega, v. 80 Hawai'i State hearing on a judge, trial at a The Montalbo, 758; (1995); v. 907 P.2d 766 State trial, the trier of motion for new acts as 1274, 130, 140-41, 1281 Haw. 828 P.2d 73 348, State, 846 fact. Martinez v. S.W.2d (1992). jurisdiction, (Tex.App.1992). In this 349 subject to are person an a trial court’s FOFs question whether a is ex- [T]he standard of review. clearly erroneous question person law. pert is a 307, 328, Hutch, 861 75 Haw. v. expert, and there is State is or is not an either omitted). (1993) (citations 11, However, 22 P.2d only right one answer. 1) when, clearly specific “An erroneous de- test: that there were FOF spite support finding, reflecting errors or omissions coun- appellate skill, judgment, court is left with the definite sel’s lack of dili- 2) firm that a conviction mistake has gence; and that such errors or (citations Id. and in- been committed.” omissions resulted either the with- omitted); quotation marks impairment ternal see drawal or substantial Batson, 236, 246, also v. 73 Haw. potentially State meritorious defense. 924, 930, 831 P.2d reconsideration de- Silva, 419, (quoting v. Haw. Id. (1992). nied, 625, 73 Haw. 834 P.2d 1315 (1993)). 439-40, 864 P.2d “De

And ‘poten termining whether a defense is evidence, is substantial requires [w]here there tially meritorious’ an evaluation which is credible evidence of sufficient probable, possible, of the rather than the quantity probative justify value to effect of the defense on the decision reaching reasonable conclu- Accordingly, showing maker.... no FOFs, support required sions the FOFs prejudice prove ‘actual’ Moreover, ap- cannot be set aside. an of counsel.” Dan ineffective assistance pellate pass upon State, will not court issues 76 Hawai'i 879 P.2d dependent upon credibility (1994). of witnesses evidence; weight and the this is 462, 479-80, Fukusaku, Hawai'i State v. province judge. of the trial (ellipsis origi- 946 P.2d 49-50 nal). Amfac, Inc. v. Beachcomber Inv. Waikiki Co., 116-17, State, 20, 26-27, 979 Barnett v. 91 Hawai'i denied, 650, reconsideration 843 (brackets 1046, (1999) ellip- P.2d 1052-53 (1992) (citations quo- P.2d 144 internal original). points sis in omitted). tation marks Error I.Plain Furutani, 172, 179-80, 76 Hawai'i

State v. “ may recognize plain “We error (1994). 51, 873 P.2d 58-59 when the error committed affects substantial ” G. Denial A Motion For Mistrial Of Jenkins, rights of the defendant.’ State v. (2000) 87, 101, 13, of a motion for mistrial “The denial 27 93 Hawai'i 997 P.2d Cullen, 1, 8, is within the sound discretion of the trial (quoting v. 86 Hawai'i 946 State (1997)). upset 955, court and will not be absent clear HRPP Rule P.2d 962 See also (“Plain 52(b) (1993) Rogan, of v. 91 affecting abuse discretion.” State error defects 405, 411, although Hawai'i 984 P.2d 1237 rights may be noticed substantial Loa, 335, 349, (citing v. Hawai'i 926 they brought State of were not to the attention 1258, 1272, denied, court.”). P.2d reconsideration (1996)).

Hawai'i 928 P.2d 39

III. DISCUSSION

H. Assistance Counsel Ineffective Of Although Degree Robbery A. The First Defective, Charge Fatally reviewing

In an as Was Not ineffective claim, Plainly Erred In court must The Court sistance of counsel this Circuit assistance, Instructing Jury In The Connection “[w]hen determine whether the whole, Respects. provided ... That In Two as a With viewed Offense range competence of defendant within the argues that of and his conviction attorneys of in criminal cases[.]” demanded degree, robbery in the first sentence for Richie, 19, 39, 88 Hawai'i 960 P.2d 708-840(l)(b)(i), § pursuant see su- to HRS (1998) (citations 1227, 1247 and internal pra must reversed because: note omitted). addition, quotation marks him charging with first de- the indictment court has also held [t]his (a) robbery expressly to gree failed name (b) against whom was used and person has of force the defendant the burden estab- theft; person who was the victim the lishing assistance of coun- ineffective and, alternatively, that the circuit court following two- and must meet the sel noted, instructing already stipra eired connection As we have see note robbery charge. allegedly with the Because he did not the time Cordeiro committed 708-840(l)(b)(i) trial, degree robbery, § urges first raise either issue at this HRS provided person relevant plain “[a] court to invoke the doctrine of error. robbery commits the offense of contends' count four if, committing the course of theft sufficiently of the Blaisdell indictment al- ..., person dangerous [t]he armed with a leged degree robbery the offense of first but n person instrument and uses [t]he force robbery that “the conviction concedes should against person anyone present with inadequate jury be vacated due to instruc- person’s physical intent overcome that re- agree. tions.” We physical power sistance or of resistance^]” Count 4 of the Blaisdell indictment tracked the indictment Count Blais- U statutory verbatim, language nearly this al- fatally dell case is not defective. leging that When a defendant fails to chal day August, on or about 11th lenge sufficiency charge of a in the trial Maui, County Hawaii, State of and, instead, plain court invokes error CORDEIRO, GORDON J. in the course of challenge charge for the first time committing theft and while armed appeal, instrument, wit, revolver, dangerous anyone did use force governed by our review is “ the rule per- with intent to overcome ‘[charges] tardily challenged which are physical physical power son’s resistance liberally [after conviction] are construed ” resistance, thereby committing the of- Motta, validity.’ in favor of State v. Robbery (1983)[.] Degree fense the First Haw. 708-840(l)(b)(i) violation of Section ... The “liberal construction standard Hawaii Revised Statutes. post-conviction challenges to [a charge] will not means we reverse a Thus, charge this is not a case in which the upon conviction based a defective “cannot within charge reason be construed to [charge] unless can the defendant show a crime.” prejudice [charge] that or the cannot Nor does the record reflect that charge within reason be construed to a prejudiced by charge’s Cordeiro was the fail 91, crime.” 657 P.2d at 1020. [Id.] person against ure to name the whom he Elliot, [314, 316], v. Hawai'i [State 77] allegedly or used force the victim of the [377,] ], (App.1994) 884 P.2d 379 [ point theft. At no did Cordeiro file a motion Indeed, particulars. for a bill of his alibi Elliott, 309, 311, v. 77 State Hawai'i 884 P.2d defense—i.e., that not at he was the scene of (1994) (some 372, 374 internal citations omit way by the incident at all—was in no affected ted) (some origi in brackets added some respects. charge’s specificity the lack of in these nal); Merino, see also State v. 81 Hawai'i Smith, 95, State v. 66 Haw. 657 . Cf 198, 212, (1996); 915 P.2d 686 State v. (holding P.2d 1022 that an indictment for Smith, (1983). 66 Haw. 657 P.2d 1022 degree robbery specify second that failed to Generally speaking, charge a drawn from the person against that the whom force was used language proscribing of the statute the of physically present or the owner of the fatally fense is defective. v. See State because, error, property plain was not inter Israel, 66, 73, 78 Hawai'i 890 P.2d 310 alia, there was no doubt that that was what (1995); Jendrusch, 279, 282, v. prosecution alleging).11 the (1977); Tuua, 567 P.2d State v. Haw.App. Accordingly, 1184-85 we hold that the failure of (1982). count of the Blaisdell to indictment either erroneous, prosecution improperly argued alternatively, 11. The Freitas. While see infra III.B.2, jury, specific unanimity prosecution's argument absence of in- section the was a struction, by faulty jury that it could convict Cordeiro find- function of the circuit court’s instruc- or, tions, ing against charge. used force either Blaisdell rather than defect in the argues “dangerous al- instrument.” Cordeiro person against whom Cordeiro name the plainly in three circuit court erred the or the victim of the theft legedly used force respects giving foregoing instructions. charge fatally defective did not render this case. plainly erred in a. The circuit court fail- jury that it was ing to instruct jury instructions 2. The circuit court’s unanimously to required agree to as degree regarding the of first offense against tvhom Cordeiro person prejtidicially robbery were erroneous. used force. robbery degree first In connection with the First, argues cir that the Cordeiro jury charge, prosecution argued to the plainly failing give cuit court erred finding that Cordeiro “used force instruction, i.e., failing specific unanimity anyone present against person of jury required that it was to instruct the person’s physical resistance overcome unanimously identity of the agree as to the resistance,” person of physical power of “the against whom he used force—either person Frei- anyone present could be either Michael prosecution con or Freitas. The Blaisdell Tim Blaisdell himself.” tas or it could be court’s error this the circuit cedes court, part, did not instruct circuit its vacating first de regard warrants unanimously jury required that it was robbeiy gree conviction. identity person against agree as to the of the record confirms Our review Rather, cir- whom used force. prejudicially circuit court’s instructions were juiy that generally cuit court instructed the erroneous, inasmuch insufficient and, with its must be unanimous” “verdict sep two adduced evidence of robbeiy, respect degree instructed to first culpable arguably and distinct acts arate jury as follows: requisite “use of force” supported the indictment, 4 of the Defen- Count (i.e., shooting and threat Blaisdell dant, Cordeiro, charged Gordon J. firearm) (2) with a failed ening Freitas robbeiy degree. the first the offense particular act on an as to the make election robbeiy A commits the offense conviction, seeking which it was the basis of if, in degree first the course only a represented theft, with a dan- committing he is armed but that either single was committed offense force gerous instrument and he uses guilty as to first support a verdict act could anyone present with person of Arceo, 84 Haw robbery. See State person’s physical to overcome the intent 1, 32-33, P.2d 874-75 ai'i physical power of resistance. resistance separate and distinct (holding that “when elements There are three material single within culpable acts are subsumed degree, robbeiy in each offense of support a ...—any of which could count one prosecution prove must be- of which the is the defendant conviction thereunder—and three ele- yond a doubt. These reasonable charged by jury a of the ultimately convicted one, 11th that on or about the ments are: offense, right constitutional the defendant’s 1994, County day August, the ... unless is violated to a unanimous verdict Maui, Hawaii, was the Defendant State of spe required is to elect the prosecution the theft; two, committing and course of the relying it is to establish upon cific act which so, doing the Defendant that while charged of ‘conduct’ element instrument; and dangerous with armed jury gives a trial court or ... fense[ ] ^ so, three, doing the Defendant that while ]”). But see unanimity specific instruction[ anyone force used 440, 24 P.3d 32 Hawai'i Apao, v. 95 State per- to overcome that present with intent (2001) (“[A] unanimity is instruction specific power physical physical resistance son’s (1) is not defined required if the offense not of resistance. being it from preclude as to in such a manner (2) and continuous offense jury proved as a instructed the circuit court then of, and “theft,” alleges, adduces evidence statutoiy regarding the definitions theft,” actions eonstitut- argues that the defendant’s committing and “in course of 408 conduct.”);

