Lead Opinion
On June 30, 2005, defendant-appellant-petitioner Reginald Fields (“Fields”) filed an application for writ of certiorari to review the published decision of the Intermediate Court of Appeals (“ICA”) in State v. Fields, No. 25455, — Hawai'i -, — P.3d -,
The parties do not dispute that Fields was convicted on the strength of hearsay. In affirming the conviction, the ICA held that the admission of these extrajudicial statements as substantive evidence of Fields’ guilt did not violate Fields’ constitutional right of confrontation. During the pendency of Fields’ appeal before the ICA, the United States Supreme Court decided Crawford v. Washington,
I. BACKGROUND
A. Factual Background
On the night of April 13, 2002, Fields was home with his then-girlfriend, Melinda Staggs (“Staggs”) and a friend, Dave Richards (“Richards”). Fields and Richards were eating dinner when Fields received a phone call from Staggs’ mother, Patsy Pepper (“Pepper”), who threatened to “com[e] over to the house to kick his ass and kill him.” Pepper and several men thereafter arrived, and a fight ensued. Staggs was struck multiple times while attempting to protect Fields, who was wearing a colostomy bag and recovering from an operation.
Fields’ landlord, Karma Lhamo (“Lhamo”), also lived on the property in a house approximately one-hundred feet away. Hearing Staggs yelling, Lhamo summoned the police; officers arrived fifteen minutes later and escorted Pepper and her friends off the property. No arrests were made, however, because Staggs refused to press charges.
Later that night, a second argument arose between Staggs, Fields, and Richards. From her bedroom, Lhamo heard “slapping sounds” and a “hard thug” that sounded like “somebody falling to the ground.” She then heard someone (presumably Richards) yell, “Reggie, get off her.” Phoning the police again, Lhamo made her way to the neighboring house, where she found Staggs sitting on her couch “kind of shook up, kind of scared and ... half beaten or something.”
Kauai Police Department (“KPD”) Officers Karen Kapua (“Officer Kapua”) and Elliot Ke (“Officer Ke”) arrived at the residence to find that Fields and Richards had already departed. Staggs was crying and her clothes were torn. The officers also observed red marks or scratches on Staggs’ chin, shoulder, and left cheek, and that she appeared intoxicated.
Officer Ke questioned Staggs, who informed him that Fields was upset with her about the evening’s earlier altercation with Pepper. She stated that she was lying on the couch watching television when Fields approached her from behind, held her neck against the couch, and punched her on the left side of her face. Officer Ke urged Staggs to fill out a statement, but Staggs declined and instead requested a lawyer. She also rebuffed the officer’s suggestion that she visit a women’s shelter. Officers Ke and Kapua left without seeing Fields or Richards.
B. Procedural History
On April 29, 2002, plaintiff-appellee-re-spondent State of Hawai'i (“prosecution”) filed a complaint charging Fields with committing the offense of abuse of a family or household member, in violation of HRS § 709-906(1).
Fields’ jury-waived trial commenced on July 29, 2002. Staggs, the prosecution’s first witness, testified on direct examination that she had “a hard time remembering” any of the events on April 13, 2002 and could not recall her conversation with Officer Ke. Nevertheless, on cross-examination, she testified about the incident as follows:
Q. Do you recall, Ms. Staggs, on this particular night, April 13th we’re talking, David Richards being present?
A. I believe—yes, I believe he was.
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Q. And do you recall whether on this night—on this—or this evening whether or not you were drinking anything?
A. Yes, I was.
Q. What were you drinking?
A. Beer.
Q. Okay. Did you have a lot to drink?
A. Yes.
Q. Is that, perhaps, why you have no recollection?
A. Perhaps.
Q. Do you—do you under—do you recall, perhaps, any incident involving Mr. Fields’ surfboards—surfboard?
A. Um-hmm.
Q. And might that involve a threat to Mr. Fields that if he left that you were going to break his surfboard?
A. I think that may have occurred.
Q. Okay. Do you recall laying on his board in such a way, I guess maybe it was between the table and the chair, and then threatening to sit on it that—something like that?
A. Yeah, I do remember that.
Q. Okay. Do you recall perhaps Mr. Richards trying to hold your wrists to keep you from slapping him, et cetera? Do you recall that at all?
A. No, I don’t remember that.
[DEFENSE COUNSEL]: Nothing further. Thank you, your Honor.
Lhamo then testified for the prosecution. Regarding her second emergency phone call, Lhamo stated the following:
[DEPUTY PROSECUTING ATTORNEY:] Okay. After you called 911 what did you do?
[LHAMO:] I went to go over and to see if [Staggs] was okay euz Reginald and his company had left in his Suzuki. . They left the property, and I guess Melinda was wanting to know if he was okay or not.
[DPA:] How—how was Melinda acting when you (inaudible)?
[LHAMO:] She was kind of shook up, ldnd of scared, ldnd of, you know, like what is—what is really going on here, you know.
The prosecution subsequently inquired whether Richards said anything to Fields during Fields’ argument with Staggs. Her memory initially faltering, Lhamo utilized a police report
Next to the witness stand was Officer Ka-pua, who recalled that Staggs “was crying” and had “a red mark on her chin and also a red scratch on her right shoulder” when she and Officer Ke arrived at Staggs’ home.
Officer Ke recounted, without objection, the substance of Staggs’ answers to his questions on the night of April 13, 2002:
[DPA:] Did you talk to Ms. Staggs?
[OFFICER KE:] Yes, I did.
[DPA:] And where did you talk to her?
[OFFICER KE:] She was in the living room at the—her residence.
[DPA:] And did you ask her what happened?