aed continuous course of verdicts in both only offenses but Valentine, 208, 199, 479, (at- 93 Hawai'i 998 carrying P.2d one penalty the more severe (2000) (holding specific unanimity tempted 488 that a opposed robbery). murder as required Choy, instruction is not if the Ah approached defendant’s the defendant continuing conduct constituted cashier to purchase course malee small as a conduct). ruse, neck, stabbed her and immedi- ately open register reached into the and Because circuit court’s insuffi money. removed We held the at- jury prejudiced cient instructions tempted robbery murder and the occurred right substantial constitutional to a unani concurrently; legis- we concluded that the verdict, jury mous “plain.” the error was lature never intended that a defendant be Arceo, 33, See 84 Hawai'i at 928 P.2d at 875. robbery convicted of both in the first de- Correlatively, “inasmuch say as we cannot gree component and its attempt- offense of possibility there was no reasonable ed murder absence evidence that the circuit court’s error contributed to [Cor- the defendant committed both offenses ], deiro’s] conviction[ we hold that the error separately in time. beyond was not harmless a reasonable Denton, 46, 50-51, State v. 71 Haw. doubt[.]” Id. We therefore 781 P.2d vacate Cordeiro’s (1989). 664 degree § robbery first See also 701- conviction and HRS remand 109(1)(e) (“[a] may the matter to defendant ... the circuit court for a new trial convicted of as to Count 4 of more than if the Blaisdell one offense ... indictment. However, infra, [t]he offense is defined continuing because we hold as a section course of conduct and prosecution may only III.A.2.b that retry defendant’s course of conduct uninterrupted, for degree robbery first unless law provides specific periods basis that his of conduct threat to Freitas con constituted offenses”); force,” separate stitute requisite Hoey, “use of State v. there will now be (1994)(“It Hawai'i specific no for a P.2d unanimity need instruction. possible kidnapping robbery charges b. The plainly circuit court erred in the against a merge, pursuant defendant to byfailing Blaisdell case to instruct the 701—109(l)(e), §HRS under circumstances that, jury (1) under certain circum- intention, which there is but one one stances, charged general (2) impulse, plan, and one the two offense of first degree robbery merges with the parcel offenses continuing are of a charged degree second mur- uninterrupted conduct, course of offense of precludes der and convictions both the law provide does not specific periods separate offenses.”); of conduct constitute offenses. efi 701-109(l)(a) (“[w]hen §HRS the same con Relying on Choy, State v. Ah duct of a may defendant establish an element (1989), Haw. 780 P.2d 1097 offense, of more than one [t]he defendant argues that plainly the circuit court erred may not ... be convicted than more one failing jury to instruct the if it deter offense if ... [o]ne offense included in the mined that he alleged committed the other, defined subsection of this degree robbery “concurrently” offense section”); Horswill, State v. alleged offense, second (“A defendant the two merge offenses would and the may not be convicted of charged both of could, consequently, only convict him of the if fenses one is an ‘included’ offense as de degree second murder In offense. its an 701-109(4).”). by § fined HRS We further brief, swering prosecution the advances no held that counterargument regarding point this of er ror. plain it was error for the trial court to fail In Choy, Ah we held that jury where the to instruct duty the of [its] [the find offenses,

two of compo- one which can abe guilty only of attempted defendant] the other, nent of the were committed concur- murder count if [it] determined that [the time, rently jury the need not render defendant] committed that offense concur- rently robbery predicated upon with the commission of aiming be the fire- degree. finding the first The instruction should arm at Freitas. If the latter under- jury lay jury’s guilty respect have been framed so once the the verdict with guilty degree robbery, determined that [the defendant] first then the elements of go any alleged robbery alleged [it] murder need not the and the murder respect robbery further with count. overlapped, thereby obviating the would not have Choy an Ah instruction. Choy, Ah 70 Haw. at 780 P.2d at 1101. subsequently an We have reiterated that event, prosecution’s In the fail Choy required

Ah instruction is not unless upon sought ure to elect the act which it a support the evidence at trial a adduced would conviction, degree robbery first in combina offenses, finding including two the rob- tion with give the circuit court’s failure to a bery, predicated upon which requisite are instruction, specific unanimity resulted “force,” finding that the defendant used oc- lack of an Choy affecting Ah instruction Cor- Denton, concurrently. curred 71 Haw. at rights constituting deiro’s substantial 664; Horswill, 781 P.2d at see also plain Choy, error. See Ah Haw. at (“where at 857 P.2d at 584 two different say P.2d at 1101. cannot plain We issue, by criminal acts at supported are dif- beyond error was harmless a reasonable evidence, doubt, though separat- ferent factual even inasmuch as there is reasonable seconds, by only possibility ed time a few one offense lack an Choy of Ah in by definition cannot be included in the oth- struction contributed Cordeiro’s conviction er”); Correa, degree robbery. Haw.App. Accordingly,- State v. first (1985) (“a give circuit kidnapping Choy court’s failure to an Ah necessarily instruction an incidentally that was not constitutes alternative basis vacating degree during robbery may robbery Cordeiro’s first charged committed remanding conviction and separate as a the matter to the offense addition to the rob- circuit court for a trial bery new as to Count 4 of eharge[]”). In the defendant Denton> the Blaisdell indictment. kidnapping convicted and assault of- appeal fenses that he contended on were However, affirming because we are Cor- robbery “included” within the offenses of degree deiro’s second conviction which he was also convicted. We distin- death, connection with Blaisdell’s see infra> guished Choy Ah on the basis that the record prosecution Choy is barred Ah and its in Denton reflected that “the crimes of as- progeny pursuing degree from a first rob- clearly and kidnapping sault occurred after bery theory conviction on robberies and in fact occurred over requisite murder of Blaisdell constituted the assure, period sufficiently extended in time to “use force.” The now re- that the elements of and of the robberies stricted, 708-840(l)(b)(i), pursuant § to HRS kidnapping overlap.” assaults [did] theory alleged to the that Cordeiro’s act of Denton, 50-51, 71 Haw. at 781 P.2d at 664. aiming supports at the firearm Freitas requisite “use force” the commission of light foregoing, par- so, degree robbery. being That an Ah tially in asserting correct that was entitled Choy longer necessary instruction is no Choy respect to an Ah instruction with appropriate, because Blaisdell’s murder can- robbery degree offenses of first and second degree robbery not establish the first of- degree Prom murder. the evidence adduced fense. trial, jury could found that have Blais- gunshot dell’s wound constituted the “use of c. plainly The circuit court did not err in requisite robbery force” to the first failing jury to instruct that “the count; had it found so and been instructed victim the the owner theft”—ivhether holding Choy, pursuant to our in Ah property taken of against would have convicted Cordeiro second de- allegedly ivhom the defendant gree question murder and never reached used be “aware force—must degree robbery. whether he committed first theft.” hand, supported a On the other the evidence Mitsuda, finding—and prosecution expressly Citing ar- the State v. 86 Hawai'i 37, (1997), gued—that requisite urges the “use of force” could 947 P.2d 349 that dangerous plainly failing in armed with a instrument circuit court erred the against of force jury alleged victim’s “threatens the imminent use instruct the that the person anyone present of who is with necessary the of theft is a ele- “awareness the acquiescence taking compel to the robbery.” intent degree of first ment however, escaping property.” or with con undertake, of the We in not to articulate does foregoing language “requires cluded that the potentially prejudiced what he was manner ‘present’ person that threatened be the by alleged “inadequacy.” In its this answer- with ‘to brief, that the threat be made the intent ing prosecution advances no coun- the taking compel acquiescence to the of or es subject. terargument on the ”12 Mitsuda, caping property.’ the that, law, We noted Mitsuda in at common Hawaii at 947 P.2d at 358. degree robbery required the of first offense However, 708-840(l)(b)(ii), § unlike HRS theft, of inas- that the victim be aware the (b)(i) require that the use subsection does much as the crime entailed the defendant by accompanied of an intent “to force be of taking property the of another “means compel acquiescence” taking of or in by putting or the victim force or violence escaping property with the that the defen- 41-42, at 947 P.2d at 353- fear.” 86 Hawaii Rather, alleged to HRS dant is have stolen. omitted). (citations observed, however, We 708-840(l)(b)(i) requires only § that force be speaking, Hawaii’s first generally de- against anyone present wdth the used “intent robbery departed com- gree statute from the person’s physical to overcome resistance because, mon law definition of the crime physical power or of Inasmuch resistance[.]” [ujnder 708-840, § use of force or HRS 708—840(l)(b)(i) require § does not HRS committing “in intimidation the course of compel that a force in order to defendant use distinguishes theft” is the element acquiesce in person another his or her robbery “An act shall from theft. taking property, that it an of we hold is not committing ‘in of deemed the course circumstance) (i.e., an attendant of element attempt if it occurs in an to commit theft’ person against the offense that the whom the theft, theft, in in the commission of the alleged to defendant is have used force be flight attempt after the or commission.” aware of the theft. (1993).... clear, § It HRS 708-842 Likewise, nothing plain 708-840, there is the therefore, § that under HRS 708—840(l)(b)(i) language § that oth- of HRS or intimidation need not be used force prop- of erwise dictates taking property actual to consti- “owner” Moreover, erty be aware of the theft. robbery. tute legislative history § of HRS 708-840 reflects Mitsuda, at 86 Hawaii at legislature, amending the statute (some omitted). emphasis citations and proscribe against in 1983 to the use of force Thus, 708-840, § pursuant of to HRS “any” present, person intended to render the robbery of first could be com fense applicable in which to situations statute by an mitted act of force occurred .after property present was not at the owner theft,1whereas, law, actual at common it and, thus, time of the theft could not have necessary at that the use of force occur the theft. See Sen. Stand. been aware aqtual majority A the time of the theft. Journal, Rep. Comm. No. 1983 Senate victim’s this court nonetheless held “the at 1390. necessary awareness of the theft is element Accordingly, § court robbery pursuant 708- we hold that the circuit to HRS 840(l)(b)(ii) failing jury to instruct 86 Hawaii at 947 did not err [ ].” person § “victim” of did so HRS 708- the theft—whether the P.2d 358. We because 840(l)(b)(ii) provides whom is used or the owner of specifically relevant force property that a commits if he taken—must be aware the offense theft, she, committing theft. the course majority ''expressed] opinion n. no 947 P.2d at 352 the subsection of statute 12. The Mitsuda analysis pursuant regarding applicability to which the convicted Cordeiro [its] 708-840(1)(bXi)," § n. matter. 86 Hawaii at 40 HRS