[OFFICER KE:] Yes, I did.
[DPA:] What did she say?
[OFFICER KE:] She said that she and Reggie got into a[sic] argument. Reggie was upset. I guess her mom brought some friends over earlier in the evening and the police had to come by. They were upset so they were arguing. And she said she was laying down on the couch watching TV, and I guess Reggie came up behind her and started holding her down, pressing on her neck with both of his hands, like, ldnd of holding her down on the couch. And then she also said that he punched her in the face, left side of her face, Melinda’s face.
Upon further questioning by the prosecution, Officer Ke also described Staggs’ appearance at the scene:
[DPA:] Can you describe Ms. Staggs’ appear*ance when you saw her?
[OFFICER KE:] She—her clothes was [sic] torn at the front, she had—her face— her face was red on her left cheek was— and there were also abrasion [sic] on her chin and a scratch on her shoulder. She was also—appeared to be intoxicated.
[DPA:] And how was her demeanor when she was talking to you?
[OFFICER KE:] She was crying and upset.
On cross-examination, Officer Ke confirmed that Staggs declined to sign a written statement because she wanted to consult a lawyer. The prosecution rested at the conclusion of Officer Ke’s testimony.
The parties thereafter stipulated to the admission of a report prepared by special investigator Leon Gonsalves (“Gonsalves”),
Finally, Fields took the stand and testified in his own defense. According to Fields, Richards asked to be driven home following the altercation with Pepper. Staggs protested that she did not want to be left alone and struck Fields after he insisted that she remain at home. She also “kicked in the door” and threatened to break Fields’ surfboard. Fields testified that he and Richards nevertheless departed, and he denied ever hitting Staggs. He also noted that he was wearing a colostomy bag that restricted his movements on the night of the alleged offense.
During closing arguments, the prosecution emphasized that Lhamo heard Richards say, “Reggie, get off her,” and that Staggs informed Officer Ke that Fields “was on her holding her down.” The prosecution argued that both statements were substantive evidence that Fields abused Staggs.
Counsel for Fields submitted on the evidence presented and declined to make a closing argument.
In its oral ruling, the family court relied heavily on the out-of-court statements of Staggs and Richards to support its finding of guilt:
The Court understands from the testimony that there were two instances—or incidents on the same day. The initial incident had to do with a carload of people coming to the residence where the Defendant and victim were living. And following that incident there was another incident about 11:30, 11:40 when the police were called as a result of the landlord hearing some sounds. Among the statements or sounds that the landlord heard was the statement of one person, believed to be [Richards], saying: Reggie, get off her.
The police observed the demeanor and condition of [Staggs]. Her clothes were torn in front, cheek was red, there was abrasion on her chin, scratch on her shoulder. There were statements that [Fields] and [Staggs] had got into an argument because of the earlier incident involving the—when the police came over, and that [Fields] grabbed or came—came upon her from behind, held her down and struck her in the face.
Based upon what the Court has heard, ... the Court will find that the [prosecution] has proven its ease beyond a reasonable doubt and will find you guilty of the offense.
Based on its oral ruling, the family court entered a judgment of conviction on October 11, 2002 and sentenced Fields to a term of two years’ probation. On November 7, 2002 Fields filed a timely notice of appeal.
C. Fields’ Appeal Before the ICA
On appeal before the ICA, Fields argued that the family court plainly erred by admitting Staggs’ statement, as related by Officer Ke, that Fields held her down and punched her in the face.
The prosecution answered that: (1) Fields’ conviction should be affirmed because Fields did not timely object to the admission of Staggs’ and Richards’ hearsay statements; and (2) if the ICA noticed plain error, the case should be remanded for an evidentiary hearing on whether the statements were admissible hearsay.
Fields replied that: (1) the ICA should notice plain error because the error complained of violated his constitutional right of confrontation; (2) neither statement was admissible as a hearsay exception under the HRE; and (3) insofar as neither statement was admissible, the record lacked sufficient evidence to support his conviction.
On September 14, 2004, the ICA ordered the parties to file supplemental briefs addressing State v. Haili,
Fields’ supplemental brief added that the family court plainly erred by accepting Lha-mo’s testimony as to Richards’ statement, “Reggie, get off her,” inasmuch as it violated his rights under Crawford.
The prosecution answered that: (1) the family court properly admitted Staggs’ and Richards’ hearsay statements; and (2) assuming, arguendo, that the family court erred by admitting Richards’ statement, such error was harmless.
On May 31, 2005, the ICA filed a published opinion affirming Fields’ conviction.
1.Fields’ confrontation clause claims
Addressing Fields’ confrontation clause claims, the ICA first quoted at length from Ohio v. Roberts,
Based upon Crawford, as well as a lengthy excerpt from United States v. Owens,
2. The HRE
The ICA subsequently noted that the admission of Staggs’ and Richards’ out-of-court statements did not comply with the statutory provisions of the HRE. The ICA conceded that, had counsel objected to Staggs’ and Richards’ hearsay statements, such objections could not have been validly denied. Nevertheless, the ICA concluded that the family court did not commit “error” when admitting the hearsay statements because it had no “duty” to exclude the evidence absent trial counsel’s objection. The ICA emphasized that trial counsel’s failure to object to Staggs’ and Richards’ hearsay statements presented an ineffective assistance of counsel claim, which Fields could assert in a collateral post-conviction proceeding, pursuant to Hawai'i Rules of Penal Procedure (“HRPP”) Rule 40.
3. Sufficiency of the evidence
Finally, the ICA concluded that, because the admission of Staggs’ and Richards’ out-of-court
Accordingly, the ICA affirmed the family court’s October 11, 2002 judgment without prejudice to Fields asserting an ineffective assistance of counsel claim in a post-eonviction proceeding, pursuant to HRPP Rule 40.
D. Fields’ Application for Writ of Certio-rari
On June 30, 2005, Fields filed a timely application for writ of certiorari, in which he contended that the ICA gravely erred by (1) failing to find that the admission of Staggs’ and Richards’ hearsay statements did not violate the confrontation clause of the Ha-wai'i Constitution, (2) declining to notice plain error and abdicating judicial review in favor of a post-conviction HRPP Rule 40 proceeding, and (3) failing to acknowledge that the prosecution failed to adduce sufficient admissible evidence to support his conviction.
II. STANDARDS OF REVIEW
A.Application for Writ of Certiorari
When determining whether to grant or deny an application for writ of certiorari,
this court reviews decisions for (1) grave errors of law or of fact, or (2) obvious inconsistencies in the decision of the ICA with that of the supreme court, federal decisions, or its own decision and the magnitude of such errors or inconsistencies dictating the need for further appeal. See HRS § 602-59 (1993).
Wemple ex rel. Dang v. Dahman,
B. Constitutional Questions
“We answer questions of constitutional law by exercising our own independent judgment based on the facts of the case.... Thus, we review questions of constitutional law under the ‘right/wrong’ standard.” State v. Feliciano,
C. Sufficiency of the Evidence
Regarding a criminal defendant’s claim that the prosecution failed to adduce sufficient evidence, we have stated as follows:
We have long held that evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. The test on appeal is not whether guilt is established beyond a reasonabledoubt, but whether there was substantial evidence to support the conclusion of the trier of fact....
“Substantial evidence” as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion.
State v. Batson,
III. DISCUSSION
A. The Hawai‘i Constitution’s Confrontation Clause
Fields contends that the ICA gravely erred by affirming a conviction that was based primarily on hearsay evidence rendered inadmissible by the confrontation clause of the Hawaii Constitution. For the reasons that follow, we disagree.
1. The right of confrontation as understood at the time of Fields’ trial
The confrontation clause of article I, section 14 of the Hawaii Constitution states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused[.]”
The right of confrontation “affords the accused both the opportunity to challenge the credibility and veracity of the prosecution’s witnesses and an occasion for the jury to weigh the demeanor of those witnesses.” State v. Ortiz,
Nonetheless, we have stopped short of holding that the right of confrontation poses an absolute bar to the admission of all out-of-court statements. See Haili,
As regards the first part of the Roberts test, we have remained resolute that[,] under the confrontation clause of the Hawaii Constitution, a showing of the declarant’s unavailability is necessary to promote the integrity of the fact finding process and to ensure fairness to defendants....
Upon demonstrating that a witness is unavailable, under the second half of the Roberts test, only statements that bear “adequate indicia of reliability” may be admitted into evidence. “Reliability” may be shown in two ways. First, reliability may be inferred without more if it “falls within a firmly rooted hearsay exeeption[.]” Ortiz,74 Haw. at 361 ,845 P.2d at 556 (quoting Roberts,448 U.S. at 66 ,100 S.Ct. 2531 )....
Alternatively, reliability may be demonstrated “upon a showing of particularized guarantees of trustworthiness.” Ortiz,74 Haw. at 361 ,845 P.2d at 556 (quoting Roberts,448 U.S. at 66 ,100 S.Ct. 2531 ). The United States Supreme Court has declined “to endorse a mechanical test for determining ‘particularized guarantees of trustworthiness’ under the [Confrontation] Clause.” Idaho v. Wright,497 U.S. 805 , 822,110 S.Ct. 3139 ,111 L.Ed.2d 638 (1990). Instead, the Court has determined that “ ‘particularized guarantees of trustworthiness’must be shown from the totality of the circumstances” and that “the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. at 819, 110 S.Ct. 3139 .
Sua,
Our endorsement of Roberts as the appropriate litmus for identifying constitutionally inadmissible hearsay was therefore settled at the time of Fields’ trial. See id. at 71,
2. Crawford v. Washington
The United States Supreme Court’s decision in Crawford, decided during the pen-dency of Fields’ appeal before the ICA, makes untenable our continued reliance on Roberts to define all forms of hearsay inadmissible under the confrontation clause. At issue in Crawford was an unavailable declar-ant’s tape-recorded statement that was played to the jury to refute the defendant’s theory of self defense. Id. at 39-40,
Crawford concludes that the history behind the sixth amendment supports important inferences about the constitutional right of confrontation. “First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 50,
As interpreted by Cranford, then, the primary object of the right of confrontation lies in securing for the criminal defendant a basic procedural guarantee: that he be entitled to confront and cross-examine “witnesses” who bear “testimony” against him. Id. at 51,
In sum, instead of asking whether an unavailable declarant’s statement bears “sufficient indicia of reliability” (as Roberts required), Crawford commands that we query, “Is the hearsay testimonial?”
To that end, Crawford confirms that some types of hearsay—“prior testimony at a preliminary hearing, before a grand jury, or at a former trial[,] ... police interrogations^]” and plea allocutions—are undeniably testimonial under the sixth amendment. Id. at 64, 68,
Various formulations of this core class of “testimonial” statements exist: “ex parte in-eourt testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346 , 365,112 S.Ct. 736 ,116 L.Ed.2d 848 (1992) (THOMAS, J., joined by SCALIA, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it.
Id. at 51-52,
3. Davis v. Washington
Having left several foundational questions unresolved in Crawford, the United States Supreme Court revisited the analysis in its consolidated opinion in Davis.
Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation— as either testimonial or nontestimonial, it suffices to decide the present cases as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis,
a. Davis, No. 05-5224
Dams involved out-of-court statements made by Michelle McCottry (“McCottry”) while speaking with a 911 emergency operator on the telephone. Id. at 2270-71. McCottry reported an ongoing domestic disturbance with her former boyfriend, Adrian Davis (“Davis”). McCottry informed the operator that Davis was “jumpin’ on [her] again[,]” and that he was “usin’ his fists.” Id. at 2271. During the conversation, Davis struck McCottry and ran out the door. Id. The operator informed McCottry that the police were on their way, and that, “They’re gonna check the area for him first[.]” Id. The police arrived four minutes later and observed that McCottry appeared distressed, that she recently sustained injuries to her face and forearm, and that she had frantically collected her children and her belongings in her preparation to leave the residence. Id. Davis was charged with violating a “domestic no-contact order.” Id. McCottry did not testify, and, over Davis’ objection, the trial court permitted a recording of McCot-fays conversation with the emergency operator. Id. The jury thereafter returned a verdict of guilt, and Davis’ conviction was affirmed by both the Washington Court of Appeals and the Washington Supreme Court. Id. The United States Supreme Court granted certiorari. Id. at 2272.
b. Hammon, No. 05-5705
In Hammon, the police responded to a reported domestic disturbance at the residence of Hershel and Amy Hammon (hereinafter individually referred to as “Hershel” and “Amy”). Id. at 2272. Upon arrival, the police discovered Amy sitting alone on the front porch. Id. Amy gave the police permission to enter the dwelling, and the police further observed broken glass in front of “a gas heating unit” from which flames were being emitted. Id. Hershel was also on the premises, and he informed the police that he and Amy were arguing, but that the dispute had been resolved without becoming physical. Id. Amy’s account differed. Id. After reporting the incident to the police, she filled out a “battery affidavit” as follows: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id. Hershel was charged with domestic battery and violating his probation. Id. At trial, Amy did not testify. Id. The trial court nevertheless admitted Amy’s affidavit under the present sense impression exception to the hearsay exclusionary rule. Id. The trial court also permitted the introduction of Amy’s oral account, via the testimony of one of the responding police officers, under the excited utterances exception. Id. The trial judge found Hershel guilty as charged, and Hershel’s convictions were affirmed by both the Indiana Court of Appeals and the Indiana Supreme Court. Id. at 2273. The United States Supreme Court granted Hershel’s application for certiorari. Id.
The Court thereafter perceived a clear factual distinction between Hammon and Davis, and concluded that Amy’s statements were testimonial:
It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct—as, indeed, the testifying officer expressly acknowledged.... There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything.... When the officers first arrived, Amy told them that things were fine ... and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) “what is happening,’ but rather “what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime—which is, of course, precisely what the officer should have done.
Id. at 2278 (emphasis in original). The Court continued:
The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had herexecute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.”
Id. at 2279 (brackets in original). The Court reversed the judgment of the Indiana Supreme Court and remanded the matter for further consistent proceedings. Id. at 2280.
4. The admissibility of Staggs’ and Richards’ statements following Craivford and Davis
Crawford fundamentally alters our own analysis of article I, section 14 of the Hawaii Constitution. To the extent that our cases have predicated the admissibility of testimonial hearsay on conformance with the now-abandoned “reliability” test set forth in Roberts, Crawford invalidates them. Cf. State v. Grace,
However, to the extent that the hearsay statements in question are nontesti-monial, Davis places them beyond the reach of the federal confrontation clause. See Davis,
We therefore reaffirm Roberts’ continued viability with respect to nontestimonial hearsay. Our position accords with that of other jurisdictions that continue to rely on Roberts to test the admissibility of nontestimonial statements. See, e.g., United States v. Holmes,
These principles thus settled, we turn to whether Fields’ right of confrontation was violated in the circumstances of this case.
a. Staggs’ statement to Officer Ke
When disposing of Fields’ state constitutional claim, the ICA apparently believed that Haili, and not Crawford, was the relevant precedent. The ICA concluded as follows:
When applying the Hawai'i Constitution, Haili, 103 Hawai'i 89 ,79 P.3d 1263 (2003), not Crawford,541 U.S. 36 ,124 S.Ct. 1354 , (March 8, 2004), is the applicable precedent. Haili applies the rule of Roberts. If counsel for Fields had objected to the introduction of [Staggs’] prior testimonial statement into evidence on the ground that it violated the right guaranteed to Fields by the confrontation clause in the Hawai'i Constitution, the objection would have lacked merit and could validly have been denied.
The ICA’s opinion, slip op. at 23-24, at — - -, — P.3d at -. However, it is fundamental that, when interpreting our own constitution, our divergence from federal interpretations of the United States Constitution may not convey less protection than the federal standard. See State v. Richie,
Nevertheless, we agree with the ICA’s ultimate conclusion that Fields’ constitutional right of confrontation was not violated by the circuit court’s admission of Staggs’ statement to Officer Ke on the grounds that Hawaii’s confrontation clause, like its federal counterpart, is not implicated where, as here, the hearsay declarant attends trial and is cross-examined about his or her prior out-of-court statement. In so concluding, we note that the confrontation clause contained within article I, section 14 of the Hawai'i Constitution is virtually identical to the confrontation clause of the sixth amendment to the United States Constitution.
[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green,399 U.S. 149 , 162,90 S.Ct. 1930 ,26 L.Ed.2d 489 (1970).[10 ].... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.