4H (Fla.1992) State, 784, Plainly B. The v. 608 789-90 Circuit Court Did Not So.2d Charges joinder Consolidating (approving Err In The of two distinct offenses Attempted Degree The First Murder in a linked causal sense because one induced Charges other); Cases With The In The Blais- Chaney, N.J.Super. v. 160 State (1978) 49, 1283, dell Case. (holding 388 A.2d 1291 threat directed at material witness to murder Cordeiro asserts the circuit properly joined charge). with murder plainly consolidating court erred in Pierce, 630, v. See also State 770 A.2d 634 charges attempted degree first murder (Me.2001) (“If charged the offenses are con case, charges cases with the in the Blaisdell manner, any they nected reasonable are proximity on the basis that no there was Indeed, joinable.”). properly agree we with time, circumstances, place, or com prosecution that it im would have been monality among charges.13 prosecu possible to demonstrate Cordeiro’s motive joinder proper tion counters that be respect attempted degree with to the first charges comprised cause the consolidated introducing without murder eases together of acts “series connected or consti concerning the Blaisdell case. tuting parts single plan.” of a scheme or Moreover, prosecution that “it contends multiple charges properly If are impossible fully would be discuss the at to. 8(a) joined pursuant to HRPP Rules tempted ... killing[s] contract without ex 13(a), nonetheless, they, may pur be severed plaining ... significance Freitas’s tes (1998) appears suant to HRPP 14 it “[i]f Rule timony in trial for [Cordeiro’s] the murder of government preju that a defendant or the ... Blaisdell.” For the reasons discussed by joinder offenses[.]” diced Joinder we hold that circuit court did infra (1) may prejudice by preventing a defendant granting prosecution’s err motions for presenting conflicting him or from her de consolidation. respect fenses or evidence with to each 13(a) provides HRPP Rule relevant charge, permitting prosecution to in may court “[t]he order consolidation of that would troduce evidence be inadmissible charges two or more for trial if the offenses respect charges if sepa to certain tried joined single ... could in a have been rately, bolstering through weak cases charge.” may “Two or more offenses the cumulative effect of the evidence. See joined charge, in one with each offense stated 317, 328-29, Gaspar, Haw.App. State v. 8 801 count, separate in a when the offenses[ ] 30, Johnson, (1990); v. P.2d 36 United States based on the conduct or on a are same series (9th Cir.1987). 1065, F.2d 1070 In decid 820 together constituting of acts connected ing charges whether to sever consolidated parts single plan.” of á scheme or HRPP 14, pursuant to HRPP Rule “the trial court 8(a). Rule weigh possible prejudice must matter, In the public judi defendant interest cases and the Blaisdell murder ease Balanza, 289, economy.” cial 93 Hawai‘i at 1 joined properly as “a series acts were P;3d Timas, (citing at 291 v. 82 Hawai‘i together constituting parts connected of 499, (App.1996)). 923 P.2d single plan” scheme or because all of the “The decision to sever is the sound discre murder, charges were related the Blaisdell court; tion of the trial a defendant is not regardless they of whether involved Cordei- right.” entitled to a severance as a matter of August ro’s conduct on 1994 or his subse (citing Id. at P.3d State v. quent attempts to eradicate evidence the Matias, 96, 98, 550 P.2d by eliminating conviction crime evade (1976)). prosecution’s principal witness Balanza, preju trial. 93 Haw asserts that he was See State permit (approv ai'i diced the consolidation because it incidents); joinder ing Fotopoulos to introduce evidence related ted the Thus, plain opposed error in 13. Cordeiro neither consolidation nor invokes the doctrine ' brought urging again a motion to sever the consolidated cases. us once to vacate his convictions. 412 implicat attempts suppress

that would in of to conceal or have been inadmissible some are evidence, they separately. bearing ing the cases if had been tried and are admissible as (1) (ab Specifically, guilty knowledge[.]”) that evidence upon he contends: a defendant’s Davis, regarding attempts to some- rogated grounds); Cordeiro’s hire v. on other (1922) (“Evi 1009, 385, to murder would have inad- one Freitas been 149 La. 90 So. 387 (2) case; in missible the Blaisdell that the attempt of an to a witness dence intimidate regarding is, course, admissible.”); Ranes, same level of detail Blaisdell’s People of v. required attempted (1975) 498, 673, murder was Mich.App. 234 675 63 N.W.2d degree (“actions first murder cases as for the Blaisdell by as ... at the defendant such (3) case; that of the evidence Cordeiro’s use tempts destroy may con to evidence be drugs and sales of would have been inadmis- jury guilt” by the as of sidered evidence degree attempted sible first murder (internal quotation signals and citation omit eases;14 testimony that of Corne- ted)); State, Mattox v. 243 Miss. 137 lio, Camara, Kekona, regard- Detective (noting that of So.2d 923 evidence ing only Kekona’s attack on Comelio would attempt procure to of ma defendant’s death have been case. admissible Comelio probative terial witness him “was of addition, that consolida- Cordeiro asserts incriminating incon value as an circumstance prosecution tion to allowed the bolster four innocence; appellant’s with and as sistent weak cases means of the cumulative evi- tending guilt to show a consciousness of dence. truth”); honesty that his cause lacked State, (Wyo. Mitchell v. 982 P.2d 723 prosecution that fact maintains 1999) (“A activity defendant’s after commit jury acquitted that the Cordeiro of two of the (the ting attempt a crime an to evade detection attempted degree charges first murder ” cases) guilt.’ Kapika is ‘relevant circumstantial evidence of Cornelio and demonstrates (Citation omitted.)). not, fact, Thus, prejudiced by that Cordeiro’s at he Indeed, tempts procure trial. would have consolidated Freitas’s death suggests charges that consolidation of been admissible the Blaisdell case as evi advantage, guilt worked to Cordeiro’s because dence of Cordeiro’s consciousness of argue jury prose- was able to even if the consolidated eases had been tried “desperate, trying cution was to convict him separately. of evidenee[.]” the flimsiest Second, assuming arguendo that of some prosecution’s would have evidence been First, disagree we with Cordeiro of if inadmissible some the eases tried attempted degree that evidence first separately, that we nonetheless hold Cordei- murders would have inadmissible in the been prejudiced by ro was not the admission if Blaisdell case the consolidated cases had such evidence matter. Con- separately.

been tried Evidence of a defen always permit solidated trials will almost attempts dant’s murder material witness that admission of some evidence would not be to the offense with which he or she is respect every admissible to each and charged prove is admissible to the defen charges separately. if one tried While guilt.15 dant’s consciousness of See State Arlt, may the admission of such evidence result Haw.App. prejudice, potential for have held (holding some we evidence defendant’s may effectively prejudice that such be dis- attempts destroy might link evidence pelled by jury instruction to the effect him to crime was admissible evidence State, applies guilt); “[e]ach count and the evidence consciousness of Neal v. (Ind.1995) (“We separately.” is to long N.E.2d that count be considered have Balanza, against potential held that 93 Hawai‘i at 1 P.3d at 291. threats witnesses cases, concerning 14. The evidence adduced sible in the illegal drugs use and sale of more separately, discussed if tried to show motive. See Hawai'i fully in section III.C. (HRE) 404(b) (evidence Evidence Rule Rules of infra motive). prior bad acts is admissible to show 15. We note that evidence of mur- also Cordeiro's arguably der of Blaisdell would have been admis- (“When Johnson, at 1071 in each case without reference Accord 820 F.2d evidence Thus, concerning assuming arguendo is limit the other crime others. admissible, evidence, primary including ed or not our concern certain the evidence reasonably expected whether the can illegal drugs, Cordeiro’s use and sale ‘compartmentalize the evidence’ so would have been inadmissible some not of one crime does taint the evidence circuit separately,16 if tried the court cases jury’s of consideration another crime.... We potential prejudice by dispelled any properly that trial court must insure the jury means of its instructions. jury on limited admissibili instructed the the Third, jury’s acquittal of ty of ... and will evidence determine wheth attempted degree first two of the jury appeared to er the have followed the (the cases), Kapika sug- cases Cornelio and (Citations omitted.)); instructions.” Do cf. fact, gests jury, that followed State, 1049, (Wyo. rador v. 768 P.2d 1052 not infer a circuit court’s instructions did 1989) (noting may preju that be defendant disposition criminal from the cumulative relating separate if to diced “the evidence Every, charges. v. 678 See State So.2d complicated would so that offenses be jury’s ac- (La.Ct.App.1996) (noting that 958 jury reasonably expected could not quittal charged of of one offense defendant separate them and evaluate the evidence jury negated argument that had defendant’s individually separate properly and on each multiple disposition criminal from inferred ]”). charge[ charges). Consequently, we do not believe matter, In the the circuit court prosecution was bolster the able to jury instructed the in relevant that: by of consoli- Blaisdell or Iona cases means charged Defendant is with more than The was, fact, preju- dation or that Cordeiro separate one offense under counts by diced consolidation. Each count and the evidence indictments. sum, In hold that circuit court did not we applies is to that to that count be consid- determining public that plainly err in you may separately. fact that ered The any judicial economy outweighed interest guilty guilty not or of find the defendant and, accord- potential prejudice to Cordeiro charged not one of the counts does mean granting prosecution’s motions ingly, you with must reach the same verdict attempted first de- for consolidation charged. respect other count charges charges in the gree murder with the additionally The circuit court instructed the Blaisdell case. jury it of could use evidence “other crimes, wrongs, or acts ... to determine that Not Err Court Did C. Circuit of bad character the Defendant is Admitting Evidence “Other ” Of therefore, and, committed the of- must have Crimes, Wrongs, Bad Acts. And jury charged in this case.” “[The] fense the circuit maintains presumed [circuit] to have followed the admitting other court evidence Balanza, erred 93 Hawai'i at court’s instructions.” crimes, involving his wrongs, and bad acts Jhun, (citing at v. 83 1 P.3d State illegal drugs and a threat (1996)); use and sale Hawai'i Mitsumura Webster, Daneen 11 that he directed 94 Hawai'i accord State v. (a (2000). Moreover, and a witness friend of Cordeiro’s is no rea- former P.3d 466 there (a) that it prosecution), on the bases for the was able to assess son to doubt pur- improper evidence weigh constituted character credibility of the witnesses and note, knowledge Blaisdell regard, marij have uana. Freitas’s 16. We in this that it would sig- marijuana attempting purchase was exceedingly difficult to introduce evidence was been was, use attempted based on his establishing nificant because Cordeiro motive in the first illegal drugs, likely introducing source of mari- per- evidence and sale murder cases without taining III.C, Thus, illegal juana. as discussed section and sale of to Cordeiro's use infra illegal drugs inex- supra and sale of was drugs. a mo- Cordeiro’s use See note 15. Cordeiro had tricably charges in both the Blais- linked to the kill because Freitas witnessed tive to Freitas degree murder and the he knew that dell case Blaisdell’s murder and because purchase pound attempting cases. Blaisdell 404(b) and, to HRE alternatively, range suant Rule relevancy outside the ban is ” (b) probative substantially Clark, that its value was almost infinite.’ 83 Hawai‘i outweighed by danger prejudice of unfair (quoting P.2d 194 E.W. pursuant Furthermore, to HRE Rule 403. Cleary, § McCormack on Evidence even if some of ed.1972)). the evidence his use and (Cleary admissible, illegal drugs sale he con- However, provides HRE Rule 403 tends that the evidence of his involvement drugs prosecutorial with amounted “cumu- relevant, [although may be ex- Finally, lative overkill.” Cordeiro contends probative if substantially cluded its value is limiting the circuit court’s instruction outweighed by danger preju- of unfair' respect the evidence “other bad dice, issues, confusion of misleading inadequate untimely. acts” was jury, considerations of undue prosecution argues The that the evidence time, delay, waste of presenta- needless illegal drugs of Cordeiro’s use and of sale tion of cumulative evidence. motive, intent, oppor- was admissible to show determining In probative whether the value tunity, identity, plan, preparation, and knowl- of evidence of bad substantially other acts is edge. Specifically, prosecution the contends outweighed by danger preju- the of unfair that fact that heavy the Cordeiro was “a dice, drug drugs user deals it makes more weigh variety the trial court must a of likely than not that he would be able to factors.... strength These include “the of marijuana Thus, obtain for Blaisdell.” the the evidence as to the commission of the asserts, prosecution the evidence of Cordei- acts], other [bad the similarities between drugs explains why ro’s involvement with acts], the [bad that time has Blaisdell “had a l'ational for contacting basis acts], elapsed [the between bad the need purchase pound [Cordeiro] for the of a of evidence, efficacy for the of alternative marijuana[,]” giving Cordeiro the motive and proof, and the to which the evi- opportunity to prose- murder Blaisdell. The probably dence will rouse the to over- cution maintains probative that the of value mastering hostility.” substantially the evidence was not out- weighed by danger prejudice. of unfair Robinson, 468, 471, State v. 79 Hawai'i agree. We (1995) P.2d (quoting State v. Pine ro, (1989) 404(b) provides HRE Rule (citing Cleary, E.W. McCormack on Evi crimes, wrongs, [e]videnee of other or acts (3d ed.1984))). § dence at 565 prove