Crawford,
Crawford, despite its absolute rules restricting admission of an absent declarant’s hearsay statement, leaves no room for doubt that the federal confrontation clause is not concerned with the admission of an out-of-court statement where the declarant appears at trial and is cross-examined about that statement. Other jurisdictions interpreting the foregoing excerpt have reached similar conclusions. See Robinson v. State,
Inasmuch as the dissent takes issue with the afore-referenced cases, we now discuss them at length. In so doing, we find Robinson and Tester particularly persuasive inasmuch as the hearsay declarants in those cases claimed losses of memory at trial.
In Robinson, Rodney Shaw (“Shaw”) and Thomas Milo (“Milo”) were at a café when Aunterio Robinson (“Robinson”) entered. Robinson,
Both witnesses testified that they were intoxicated when the incident occurred. Milo admitted being shown the lineup, remembered he picked someone out, and testified that he signed the lineup form. He could not recall any other relevant facts concerning the incident except that Shaw was shot and that he transported Shaw to the hospital. He first testified that he remembered talking to Detective Foster, but shortly afterward he stated, “I don’t even remember him.” He was certain, though, that he did not “tell him anything.” Shaw testified that he did not know who shot him, that he did not know or speak to Detective Foster, and that he did not talk to Detective Johnson. He did not remember being shown a lineup or signing the lineup form.
Id. at 196.
The Georgia Court of Appeals held that the admission of Shaw’s and Milo’s prior statements made to the police did not violate Robinson’s right of confrontation under the sixth amendment to the United States Constitution:
Robinson asserts the authority of Crawford v. Washington,541 U.S. 36 ,124 S.Ct. 1354 ,158 L.Ed.2d 177 (2004), in support of his contention. But in Crawford, the prior statement improperly admitted was that of a wife who did not testify at trial because of a Washington state marital privilege barring her from testifying without her husband’s consent. The United States Supreme Court held that admission of her prior statement violated the Confrontation Clause. The Court explicitly held, however, that
when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior statements.... The Clause does not bar admission of a statementso long as the declarant is present at trial to defend or explain it. The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.
(Citations and punctuation omitted.) Id. at 38, n. 9,124 S.Ct. 1354 . On the other hand, “testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Citations and footnote omitted.) Id.
Here, because the witnesses were present at trial and testified, Crawford does not apply. Robinson’s confrontation right was not violated.
Id. at 197 (ellipses in original).
In the ease at bar, as in Robinson, the reluctant witness testified to an extent, despite claiming memory loss as to material elements of the alleged crime. Furthermore, neither Staggs nor the hearsay declarants in Robinson testified as to the subject matter of their prior out-of-court statements. Insofar as the Robinson court thus concluded that Craioford was inapplicable, we are similarly persuaded that the same result should be reached here.
In Tester, Dwight Tester, Sr. (“Tester”) was convicted of the offense of aggravated sexual assault. Tester,
She stated that [Tester] had hurt her. When asked how, she testified that she did not remember. D.T. acknowledged that she had told [her therapeutic foster mother] that [Tester] had touched her vagina. She reiterated that [Tester] had touched her, but testified that she did not know how he had touched her.
Id. at 220.
In a pro se brief, Tester argued that D.T.’s out-of-court statements should have been excluded because they violated his right of confrontation guaranteed by the sixth amendment to the United States Constitution, as interpreted by Crawford. Id. at 221 n. 2. The Supreme Court of Vermont rejected that argument, stating that “Crawford is inapposite because D.T. testified at trial.” Id.
Here, as in Tester, the hearsay declarant— despite some degree of memory loss—testified at trial and was cross-examined. Accordingly, Tester supports the proposition that the Crawford analysis is not applicable to Staggs’ out-of-court statements to Officer Ke.
Although the factual backgrounds of the remaining cases do not parallel the facts presented in the case at bar, the principles espoused in those cases are nevertheless persuasive.
In Johnson, Glenn Johnson (“Johnson”) was found guilty of two counts of aggravated criminal sexual abuse. Johnson,
Johnson was one of the care providers assigned to the victim, and had contact with the victim on eight separate occasions. Id. at 648-49. Johnson then resigned from his position. Id. at 649. Thereafter, the victim told another care provider that he wished that Johnson was still his care provider. Id. When asked why, the victim responded that they “did fun things together.” Id. After further questioning, the victim related that Johnson “licked his asshole” and that Johnson had “bubbles in his ass.” Id. The victim’s mother was informed, and the following conversation ensued:
The victim told his mother, while pointing at his genital area, that [Johnson] licked him. [The care provider] explained that the victim had told him that [Johnson] “licked his asshole.” The victim’s motherasked the victim to show her what his asshole is, and the victim pointed to his penis. The victim’s mother asked the victim if he meant his penis, and the victim said yes. The victim also said that the defendant was pulling on the defendant’s penis and that stuff came out.
Id. The victim also related the foregoing to a police investigator. Id. at 650.
At trial, the victim testified, in relevant part, as follows:
The victim testified that on the way to his uncle’s house, the defendant would stop the car, unbutton or unzip his pants, pull down his underwear, and stick out his penis. The defendant would move his hand up and down on his penis and bubbles would come out. The defendant would then wipe the bubbles off with a napkin. The defendant would then do the same to the victim: unbutton his pants, pull down the victim’s underwear, and squeeze the victim’s penis. The victim saw bubbles come out of his penis. After that they went to the victim’s uncle’s house. However, the victim did not tell his uncle about the incident.
The victim further testified that a similar incident occurred when he and the defendant were in a parking lot. In the parking lot they would stop, and the defendant would unbutton the victim’s pants and pull down his underwear. The defendant held the victim’s penis. The defendant then took the victim home. The victim testified that he did not tell anybody because the defendant told him not to and because he (the victim) would have been in trouble.
Id. at 652.
The victim’s out-of-court statements were admitted pursuant to 725 Ill. Comp. Stat. Ann. 5/115-10 (West 2002), which reads, in pertinent part, as follows:
§ 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, or a person who was a moderately, severely, or profoundly mentally retarded person as defined in this Code and in Section 2-10.1 of the Criminal Code of 1961 at the time the act was committed, ... the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
On appeal, Johnson argued that In re E.H.,
In Crawford, the Supreme Court held that testimonial forms of hearsay evidence are inadmissible absent a finding of unavailability and an opportunity to cross-examine the witnesses. Crawford,541 U.S. at 53-54 ,124 S.Ct. at 1365-66 ,158 L.Ed.2d at 194 . However, when “the declarant appears for cross-examination at trial, the [cjonfrontation [cjlause places no constraints at all on the use of his prior testimonial statements.” Crawford,541 U.S. at 59 n. 9,124 S.Ct. at 1369 n. 9,158 L.Ed.2d at 197 n. 9. In other words, when a child sex abuse victim appears at trial and is subject to cross-examination, any prior statement of the victim being offered pursuant to section 115-10 of the Code is a nonevent. People v. Sharp,355 Ill.App.3d 786 , 796,292 Ill.Dec. 118 ,825 N.E.2d 706 (2005).
Here, the victim testified at trial and was subject to cross-examination. As such, none of the statements admitted pursuant to section 115-10 were improper under Crawford.
Id. (brackets in original).
In Corbett, Trever Corbett (“Corbett”) was convicted of the offense of first degree premeditated
Crystal married Corbett in August 1995. Id. They divorced in December 1996. Id. Crystal married her second husband, Shane Casey (“Shane”), in September 1997. Id. On the morning of June 26, 2000, Crystal’s part-time roommate returned to find Crystal’s body lying in her apartment. Id. Crystal’s neighbor, Jenny Williams (“Williams”) was walking around the apartment complex with her boyfriend, Bryan Miller (“Miller”), at approximately 1:30 A.M. on the morning that Crystal was murdered. Id. at 1186. Williams observed a partially clothed man emerging from the doorway to Crystal’s apartment carrying a pile of laundry. Id. Williams thought she recognized the man as Corbett and greeted him. Id. The man did not respond. Id. Upon learning of Crystal’s death, Williams and Miller contacted the police. Id. Erin Bailey, one of Williams’ friends convinced Williams that she had actually seen Shane, because Corbett was the “nice” ex-husband, and Crystal’s marriage with Shane was tumultuous. Id.
The police presented Williams with a photographic lineup that included Shane’s picture, but not Corbett’s picture. Id. Williams did not know Shane, but she selected his picture from the lineup. Id. The police approached Miller with the same lineup. Id. Miller did not initially select a photograph, and the police accused Miller of smoking marijuana and ordered him to return at a later time. Id. Miller then spoke with Williams, who informed Miller of which photograph she had selected. Id. Miller subsequently met with the police and selected Shane’s picture from the lineup. Id. at 1186-87. Williams and Miller later appeared for depositions at which Williams reaffirmed her identification. Id. at 1187. Miller, however, recanted. Id. Williams thereafter expressed concerns about her own photographic identification. Id.
In January 2001, the police approached Williams and Miller with a second photographic lineup containing pictures of both Corbett and Shane. Id. Both Williams and Miller selected Corbett’s picture from the lineup. Id. At trial, Williams and Miller testified about seeing Corbett outside of Crystal’s apartment the morning she was murdered. Id. at 1188.
On appeal, Corbett argued that the trial court erred by admitting the transcripts from Williams’ and Miller’s depositions. Id. The Supreme Court of Kansas, however, held that the admission of prior testimony of witnesses who testify at trial was not precluded by either Kan. Stat. Ann. § 60-460(a) or the United States Supreme Court’s decision in Crawford. Id. at 1189. The Supreme Court of Kansas stated that
Crawford does not apply ... because both Williams and Miller were available for cross-examination and testified at trial. The language in K.S.A. 60-460(a), which limits the application of the statute to “a person who is present at the hearing and available for cross-examination,” specifically protects the defendant’s right to confrontation by requiring the person to be available for cross-examination at trial. Thus, the application of K.S.A. 60-460(a) negates the application of Crawford.
Id. at 1189-90.
In Ruiz, Juan Ruiz (“Juan”) was convicted of the offense of first degree murder for killing his wife, Carmen Ruiz (“Car-men”). Ruiz,
Juan and Carmen had been married for fourteen years and had four children. Id. Often, Carmen’s friends and co-workers Angel Negron (“Negron”) and Anthony Matos (“Matos”) would drink and socialize at the Ruiz home. Id. During the summer of 1998, Carmen had an affair with Negron. Id. Eventually, Juan told Carmen that he did not want Negron and Matos at his home. Id. In August, Juan moved out of the house. Id.
On September 1, 1998, Negron and Matos were at the Ruiz home when Juan entered the premises. Id. at 775. Carmen and Juan argued in the kitchen while Negron was in the bathroom. Id. Juan proceeded to the bathroom and pounded on the door demanding that Negron come out so they could talk. Id. Matos approached Juan and stated that they were not looking for trouble. Id. Juan responded by stabbing Matos six times in the
At trial, the court admitted Juan’s daughter’s out-of-court statements under the spontaneous utterances exception to the exclusionary hearsay rule. Id.