is not admissible to the character of II.C, supra As noted in section this court a order show action in con- reviews the circuit court’s admission of evi- formity however, may, therewith. It be dence, 404(b), pursuant to HRE Rule in ac- admissible proba- where such is evidence standard; “right/wrong” cordance with the of consequence tive another fact that is of contrast, by we review the circuit court's action, to the determination of the such as weighing probative of value dan- motive, intent, proof opportunity, of prepa- ger prejudice, of unfaii' pursuant to HRE ration, plan, knowledge, identity, modus Rule of abuse discretion. operandi, or of absence mistake or acci- eases, In proponent dent. criminal of matter, pretrial at a confer- evidence be offered under this subsec- 17, 1997, ence on prosecution December provide tion shall reasonable notice in ad- notified the circuit court and defense counsel trial, of or during vance trial if the court 404(b) it intended to HRE offer Rule pretrial good excuses on notice cause 27, 1998, April evidence. On shown, date, location, general a support pro- filed memorandum in of its nature of such it evidence intends to 404(b) posed evidence, and, use of HRE Rule at introduce trial. on June filed motion permissible list of purposes exclude, alia, “The seeking Rule limine inter 404(b) is not intended to be exhaustive ‘for “other bad acts” evidence of which now prejudicial impact prejudice—the complains. conducting hearing After motion, during testimony circuit this on the which the court Defendant. specific prose- reviewed evidence trial, sought to the circuit

cution introduce value use probative Cordeiro’s ruled was admissible court the evidence illegal prior drugs and sale of part. explained The circuit rul- court its not substan- Blaisdell’s ivas ing as follows: danger un- tially outiveighed [C]ontrary position, to the Defense this prejudice. fair finding is that there is relevance to Court objects admis specifically being sought the evidence that to be following regarding sion submitted; being the evidence prior Blaisdell’s use sale drugs - is—appeal’s, sought from the offers regard testimony murder: Mitsumura’s proof anywajr, significant regards ing crystal and sales of meth Cordeiro’s use drugs, the involvement of the Defendant 1994,17 amphetamine and cocaine in Ed therefore, opportunity for the vic- Joy’s testimony couple of weeks ward arrange- tim and the to make Defendant murder, Blaisdell ex before Blaisdell’s purchase drugs for the at the ments crys pressed about use of concern particular this time of incident. testimony methamphetamine,18 tal Iona’s evidence, this Without the State would were three he and Cordeiro involved able, otherwise, pres- not be to tie the crystal methamphetamine or foui- of sales of the the of ence Defendant—or motive (4) 1994, together during Cur the summer of present at the Defendant to be the scene testimony mar that had used tis Diment’s he Although they an this incident. have [of] ijuana, methamphetamine, and nit crystal cannot eyewitness, eyewitness himself 1994, August and rous with Cordeiro oxide motive, opportunity, demonstrate knowl- testimony Detective William Fernandez’s preparation edge, plan or intent or on that, August on questioned when he Cordeiro part get of to the Defendant involved 1994, 15, had not stated that he Cordeiro Any kind of particular this crime. alter- about a “he seen Blaisdell for month because proof simply native not available to dem- drugs away from trying get was to himself argument part this or fact on onstrate up.” and clean himself of the State. Now, agree that the question prejudice. unfair We with the circuit court of pur deny preju- that there was admissible The Court doesn’t aforementioned evidence 404(b). testify Specifically, if as to the to dice these witnesses suant HRE Rule drugs drugs illegal use of defendant’s of sale fact that used and sold and/or However, find that drugs. per I don’t there is probable made it that he was the more overmastering going any to be land of on arranged to meet son whom Blaisdell hostility jury purchase pound on the about this of to a “skid row” in order limited, testimony, and, which will be as the marijuana consequently, that Cordeiro ordered, already meet, murder, has and which will Court and rob had the motive to prove introduced not be allowed to be to pre planned had Blaisdell and that he conformity Austin, that the Defendant acted v. pared to State do so. Cf. any kind that he of character has 307, 1098, (holding P.2d 1102 769 drugs.

propensity get involved has similarity between a ear defendant’s dealing of dealing drug and the Weighing probative drug .... lier value ver- charged was was ex prejudice, fense with which he unfair the Court finds sus the tremely plan and a prove probative outweighs— far relevant both that value Kealoha, scheme); Ha 95 outweighs common v. evidence and the need for this com- Blaisdell's 18. The circuit court admitted In addition the fact Cordeiro used pursu- drugs, perception "[Cordeiro] Mitsumura testified of recent ment as a statement mellow, batu, guess, 804(b)(5) I he used to smoke (1998). when ant to HRE Rule irritated, guess, when he kind of I would do cocaine.” (App.2000) wai‘i P.3d establish that Blaisdell was murdered “[ejvidence marijuana, (holding purchasing pound course of of [defendant methamphetamine there was no other sold to finance her cocaine evidence available to why person show probative of whom [defendant use is whether had a methamphetamine Blaisdell met “skid row.” Neither motive to manufacture Freitas so”). nor intent to do other witness was aware that Blais- her arranged purchase pound dell had of The fact that of most the evidence marijuana Consequently, from Cordeiro. challenges that Cordeiro involved his use and without evidence Cordeiro’s use and sale crystal methamphetamine sale of and co illegal drugs, would have caine, marijuana, rather than does not been unable establish Cordeiro’s motive change view of Although our its relevance. Thus, meeting for Blaisdell on “skid row.”19 drugs may illegal respects, differ various probative very value of the evidence was may specialize and some dealers in certain high. drugs, illegal it would have been irration Second, potential preju- evidence’s al for Blaisdell contact a known to great suggests. dice was not as Cordeiro type drug sell one course drug charges There no were Cordeiro’s Kealoha, search for another. See 95 Hawai'i Consequently, case. possibility there was no (“Defendant’s 22 P.3d at 1027 cocaine would infer because of knowledge use demonstrated her propensity drugs, to use he was illegal drugs.”); nature of United v. States guilty drug-related Moreover, of a offense. (11th Lampley, F.3d 1299-1300 Cir only person Cordeiro was not the involved in .1995) (holding that defendant’s history matter who drug had a prior marijuana sales was admissible to drug dealing. use or The evidence adduced motive, intent, knowledge show and willful Freitas, Blaisdell, at trial established that charged ness of defendant with selling co principal two of the three witnesses in caine); State, Colon 113 Nev. cases, (holding defendant’s others, among had illegal drugs. used or sold marijuana knowledge of was relevant to show Therefore, danger jury singling the knowledge drugs, including her of metham out overmastering for hostility Cordeiro phetamine). Quite simply, fact the drugs based on use of was remote.20 Blaisdell, others, among was aware that Cor- Finally, potential prejudice for the unfair was crystal deiro known was to use sell effectively dispelled by the circuit court's lim- methamphetamine and cocaine it makes iting jury, to instruction the as discussed probable more him in Blaisdell contacted infra, in section III.C.3. pound of a the course his search for of mari juana. probative 2. The value Cordeiro’s “oth- occurring er bad acts” Blaisdell’s Furthermore, not after we do believe that substantially murder was not out- circuit court abused its discretion in con by weighed danger preju- unfair cluding probative that the value the evi dice. substantially outweighed by dence was not First, danger prejudice. of unfair al objects Cordeiro also to the admis though ample was pertaining there evidence available to sion of certain evidence to “other drug methamphetamine 19. Blaisdell's concerns about Cordeiro’s more than once that he particularly probative regard, use were drugged this up point had been so at one in his life they tended because to establish that stabilized”; Blaisdell yet jury that his "mind wasn’t heavy drug was aware that Cordeiro awas user testimony, by believed his as demonstrated and, thus, might good marijuana. be a source guilty charged fact that it found Cordeiro Furthermore, although Kapika the Iona case. only principal 20. We note that Cornelio was repay claimed that Cordeiro offered him for in the witness drugs, potentially the murder of Freitas with using selling illegal did cases who not admit to least, highly say prejudicial evidence to yet jury drugs; ble, did find him to not be credi- jury acquitted charges Cordeiro of the by jury as demonstrated the fact that the case, not, fact, Kapika suggesting that he was Iona, acquitted Cordeiro in the case. Cornelio prejudiced by testimony. the "bad acts" contrast, crystal admitted that he had sold mur- bad acts” that occurred after from threat to Blaisdell’s Cordeiro’s “shoot” Mitsumura First, argues circuit Cordeiro that the possessed carry der. means out his testimony threat—ie., admitting erred in court possessed Cordemo a fire that, in Emil Muraoka Thus, October Cordei- though hardly itself, arm. conclusive in to him ro identified and claimed that Shirota testimony tended to corroborate Freitas’s of, he and Shirota either were the midst testimony that possessed gun Cordeiro a in, previously had a sale of been involved the time Blaisdell’s death. United Cf. crystal together. methamphetamine Cordei- (7th Covelli, States v. 738 F.2d Cir testimony ro contends that Muraoka’s was .1984) (“evidence prior possession of a of a “outside the time relevant frame” because weapon prove can be used to opportunity and Muraoka did know when the transaction identification even cannot where it be direct place may took and that the occurrence have ly weapon identified as the used in the Second, after death. been Blaisdell’s Cordei- crime”). This highly probative because ro contends that the circuit court erred weapon the murder was never recovered. admitting testimony: Mitsumura’s Admittedly, evidence of Cordeiro’s threat murder, (a) day after had Blaisdell’s she potentially Mitsumura prejudi- crystal methamphetamine smoked with Cor- that, jury may cial because have believed (b) deiro, stated, had Cordeiro too “There’s because Cordeiro threatened shoot Mitsu- Kula[,]” (c) many cops in had Cordeiro mura, he must have shot Blaisdell. Howev- destroy pipe they instructed her er, close, although question may be we using prevent had been in order to access to say cannot that the circuit court abused its fingerprints, latent that she had in determining probative discretion argued with a month Blais- after testimony value of Mitsumura’s was not sub- murder, during which dell’s Cordeiro had stantially outweighed by potential its for un- threatened to “shoot” Mitsumura if she did prejudice allowing fair and therefore the tes- him. pipe not return contends timony received evidence. testimony that Mitsumura’s was both irrele- prejudicial, vant and because it led the limiting 3. The circuit court’s instruc- violent, drug-crazed to believe that he was adequately dispelled potential tion person. prejudice resulting the evi- from sale of dence Cordeiro’s “other bad acts.” illegal drugs around the time of Blaisdell’s Finally, Cordeiro contends murder, after, whether before or was rele probative if the of even the value individual vant to show Cordeiro was involved illegal references involvement and, thus, at drugs the sale of time drugs not substantially outweighed by was III.C.l, supra in as discussed section was danger of prejudice, the unfair the “constant motive, identity, prep relevant to establish and numerous references” amounted “cu aration, Moreover, plan. and Cordeiro’s addition, mulative overkill.” In he maintains collaboration with Shirota was relevant plain that it circuit was error for the court establishing nature of them the relation to wait the trial until conclusion of the before ship, jury from which the could infer limiting giving regarding a instruction the probable it was bor that Cordeiro had “other bad evidence and to fail to acts” rowed Shirota’s truck order to meet identify “drug” by the covered evidence the 11, August 1994. Blaisdell on “skid row” on disagree. limiting instruction.21 We testimony regarding Mitsumura’s Austin, cites police about and his at Cordeiro’s concerns the 309, 1103, day support P.2d at fingerprints on after min 769 of his the Blaisdell’s highly probative was of contention the of his use der his consciousness evidence and Arlt, guilt. Haw.App. illegal drugs 9 of See at 833 sale of to the rose level of Moreover, jury P.2d at 905. could infer “cumulative overkill.” was Austin convicted agreed limiting expressly object 21. Cordeiro that the not did to its content. Hence his trial, given plain instruction should be at the end of the of the doctrine error. invocation 418 Austin, Haw. at You heard evidence the Defen- of cocaine. have