The Supreme Judicial Court of Massachusetts affirmed the trial court’s ruling, agreeing that Juan’s daughter’s statements were properly admitted as spontaneous utterances. Id. The court also noted that the principles set forth in Crawford were not implicated because Juan’s daughter testified at trial:
The defendant does not argue that admission of [Juan’s daughter’s] spontaneous utterances constituted a violation of the principles stated in [Crawford]. Here, [Juan’s daughter] testified at trial and was subjected to cross-examination. We, therefore, do not need to address what impact the Crawford ease might have on the admission of spontaneous utterances made by persons who do not testify.
Id. at 778 n. 5.
In Gomez, police officers were dispatched to a local convenience store where they encountered a crying and hysterical Carmen Perez (“Perez”). Gomez,
The Texas Court of Appeals rejected Gomez’s claim that his right of confrontation was violated, as follows:
In the case before us, [the responding officers] testified about the statements made to them by the victim, Perez. However, Perez also testified, and [Gomez] had the opportunity to cross examine her three separate times. The fact that Perez testified and was available for [Gomez] to cross examine her makes Crawford inapplicable here.
Id. at 90.
In Mumphrey, Johnifer Ray Mumphrey (“Johnifer”) was convicted of perpetrating an assault on Theresa Reedy (“Reedy”), a member of his family or household. Mumphrey,
According to the trial testimony of the responding police officer, Sheriffs Deputy Craig Strickhausen (“Deputy Strickhausen”), Reedy informed him that Johnifer came over to her residence and asked her for some money. Id. at 657. When she refused he followed her into the house. Id. She retreated to her bedroom and leaned against the door, but he forced his way in and assaulted her by striking her in the face and in the back and neck areas. Id. Reedy also testified, stating that Johnifer “struck her several times and chased her through the house because she had refused to give him money.” Id. at 658.
On appeal, the Texas Court of Appeals held that the trial court properly admitted Deputy Strickhausen’s testimony regarding Reedy’s out-of-court statements under the excited utterances exception to the exclusionary hearsay rule. Id. at 659. In a footnote, the court also stated that “Reedy testified at trial. Therefore, the concerns raised by the recent decision by the United States Supreme Court in [Crawford] are not rele-vante.]” Id. at 657 n. 1.
That concept is not a novel one. For even under this jurisdiction’s version of the Roberts analysis, sufficient cross-examination of the hearsay declarant at trial terminated the inquiry. See Sua,
Here, Staggs claimed memory loss as to her prior statement on direct examination by the prosecution. Tr. 7/29/02 at 8-9. Indeed, she claimed that she could not even remember the incident in question. Tr. 7/29/02 at 8. On cross-examination, however, she willingly and informatively responded to virtually all of the questions posed by Fields’ counsel. Tr. 7/29/02 at 10-11. Her earlier claim that she could not recall the incident was belied by her subsequent testimony on cross-examination. Staggs was able to recall that (1) Richards was present during the incident, tr. 7/29/02 at 10, and (2) during the incident she was “laying on [Fields’] [surfboard” while it was positioned “between the table and the chair” and that she threatened to sit on it and break it if Fields left the premises. Tr. 7/29/02 at 11. She further testified, on cross-examination, that her memory loss as to other portions of the incident could have been caused by the fact that she drank “a lot” of beer on the evening of the incident in question. Tr. 7/29/02 at 10. Fields’ counsel then terminated the cross-examination, having asked only a handful of questions occupying less than two pages of transcript. Tr. 7/29/02 at 10-11. Given the foregoing, we do not think that Fields’ opportunity for cross-examination was insufficient. The trier of fact was provided with adequate information to test the credibility and veracity of Staggs’ prior statement insofar as it could have reasonably inferred that (1) Staggs’ drunken state rendered her prior statement inaccurate or unreliable, and/or (2) Staggs was not an innocent victim but an aggressive participant in the incident who, while angry at Fields, gave a false statement to the police. Fields certainly had the opportunity to develop those theories and cast doubt on Staggs’ earlier out-of-court statement, but voluntarily declined to do so by terminating the cross-examination. Moreover, the fact of Staggs’ memory loss further permitted the trier of fact to test the truth of her prior out-of-court statement. See Owens,
Insofar as Fields had a meaningful opportunity for cross-examination, the dissent’s focus on the “unavailability” paradigm is misplaced. See dissenting opinion, at 547,
Given the foregoing, the dissent’s discomfort with our application of Sua is unwarranted. In Sua, Jonah Gooman (“Gooman”) was
On December 30, 1997, the jury found Sua guilty as charged. Id. at 67,
On appeal, we applied this jurisdiction’s version of the Roberts test to Sua’s claim that the admission of Gooman’s grand jury testimony as a “past recollection recorded” violated his constitutional right of confrontation. Id. at 70,
First, we note that Gooman’s grand jury testimony was given under oath. Second, as the victim, Gooman had direct personal knowledge of the relevant facts. Third, Gooman exhibited no reluctance in the grand jury proceeding to implicate Sua. Fourth, Gooman bore no relationship to the government that would have benefitted him to testify against Sua. Finally, Goo-man never recanted his inculpatory testimony or expressed belated views regarding its accuracy; in fact, at Sua’s trial, Gooman testified that he was able to testify at the grand jury “fully and accurately.” Given these indicia of trustworthiness, we cannot say that the trial court abused its discretion in admitting Gooman’s grand jury testimony into evidence.