of the sale may evidence, at have dant another time committed The howev- P.2d at 1098. crimes, wrongs, acts. other You must er, “unnecessary over- that we described Austin—ie., not use that the this evidence determine illegal drug opera- an kill” in person of bad associates, Defendant is a character but not tion with which Austin’s and, therefore, must have himself, committed not rele- Austin were involved—was in this ease. case; charged offenses Such evi- consequence any vant to fact of you by only on may dence considered matter, present evidence unlike motive, oppor- the issue the Defendant’s not to show the defendant’s identi- relevant intent, plan, tunity, preparation, knowl- motive, plan. at ty, preparation, or Id. mind no edge, identity, or state of and for Rather, merely it was 769 P.2d at 1103. purpose. other police outline how the “somewhat relevant about incrim- limiting [Austin’s] information accu- received court’s instruction circuit Indeed, Id. inating rately permissible the evi- statement^]”22 enumerated uses 404(b) technically correctly bad dence was not even “other HRE ad- Rule evidence evidence, jury Austin not di- acts” because monished not to utOize “other bad operation. rectly illegal any improper purpose. We to the acts” linked evidence therefore, presumed to have danger “[The] of unfair followed held Balanza, guilt by prejudice—ie., [circuit] association—sub- court's instructions.” Jhun, (citing Hawaii 1 P.3d at 291 stantially outweighed the evi- at relevance 1365). contrast, at Hawaii By also at might dence have. Id. we support authority position cites no of his held circuit court did not abuse its that the identify judge specifically, that the trial must allowing proof of own Austin’s discretion by “other acts” evidence bad covered prior illegal drugs as of a sales of evidence instruction,23 limiting nor are we aware P.2d at common Id. scheme. Indeed, any. a trial we do believe that judge necessarily specify HRE should improperly admitted evidence Unlike the 404(b) limiting Rule covered evidence acts in associates’ bad the defendant’s given at conclusion of the instruction Austin, of Cordeiro’s use the evidence specificity prejudicial would risk trial. Such directly illegal drugs was sale of relevant unnecessary highlighting of omission or Thus, probative. analogous it was jurors evidence in the minds of the immedi- bad properly admitted “other acts” evidence deliberations, ately prior especially in to their Moreover, as we have discussed Austin. case, matter, such as the which above, drug charges no in Cordei- there were significant of “other bad quantity acts” evi- trial, thereby significantly ro’s consolidated the course of dence introduced over sever- danger prejudice. diminishing the unfair al weeks. trial and the length Given Furthermore, the circuit court’s illegal drugs of use and sale evidence limiting single decision issue a instruction individuals, involved we of numerous trial, at the than conclusion rather relating to do not believe prosecution HRE each time the introduced constituted “cumulative overkill.” 404(b) not, view, evidence, Rule did our a trial, jeopardize right fair trial. At circuit conclusion of the Cordeiro’s case-by- on jury: judge The trial must consider a court instructed the Nakamura, Vasquez-V¿las- concurring majority types But various of evidence.” 22. in the Justice that, found, "[if], co, opinion, judge joinder charges as the trial wrote addressed tire which connecting trial, evidence single there no shred of multiple in a defendants sim- drug illegal operation], testi- [the defendant and mony assessing ply joinder whether "[i]n only subsequent 25. The reference Hill to that we However, if he were available to me at this 30, appears July can find script, in the 1998 trial tran- point calling I would be him as a witness and following colloquy which reflects the testifying respect he would rebuttal with Judge Mossman’s chambers: respect ... to the witness who testified with point [Defense counsel:] ... [A]t this [Hill] gunshot residue. prior—the is available to me based on the not prior Court’s order that he be stricken. He 420 prejudice to manifest not result striking Hill from did not err

cuit court the defendant. the witness list. 151, 145, 795 Young, Haw.App. 8 v.

State Faulkner, 285, 1 (quoting v. P.2d 290 State F. Restrictions On The Circuit Court’s 940, 654-55, 651, 943- Haw.App. 624 P.2d Cross-Examina- Counsel’s Defense 669, (1981)), denied, 71 Haw. 833 44 cert. Prejudice Did Not Cordeiro. tion (1990).... P.2d 901 argues that certain re establishing abuse of The burden imposed on that the circuit court striction's strong appellant and a is on discretion scope counsel’s cross-examina of defense it. To showing required to establish confrontation, right tion violated his abuse, appear that it must constitute I, 14 of the guaranteed by article section clearly the bounds trial court exceeded and the sixth amend Hawaii Constitution princi- disregarded rules or or reason Constitution, re ment to the United States substantial ples practice law or his convictions.26 We quiring us to vacate party litigant. aof detriment disagree. 654, Faulkner, P.2d at Haw.App. 1 624 I, 14 of the Hawaii Con- Article section and the sixth amendment

stitution Okumura, 894 78 Hawai'i v. State guarantee United States Constitution (1995). P.2d 96 right to be con- criminal defendants Moreover, stan “the harmless error against them. fronted with witnesses infringements on the applies ... dard right “[I]mplicit in to con- [a] defendant’s right witnesses.” Korean to cross-examine him, against right front witnesses Temple Hawai‘i v. Buddhist Dae Won Sa impeach con- cross-examine and to 217, 245, Sullivan, Hawai'i 953 P.2d Napeahi, 57 witness.” v. fronted State (1998). Thus, trial court if the does 365, 372-373, 556 P.2d Haw. cross-examination, limiting fact err (1976). However, right to confront “[t]he whether, assuming inquiry is correct [t]he and to cross-examine is not absolute cross- damaging potential of the that the eases, may, appropriate bow to accom- realized, fully a review- were examination legitimate modate other interests say might ing court nonetheless El’Ayache, process.” trial beyond a reasonable was harmless error (1980). Haw. such an error is harmless doubt. Whether Furthermore, depends upon a host particular in a case ad- factors, reviewing law is well-settled readily [t]he accessible to all evidence, missibility generally, and impor- These factors include the courts. at trial scope testimony pros- of cross-examination tance of the witness’ case, testimony matters within the discre- are exercised whether the ecution’s cumulative, presence court.... The trial of evi- tion of the trial absence contradicting corroborating limit of its discretion to court’s exercise dence on material testimony will not of the witness scope of cross-examination oth- it of cross-examination points, when the extent be ruled as reversible error course, and, ques- permitted, the over- repetitious limits irrelevant and erwise strength prosecution’s case. all does] limitation [and tions counsel I, Constitu- already 14 of the Hawaii ruled 26. Article section The Court has [Prosecution:] that, part provides all crimi- "[i]n Mr. Hill.... in relevant tion totally inappropriate enjoy to ask the prosecutions, So it seems the accused shall nal ruling. go on its earlier Court to back right with the witnesses to be confronted asking I think he’s Court:] don’t [Circuit The sixth amendment accused[.]” go me to back. provides in rele- States Constitution the United clarifying for the counsel:] Just [Defense prosecutions, the all criminal "[i]n vant record. enjoy right ... to be confronted accused shall certainly foregoing do consti- comments against him[.]” with the witnesses of the circuit a motion for reconsideration tute prior ruling. court's Arsdall, 673, 684, police Delaware v. Van 475 U.S. made to the on another statement (1986) (cita- Thus, 89 L.Ed.2d 674 given totality S.Ct. occasion. the of defense omitted). Commentary cross-examination, tions See also to counsel’s we believe that (“error HRE Rule 103 in admission of rights Cordeiro’s substantial were not affect- testimony is not a Moreover, basis reversal absent testimony ed. Valentine’s was not resulting prejudice’ rights ‘substantial to the prosecution’s crucial to the case. Freitas’s party”). of a that, 11,1994, testimony August picked on he up p.m. Blaisdell after 5:15 sometime in- Cordeiro cites three instances—each p.m., at skid row 5:45 arrived sometime after volving prosecutorial objections sustained to Delima, Jr., by was Arthur who corroborated questions posed by defense counsel—of al- testified that he and Blais- observed Freitas leged right violations of his to confrontation. driving together Highway on Kula at dell the address We each instance turn. (which, approximately p.m. according 5:30 to 1. Amanda Valentine Freitas, shortly after Valentine observed Blaisdell). event, him jury’s with the First, Cordeiro maintains that the that Blais- determination Cordeiro murdered sustaining prosecu circuit court erred in the could not on dell have turned Valentine’s objection tion’s to defense counsel’s cross- timing testimony, precise the because regarding examination of Amanda Valentine 11,1994 August particular- events on was not police a statement to on she made the ly significant. This was.not a in which ease before, August Only 1994. moments de alibi; the defendant had a hole in his the fense counsel had asked 'Valentine whether simply did not find Cordeiro’s numerous alibi stating police, she remembered to the on n witnesses, who testified he never left his 12, 1994, August that she had observed Frei- 11, 1994, evening August on to house the together tas and Blaisdell in Freitas’s truck Thus, “assuming that the be credible. 11, 1994, damr p.m. August at around 5:15 on aging potential of the were cross-examination not;27 Valentine had did answered she realized,” fully we hold that there is no rea- objected prosecution question the to on possibility sonable it would have already ground that it had been asked answered, changed the outcome of Cordeiro’s trial. circuit court sustained objection. forgery second conviction Comelio’s transcript Our review the reveals although defense counsel had asked Valen- Second, Cordeiro asserts “telling tine whether she remembered [the sustaining prosecu eireuit court erred occasions,” police] on at least two different objection question posed to a tion’s Corne- 12, 1994, including August that she had ob- during lio counsel reeross-exami- defense together served Blaisdell and Freitas at nation. Cordeiro’s defense counsel asked p.m., around 5:15 defense counsel had if had convicted of two Cornelio he been specifically asked Valentine whether she re- one, forgery, had counts of rather than police August stating membered previously in the course of direct testified together 1994 that had two at she seen the examination, objected p.m. Accordingly, agree around 5:15 we redirect, “beyond scope” question as Cordeiro that circuit court erred in sus- objection. and the circuit court sustained the taining prosecution’s objection.

Nevertheless, circuit should be limit we believe “Cross-examination beyond subject court’s error was harmless a reason- direct exami ed matter above, affecting credibility of able doubt. As noted defense counsel nation and matters 611(b) (1993); permitted impeach HRE Valentine on the the witness.” Rule see August Napulou, Hawai'i basis of both her 1994 statement also (App.1997). Similarly, re police and the allusion to a similar P.2d attempting impeach prior Valentine with a 27. Valentine had testified on direct examination together that she had seen Freitas and Blaisdell inconsistent statement. approximately p.m. 5:30 Defense counsel was 422 impeach

cross-examination should be limited to the less. Defense counsel was able to examination, see, scope e.g., credibility plethora of redirect State Cornelio’s with a of con- (Kan.2002) Jones, victions, (holding 47 including forgery P.3d 783 one conviction. And, fact, clearly trial court did not abuse its discretion in defense counsel was objection sustaining prosecution’s undermining to recross- successful Comelio’s credibil- redirect); beyond scope ity, acquitted as examination the because Cordeiro was of the State, Ga.App. Brumelow v. charge murder (finding no S.E.2d abuse Cornelio ease. prohibiting ques from discretion counsel only argument Cordeiro’s is while the tioning witness on recross-examination re jury may not have believed Cornelio’s testi- garding beyond scope matter the of redirect mony regarding attempt Cordeiro’s to hire examination), affecting or “matters the credi Freitas, kill may him to it have believed witness,” see, bility e.g., of the Simmons v. testimony regarding Cornelio’s what Cordei-

State, (Fla.Dist.Ct.App. 552 So.2d ro had told him about the Blaisdell case. 1989) (“A credibility ‘always witness’s not, however, specific Cordeiro does cite the proper subject of cross-examination.’.... testimony pertaining to the Blaisdell case principle This holds true the context of believed, jury might that the have how the (Citation omitted.)). recross-examination.” testimony might have contributed to his con- matter, In the on Cornelio testified viction, why impeachment direct examination that had been convict- forgery Cornelio with a “second” conviction forgery charge, ed of a theft and a but the might changed jury’s have the assessment of subject during was not covered redirect ex- credibility. only Cornelio’s Cornelio’s testi- Consequently, prose- amination. because the mony regarding the Blaisdell case that we subject cution did not address of an can find was Cordeiro had told him that alleged forgery “second” conviction on redi- principal was Freitas witness for the rect, when Cordeiro’s defense counsel raised prosecution in his trial. if Even subject recross-examination, was, it foregoing testimony, believed the failwe redirect, technically, beyond scope prejudiced how it discern could have Cor- sustaining the circuit court did not err in deiro. objection prosecution’s on this basis. While credibility it is true that the of a witness is map 3. Iona’s relevant, always Cordeiro’s defense counsel Third, Cordeiro contends that argue failed to as much when the circuit sustaining circuit court prosecu erred question beyond court ruled that the objection tion’s to the relevance of the loca scope ruling admitting of redirect. “[A] repository kept tion of the in which Iona excluding assigned evidence cannot be map “second” from he received clearly apprised error unless the court is indicating the site of Freitas’s home. Cordei- the nature the claimed error and of the suggests “[f]inding ro out or who where sought.” Commentary action corrective gave map to [Iona] was an effective and 103(a).28 Thus, say HRE we cannot Rule proper Espe method of cross-examination. sustaining the circuit court erred cially if the who Iona claimed was objection. prosecution’s holding map subpoenaed could be however, Assuming arguendo, brought to court and then Iona’s denied err, the circuit court did was harm- argues the error claims.”29 The 103(a) provides part: apparent 28. HRE Rule in relevant from the context within which questions were asked. (a) Ruling. may Effect of Erroneous Error predicated ruling upon not be which admits During following the bench conference right or excludes evidence unless a substantial objection, prosecution’s argued defense counsel affected, party and: in relevant as follows: proof. ruling Offér of In case the is one If [Defense counsel:].... this witness were evidence, excluding possession during evi- substance of the of contraband that two- by year period, dence was made known to the court offer or it would have been confiscated and the exclusions did kept map was defense counsel place in which Iona specific relevant, and, any prejudice” to Cordei- if it was result “manifest even irrelevant beyond a reasonable error was harmless ro.

doubt. Testimo- G. The Admission prosecution that agree with the We OfComelio’s Religious ny Regarding His kept location in which Iona the “second” Beliefs HRE Did Not Violate Rule by was not rele map given to him Cordeiro custody map might vant. The chain of argues circuit purposes for have been relevant highlyi permitting prosecution, court erred in dire, authenticity during challenging voir its notwithstanding objection, to elicit testi his receipt challenge did not but Cordeiro religious beliefs. mony regarding Cornelio’s map on its authentic into evidence based disagree. We ity. Consequently, purposes for of determin map place in which ing provides HRE relevant whether Rule relevant, opinions must determine wheth of a kept was we of beliefs or “[e]vidence tendency to make the location had “a not religion er is admissi- witness on matters consequence any fact that is of showing by existence of reason purpose of ble for the action more or of the credibility to the determination is im- the witness’ of their nature probable than it would be without the prohibi- less paired There is no or enhanced.” does HRE Rule 401. Cordeiro tion, however, evidence.” admission of evi- against the map location of the propose not how the religious for other beliefs dence of witness’ fact more or less made the existence purposes. simply suggests that his probable. He de examining re- In the course of Cornelio might hypothetically have been fense counsel Freitas, garding his decision not to upon impeach Iona based his answer able to transpired: following colloquy any testimony question. But almost you going [mur- Were [Prosecution:] impeach a wit potentially could be used fashion; Freitas]? der speculative purely ness question answer to an otherwise irrelevant No. [Cornelio:] question into bootstrap rele does not Why not? [Prosecution:] not Accordingly, the circuit court did

vance. Changed my I not into life. [Cornelio:] objection sustaining prosecution’s err thing. inquir counsel’s to the relevance of defense repository in which Iona secreted ing into the map.

the “second” your has life How [Prosecution:] sum, circuit court did In we hold that the changed? What is different? scope limiting not its discretion abuse things. things, lot of Lots [Cornelio:] counsel’s cross-exami- defense most what? What’s nation, merely Like [Prosecution:] the circuit court insofar as you think? questions significant do repetitious excluded irrelevant holding it not counsel:] If he was by—it [Defense MCCC have been confiscated could for him— authorities. you doing is All are then apparently court:] [Circuit confiscated dur- Since it was credibility. relevant. impeaching It is not two-year period, ray argument his ing would this Exactly. possession counsel:] [Defense of this witness it was not in the be relevant court:] It is not two-year period, [Circuit created and it was for that Credibility always Therefore, rel- is counsel:] January [Defense March of '95. after evant, your Honor. hiding place relevant as to the believ- would be anything bring court:] You can ability hiding place. [Circuit nothing you with this case has to do want that Honor, telling I don’t think the truth? example, and see if he if an ACO was Your highly rele- that is relevant. holding it for him that would credibility. goes It to his opportunity [Defense counsel:] to call that I would have vant. my the—I made holding relevant because if you him. It is also this for ACO in and what are record. court: What’s the relevance? [Circuit ] trial, I [Cornelio:] walk with Jesus Christ as the trial court must first determine Christian. “it reasonably whether satisfied that

testimony at trial of a material [was, fact,] Teves, witness false.” Cornelio, Mr. [Prosecution:] how has Haw.App. 679 P.2d your changed your Christianity, life due (citing Meafou, State v. your faith? (1984)). matter, circuit court My [Cornelio:] is that I belief walk the hearing conducted a on Cordeiro’s motion for narrow, straight and my cannot be on con- a August new trial on 1998. At the things science all happening. these been hearing, Bergquist, Arthur F. only wit- important What to me most is that I know that, in proceeding, ness called testified how all victims hap- feel because of what 14, 1998, July working while at Maui pened to me. I people know how all the in courthouse which Cordeiro’s trial was they we hurt. I know how feel now be- held, two unidentified women stated to him I cause was hurt real bad. they that had overheard a conversation be- men, tween two Bergquist whom presumed you your Had [Prosecution:] formulated DPAs, were the in which one told the other religious prior contacting po- beliefs to lying that Freitas was on the witness stand. in lice October of 1995? Bergquist did not identity know the women, was any unable describe them [Cornelio:] Yes. detail, acknowledged that he would not why you Was that [Prosecution:] con- recognize if again. them he were to see them Kaya? tacted Detective Moreover, he was unable to state that the [Cornelio:] Yes. were, fact, women referring to the DPAs. apparent It is prosecution therefore light In of the fact that Cordeiro was inquire did not religious into Cornelio’s be- any unable to adduce substantial evidence purpose liefs for the enhancing his credi- had, fact, perjured Freitas himself bility.30 contrary, prosecution To the during testimony, his we hold that circuit obviously seeking why to establish it was court did not in denying err Cordeiro’s mo- not, fact, Cornelio did murder Freitas. tion a for new trial. Accordingly, we hold the circuit court did in allowing not err testify Cornelio to I. The Circuit CouH Did Not Err In regarding religious his beliefs. Denying Cordeiro’s Motions For A Mistrial On The Basis Prosecutori-

H. Of The Circuit Court Did Not Err al Misconduct. Denying Cordeiro’s Motion For A New Trial. prosecutorial claims that Cordeiro misconduct, including during comments clos Cordeiro insists circuit ing argument regarding credibility court in denying erred his motion for a new use, drug witnesses and Cordeiro’s frivolous had, trial on the basis that Freitas with the objections, and arguments by simultaneous (DPAs) deputy prosecuting attorneys’ knowl DPAs, cumulatively the two denied him his edge, perjured during testimony. himself his right to a fair trial. Accordingly, argues disagree. We the circuit court erred in denying his HRPP provides Rule in relevant two for motions a mistrial. disagree. We part that “[t]he court on motion of a defen closing argument The DPA’s may grant dant was not trial him required new if improper. justice.” in the interest of aWhen defendant grounds seeks a new trial on the that a generally It is recognized un gave testimony witness false der Hawai'i prosecutors case law that are III.F.2, supra any 30. As noted in section Cordeiro event. successfully impeached credibility Comelio's expressing per prosecutorial

bound refrain from their was not misconduct for the guilt argue sonal views as to a defendant’s or the DPA during closing argument “ Marsh, credibility of [State ‘[w]hen witnesses. defendant comes here and you 728 P.2d 1302 tells that he was not on cocaine that (1986) night, just—it’s story ]. a eoekamamie ” asking you yourselves it’s to take as However, fools[.]’ prosecutor, during closing (Brackets original.) argument, permitted to draw reasonable inferences from the lati wide matter, points In the discussing tude allowed the evidence. during prosecution’s number of instances 128,] Apilando, [State v.] 79 Hawai'i 141- closing argument suggest- in which DPA [13[135],] (citing 148 [ ] witnesses, Cordeiro, including ed that certain Zamora, Kan.684], State v. [247 lying, being were while others were truthful. ([Kan.] 1990)) (other P.2d 568 citations failed, however, has to cite omitted). It is within also the bounds of Marsh, example, expressing of the DPA legitimate argument prosecutors personal regarding guilt views state, discuss, and comment on the evi credibility. or a witness’ Nor can find we dence as well as to draw all reasonable Rather, Clark, any. as in argued, the DPA from inferences the evidence. conflicting presented based (e.g., at trial Cordeiro’s at whereabouts Comments to the that a effect defendant murder), time Blaisdell’s that the testimo- lying or a witness were have defense ny of his Cordeiro and alibi witnesses was repeatedly upheld. prosecuting been A untruthful and that the reliable evidence cor- attorney may comment on the evidence testimony roborated the of Freitas and oth- and, credibility and the witnesses] foregoing argument permissible ers. The is process, may point belittle and holding Consequently, under our in Clark. improba,bility and tmtruthfulness credibility the DPA’s references to the specific testimony. improper. certain witnesses was not (Mo. Weaver, v. 912 [State S.W.2d 513 1995) (citation omitted). ] argues Cordeiro also that DPA Clark, 289, 304-05, 83 Hawai'i 926 improperly emphasized drug Cordeiro’s use (1996) (some P.2d 209-10 citations omit- closing argument. Specifically, his he ted) (some origi- brackets added and some following cites the comments of the DPA: nal) added). (emphases Let’s look at the defendant. look Let’s Thus, Marsh, 660-61, 68 Haw. at 728 credibility.... at prosecutori- P.2d at that it was we held testimony. How? Think about his His repeatedly al misconduct for the DPA to approach, Friday, flat out denial. personal express opinion her that the de- They lying. “No. must be I didn’t do it. I example, For fense witnesses had lied. drugs. drugs.” don’t do I don’t deal closing argument, DPA exhorted the alia, gentlemen, I “[l]adies inter that and approach, Monday, big feel change Second convinced, very hope you it clear I are is Now, “Yeah, okay. I over the weekend. too, who committed this drugs. my drugs, memory do I deal but is crime was none other than Christina Marsh” good. long ago. not so It’s a time I can’t “[y]ou entirely disregard [the should de- every be held accountable for detail.” because, testimony fendant’s alibi witnesses’] remember, you every if will one of them lied sincerely Friday 7 if [one

on the stand.... doubt He flat out denies on that he splitting a witnesses] the alibi had seen Christina Marsh told me that he was load of batu awfully there” and “I hard to be- with What Shane Shirota. he tells us on find that, know, (emphas- Monday Id. at at “You I lieve.” P.2d the reason added). contrast, Clark, By thought really Hawai'i I it es said was cocaine 304-05, 209-10, splitting, at P.2d that it we held we were batu.” following testimony concerning again, argument DPA’s elicited the

Once line relationship DPA with improper; was not in substance the was Iona’s Kekiwi: merely seeking impeach credi- your What was rela- [Defense counsel:] bility by changes in highlighting his testimo- tionship with Doreen Kekiwi? ny course of the trial. over the Drugs. [Iona:] [Defense counsel:] Pardon? prosecution’s during trial conduct Drugs. [Iona:] prosecutorial did not amount was—you And [Defense counsel:] when harassment. telling you dealing drugs us with are were Next, argues prose- certain Kekiwi, you trying that what Doreen are occurring during trial cutorial acts rose to tell us? prosecutorial Spe- misconduct. the level of Honor, being [Prosecution:] Your he is cifically, complains: the DPA he Irrelevant, argumentative point. at this frivolously interrupted defense counsel while also. laying 'impeaching a foundation for conference, During ensuing bench de- Freitas, “again when defense counsel explained purported fense counsel rele- dealing to ask Iona tried whether he was question vance of his to the circuit court: Kekiwi[,]” drugs the two DPAs Maui This witness told the Police De- argue join oth- “would tandem each partment police officers Camara arguments,” and er’s Funes that he believes that Doreen Kekiwi him provide failed to with the names of its responsible Timmy for the death of contends that rebuttal witnesses. Cordeiro that Do- Blaisdell. If this witness believes foregoing separately and conduct—both responsible for reen Kekiwi the death cumulatively—prejudiced right his to a fair Blaisdell, Timothy I I believe that should trial. We address each of Cordeiro’s conten- get be to into of his able cross-examination tions in ten. opinion 701 under Rule that he believes responsible that Doreen Kekiwi is for the First, transcript the trial reveals Timothy death Blaisdell. that, during defense counsel’s cross-examina Freitas, approach tion of DPA to asked listening argu- After defense counsel’s bench, whereupon complained to the ment, asked, ‘Why you circuit court do jury, judge, hearing trial of the outside the go background into all the in order to need im properly that was not defense counsel question, simple ask a whether he told the and, peaching consequently, that the witness police simple regards statement to this prosecution particu was uncertain particular individual?” To which defense lar that counsel was at statements defense responded, counsel “If the Court would rath- tempting impeach. Regardless of foundation, lay lay er not or not me have objection prosecution’s and the merits foundation, fine, that would and that propriety im of defense counsel’s method of directly point.” [the] would be Defense conference, peachment, following the bench counsel then resumed cross-examination able, any defense counsel was without unwar speculation regarding was able to elicit Iona’s interruptions, ranted to resume cross-exami Kekiwi’s involvement the Blaisdell murder. impeach in prior nation and Freitas with a Thus, again, assuming arguendo once consistent statement he had made objection prosecution’s was without mer- Thus, jury. grand assuming arguendo that it, any way prejudice it did not in Cordeiro’s objection prosecution’s was without mer right to a fair trial. it, prejudice right it not to a did Cordeiro’s Third, our based on review fair trial. record, only can find instance in we one Second, assertion, joined contrary which DPA in DPA to Cordeiro’s Rivera Jenkins’s prosecution prevent argument without circuit court. did not his defense leave said, questioning regarding Specifically, Iona DPA' “That’s counsel from his Rivera following relationship' right[,]” a statement made to the with Kekiwi. Defense counsel

427 during prevail To on circuit court DPA Jenkins bench his ineffective assistance claim, addition, must establish [Cordeiro] conference. In we note that DPA counsel performance that his “trial counsel’s was Rivera asked the circuit court leave to reasonable—i.e., objectively it [that speak, granted, which three other vant occasions unchanged Hawaii his right,” DPA Rivera should not have circuit court to Cordeiro’s ... ... Rules of the Circuit Courts of the State of utterance [o]nly be heard on without first (RCCSH) during right one counsel for each could speak, “[e]xcept by to a bench conferences. Rule. present, provides possibly fair requesting we question.” Although 17(e) (1998), trial. cannot have leave of said, leave discern jeopardized party which is in rele- court[,] “That’s shall how Briones, impairment fense[.]” to a [966] at 976 halewai, ined (1972)). Thus, demanded of fective assistance of counsel need & n. specific not] either the withdrawal or substantial (1980)). 54 Haw. 74 Haw. ‘within the of a error or [(1993)] (quoting attorneys in 349 & n. Id, The defendant [Cordeiro] must potentially (quoting ^[442] omission range 501 P.2d at criminal cases.’ State meritorious de 462, State v. Ka raising competence v. ... point not, 848 P.2d Antone, “result how inef 979 ” ever, prove alleged error or omis Finally, Cordeiro cites no rule or “ sion redounded to his or her ‘actual’ authority requires other prejudice.” at Id. P.2d provide the defense with the names of its (citations omitted). Rather, the determi witnesses, rebuttal nor are we aware of ‘potentially nation “whether defense is any.31 suggest Nor does he the manner in requires meritorious’ an evaluation of the may prejudiced which he have been for want possible, probable, rather than the effect-of of a list of names. We therefore decline to the defense on the decision maker.” Id. point address this of error. 387, 394-95, Poaipuni, 98 Hawai'i sum, nothing improper we find (2002) (some P.3d 360-61 brackets added complains; conduct of which nor do original). and some prejudiced right it we believe that Cordeiro fashions ineffective assistance trial, separately to a fair either cumula- of counsel claim from several of his other tively. Accordingly, hold that the circuit we Specifically, points appeal. error denying mo- court did not err Cordeiro’s that was contends defense counsel ineffective prosecuto- tions for a mistrial on the basis of (1) oppose consoli- because he failed to: the rial misconduct. attempted degree dation of the first (2) case; pre- with Blaisdell file a cases the J. Cordeiro Was Not Denied Effec- first trial motion to dismiss the defective tive Assistance Counsel. Of (3) object degree robbery charge; to the point respect Cordeiro’s final of error on circuit court's instructions with charge degree robbery; appeal is that he was not afforded the effec to the of first counsel, guaranteed by prompt limiting instructions re- tive assistance of move for garding sixth to the the “other bad acts” evidence and the amendment United States object inadequate jury Constitution.32 to the circuit court’s 12.1(b) presence require prosecu- 31. HRPP Rule does ness who testified as to Cordeiro’s advance, writing or, tion to "inform the defendant of the murder—in the scene of Blaisdell’s upon matter, names and addresses of the witnesses for that that of other witness called rely government whom the intends to to establish case-in-chief, during prosecution's as re- presence alleged defendant’s at the scene of the 16(b)(l)(i). quired by HRPP Rule offenseL,]’’in the event that the defense notifies rely upon prosecution that it intends to an United Slates 32. The sixth amendment to the defense, called alibi but none witnesses provides "Li]n Constitution relevant prosecution regarding on rebuttal testified enjoy prosecutions, all criminal the accused shall presence Cordeiro’s at “skid row.” Cordeiro right ... of Counsel to have Assistance allege prosecution does not that the failed to for his defence.” provide only him with Freitas's name—the wit- evidence; regarding proceedings instruction the' remand latter further adequately apprise Bergquist’s opinion. himself of consistent with this testimony regarding allegation that Frei- perjuring

tas was himself. NAKAYAMA,J., Concurring opinion by RAMIL, J., III.A, joins. supra, with whom As discussed sections III.B, III.C, do not that con we believe agree holding I with this court’s that the degree solidation of the first mur failing circuit court did not err to instruct improp der cases with the Blaisdell case jury that “victim” of the theft— er, charge degree robbery of first property whether the owner of the taken or offense, an failed to state or that the circuit person against whom the defendant al- limiting regarding court’s instruction “other legedly used force—must be “aware of the inadequate bad acts” or un (HRS) theft.” Hawaii Revised Statutes timely. Consequently, we do not believe 708-840(l)(b)(i) provides person § that a defense counsel was ineffective these res if, robbery in commits the first while holding Furthermore, pects.33 light of our theft, committing person is armed “[t]he III.A, upra which section vacates s dangerous per- with a [ ] instrument and conviction, degree robbery anyone son uses force his claims of ineffective assistance re with intent person’s overcome spect degree robbery to his first conviction physical physical power resistance or of re- See, Silva, e.g., v. moot. State are 708-840(l)(b)(ii) (1993) § sistance.” HRS (noting added). (emphasis According plain appellate “a decision on issues in other 708—840(1)(b)(i), language § of HRS actual may effectively court moot an as ineffective overcoming physical of the victim’s resistance claim”). sistance physical power is not of resistance re- Finally, we do not believe that defense Rather, quired. prove must adequately apprise him- counsel’s failure intent to overcome the victim’s physical re- Bergquist’s testimony self of “resulted in ei- physical power of resistance. sistance impair- ther the withdrawal or substantial Thus, agree reasoning I with this court’s potentially of a defense[.]” ment meritorious 708-840(l)(b)(i) require § not HRS does Berguist’s testimony clearly indicated that he victim’s awareness the theft. possess any might did information that However, my I would dis like reiterate supra Cordeiro, see helped have section agreement holding in with this court’s Thus, only III.H. defense counsel’s failure Mitsuda, Hawai'i 947 P.2d 349 parties served to of all in- waste the time (1997). Mitsuda, this court held volved, substantially not to withdraw or im- necessary victim’s awai’eness of the theft is a pair potentially meritorious defense. § according element 708- HRS Accordingly, we hold that Cordeiro’s 840(l)(b)(ii). Mitsuda, 86 Hawaii claims of ineffective assistance counsel are dissent, my explained P.2d at 358. In I moot or without either merit. acquiescence compel the intent to is an ele 708—S40(l)(b)(ii), § than ment of HRS rather IV. CONCLUSION the victim’s awareness the theft. (1) light foregoing, of the we affirm 708—840(1)(b)(ii) degree provides § Cordeiro’s convictions of mur- that a second HRS prohibited place keep person robbery degree if der and firearm commits the first (Cr. 94-0522(3)) theft, committing person No. “[t]he the Blaisdell case while degree dangerous Iona with a and [] armed instrument (Cr. 97-0073(3)), person case No. vacate Cordei- threatens the imminent use of person anyone ro’s conviction of and sentence for first de- force who is case, with intent acquiescence gree robbery compel the Blaisdell robbery charge particulars 33. While the first failed to move for a bill of did result impairment charged name the Cordeiro was with "either the withdrawal or substantial using against, potentially meritorious defense.” force defense counsel’s failure to § taking escaping proper- required in both HRS 708- of or element 708-840(l)(b)(ii). 840(l)(b)(i) 708-840(l)(b)(ii) § and HRS ty.” (empha- §HRS added). § sis Similar HRS 708- 708-840(l)(b)(ii)

840(l)(b)(i), § uses the HRS prove word must “intent.” The intent compel acquies- perpetrator’s cence, acquiescence rather than actual Thus, victim. the victim’s awareness is not notes (hereinafter, No. 97-0073 “the Iona Cr. B. Points Cordeiro’s Error Of case”), hiring Cordeiro was John accused first and points second of error Freitas, Iona in March K. 1995 to kill who degree challenge robbery his first prosecution’s conviction only eyewitness First, in with charged with which connection the Blaisdell case. murder Cordeiro was (here- Blaisdell In case. Cr. No. 95-0503 Cordeiro asserts that the indictment inafter, ease”), “the Cornelio Cordeiro was expressly Blaisdell case failed to name either hiring accused of William Cornelio June person victim the or theft indictment, to kill Freitas. A third whom used Cordeiro force. Because he rais- (hereinafter, in Cr. No. returned 96-0310 es appeal, the issue the first time on ease”), “the Kekona hir- accused Cordeiro of urges this court recognize Anthony ing fall Kekona sometime error, alleged plain warranting defect re- And, finally, kill 1995 to Cornelio. a fourth degree first robbery versal of his conviction. indictment, (hereinafter, Cr. No. 98-0149 Second, urges that the circuit court case”), Kapika “the of hir- accused Cordeiro plainly failing jury erred instruct the Kapika January R. ing Nedrie 1998 to kill [unanimously] that “it must find that or one (hereinaf- Freitas. each of matters these specifically persons named more was a victim ter, collectively, “the theft,” that the “victim’s awareness cases”), for, moved necessary is a the theft element of first to, object counsel did not defense degree robbery,” and could granted court circuit consolidation with the guilty only “find [Cordeiro] [of of the murder Blaisdell case. Blaisdell] [it] if that [Cordeiro] determined However, trial, prior to circuit court concurrently committed that offense with (in robbery dismissed the Kekona case which Cornelio [offense].” murder, 707-701.5, gree carry § person of HRS knowingly violation shall be unlavMi.ilfor a 1; supra charged note him see count with person person’s on the or have within the imme- firearm, place prohibited keep violation of intentionally diate control use or threaten to 134-6(c), 3; supra § HRS charged see note count 3 engaged use a firearm while in the commission kidnapping, him with violation of felony,” separate except of a under certain condi- 707-720(l)(c) (1993) ("A § person HRS commits tions.). kidnapping person the offense of ally if the intention- knowingly restrains another

Notes

notes irrelevant!.]” it was about importance prejudicial, is foremost it relates to individu- whether the evidence Vasquez- 23. cite United States v. Cordeiro does easily compartmentalized.” al defendants Velasco, (9th Cir.1994), for the 15 F.3d Vasquez-Velasco, Consequently, F.3d at 846. duty judge proposition that a "trial has a unhelpful to the decision is Cordeiro. jury purpose diligently on of the instruct limiting fy case basis whether to issue a physical instruc him to “a construct model show 404(b) tion when HRE Rule evidence is in ing path trajectory and of the bullet” that troduced at the conclusion of the trial. Contrary and/or killed Blaisdell. to Cordeiro’s' con bright-line is no Compare tention, There rule. however, Bar Dr. Manoukian did not con Akau, 383, 397-98, retto v. Rather, 463 P.2d any struct models. styro- he used a (1969), Chong, Haw. foam head to illustrate the results of the 246, 253-54, App. autopsy 1117-18 performed and, that he on Blaisdell (1982). Inasmuch as Cordeiro was not on specifically, more point indicate the1 offenses, trial any drug-related entry but evi path of the bullet that killed Blais- dence of the illegal drugs use and sale of expert anatomic, dell. anAs in the area of trial, permeated nevertheless clinical, numerous pathology, and forensic Dr. Manouki- repetitive limiting might instructions qualified perform an was autopsy an on heedlessly highlighted well have and focused Blaisdell and to illustrate the results of the upon attention the evidence. autopsy using styrofoam head. Conse quently, per the circuit court did not err Ultimately, Cordeiro’s contention that the mitting Dr. testimony. Manoukian’s overmastering was roused to hostility by his with drugs' involvement E. The Circuit Court Did Not Err In jury acquitted belied the fact that the him Striking Expert Cordeiro’s Witness. of two Thus, charges.24 any the record is devoid of Cordeiro contends that the circuit fact, jury, indication that inap- made striking expert witness, court erred in his propriate use of the “other bad acts” evi- Hill, Wayne whom he claims would have right dence or that his to a fair trial was testified that the residue from lifted Shirota’s jeopardized. only truck gunshot was not consistent with residue, but also with such other environ sum, (1) In we hold that the circuit court mental sources as lead radiator or an auto correctly determined that- the evidence of battery. prosecution mobile points The out illegal drugs use sale of (1) expressly agreed that Cordeiro his threat to “shoot” Mitsumura were rele striking circuit court’s Hill because Cordei- vant and the circuit court did not ro’s defense counsel was unable to contact abuse its in determining discretion him, clearly defense counsel never probative value of these “other bad acts” was requested that circuit change court its substantially outweighed by danger and, prior event, ruling, that Hill prejudice. of unfair qualified expert. was never as an D. The Circuit Court Did Err Not Our review the record confirms that Admitting Testimony Dr. Ma- Of agree Cordeiro did Hill indeed strike from Regarding noukian Trajectory Of during hearing pretrial witness list on The Bullet That Killed Blaisdell. motions, 30,1998, conducted on June because argues the circuit Cordeiro’s defense counsel “was not able court in permitting erred Dr. get anything Manoukian to from Mr. Hill” and ha'd no idea testify aas expert,” “homicide reconstruction testimony what his would agree be. We also physician’s the basis that qualifica with the that Cordeiro never expert “anatomic, tions as an area moved the circuit court to reconsider the clinical and pathology” quali forensic did not Accordingly, matter.25 we hold that cir- supra 24. See also note does live on the I haven’t mainland. had con- period [Hill] tact with for some of time now.

Case Details

Case Name: State v. Cordeiro

Court Name: Hawaii Supreme Court

Date Published: Oct 7, 2002

Citation: 56 P.3d 692

Docket Number: 22065

Court Abbreviation: Haw.