Id. at 74,
We subsequently cited the following excerpt from Carey v. United States,
[The witness] was available for cross-examination by [the defendant’s] trial counsel. Indeed, he did cross-examine her at trial about her failure to remember the events on the night of the murder. “The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, blit successful cross-examination is not the constitutional guarantee.” [Owens, 484 U.S.] at 560[108 S.Ct. 838 .] Though [the defendant’s] trial counsel may not have been able to cross-examine [the witness] as he would have liked, our review of the record reveals nothing giving rise the [sic] a deprivation of appellant’s constitutional right of confrontation.
Sua,
We thus concluded that Gooman’s grand jury testimony met both requirements of the Roberts test and that Sua had a sufficient opportunity for cross-examination:
Similarly, in the present matter, Gooman made assertions before the grand jury and later claimed a loss of memory at trial. Sua was provided with the opportunity tocross-examine Gooman regarding his loss of memory. Inasmuch as Gooman’s grand jury testimony met both requirements of the Roberts test, and Sua was able to cross-examine Gooman regarding his failure to remember the alleged incident, we cannot say that the admission of Gooman’s grand jury testimony violated Sua’s right to confrontation.
Id. at 75,
A fair reading of Sua indicates that this court rejected Sua’s confrontation clause argument on two independent and dispositive, but coequal grounds: (1) both prongs of the Roberts test were met; and (2) Sua had a sufficient opportunity for cross-examination. See Sua,
To interpret the conclusion that Sua was able to cross-examine Gooman regarding his failure to remember the alleged incident as a mere “circumstantial fact,” as the dissent suggests, see dissenting opinion, at 554,
The dissent’s misapprehension of Crawford again demonstrates its improper equation of the constitutional “unavailability” paradigm with the inquiry whether the hearsay declar-ant is physically present and available for cross-examination. Because the dissent believes that the federal “unavailability” paradigm asks whether the declarant' is available for cross-examination at trial, it consequently concludes that the hearsay declarant’s physical presence at trial establishes the declar-ant’s “availability” (i.e., lack of “unavailability”). Thus, the dissent translates Crawford’s statement in footnote 9—that the confrontation clause analysis does not bar- the admission of a prior out-of-court statement “so long as the declarant is present at trial to defend or explain it,” Crawford at 60 n. 9,
To the contrary, we read the federal courts’ use of the phrase “available for cross-examination” as taking an intermediate step towards the conclusion that the accused had a meaningful opportunity to cross-examine a hearsay declarant who was physically present at trial; not as establishing the declar-ant’s constitutional “availability” (i.e., lack of “unavailability”) as a witness for the prosecution. See discussion supra. It is the dissent’s erroneous substitution of the phrase, “available for cross-examination,” with the phrase, “available as witness for the prosecution,” that creates the foregoing appearance of incompatibility.
Finally, the dissent claims that we have retained the “unavailability” paradigm with respect to nontestimonial situations and that by excluding the present out-of-court statement from the purview of Hawaii’s confrontation clause we have failed to preserve the “unavailability” paradigm with respect to testimonial situations, thus creating an anomalous result. Dissenting opinion, at 555-56,
To reiterate, and in sum, our present holding is no more, and no less, than that a trial court’s admission of a prior out-of-court statement does not violate the Hawaii Constitution’s confrontation clause where the de-clarant appears at trial and the accused is afforded a meaningful opportunity to cross-examine the declarant about the subject matter of that statement. In such situations, the cross-examination satisfies the accused’s right of confrontation and neither the Crawford analysis nor the Roberts analysis need be employed.
b. Richards’ statements overheard by Lhamo
The ICA declined to address Fields’ claim that Richards’ out-of-court statement,
B. Plain Error
Pursuant to HRPP Rule 52(b), “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Here, Fields expressly argues that his “constitutional right of confrontation is undoubtedly a ‘substantial right’ and the erroneous admission of both statements, in violation of the Hawaii Constitution, did affect [his] substantial rights.... ” However, inasmuch as we have already determined that the admission of Staggs’ prior out-of-court statement did not violate Fields’ right of confrontation, his assertion that his substantial rights have been adversely affected on confrontation grounds is likewise without merit. Insofar as Fields does not advance any other plain error argument on certiorari, he has failed to demonstrate that -his substantial rights have been adversely affected. See State v. Nichols,
We are, of course, cognizant of our inherent power to notice plain error sua sponte. See State v. Grindles,
We have recently stated that the “power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.” State v. Rodrigues,
Here, we decline to notice plain error sua sponte inasmuch as Fields retains the ability to vindicate his rights by filing a petition, pursuant to HRPP Rule 40, asserting a claim of ineffective assistance of counsel. Indeed, the ICA contemplated the appropriateness of such a proceeding, given the unique circumstances presented by the case at bar, as follows:
In cases where the same counsel has represented the defendant/appellant both at trial and on direct appeal, and defendant/appellant, as reasonably expected, does not in his direct appeal contend that he is the victim of his trial counsel’s negligent failure to object to the admission of two hearsay statements into evidence, may defendantyappellant in his direct appeal avoid the issue of whether his trial counsel was ineffective by asserting that the court’s admission of the two hearsay statements into evidence was the court’s plain error?
We emphasize that we offer no opinion as to the merits of such a claim as that question was not presented in Fields’ application for writ of certiorari.
Fields’ final point of error asserts that the prosecution failed to adduce sufficient admissible evidence to support his conviction.
Our standard for assessing the sufficiency of the evidence is well settled: “considered in the strongest light for the prosecution,” the finding of guilt must be supported by “substantial evidence”—i.e., “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion” that every material element of the charged offense was proven. State v. Martinez,
HRE § 709-906(1) describes the offense for which Fields was convicted, and provides, in pertinent part, as follows:
§ 709-906 Abuse of family or household members; penalty.
(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member....
For the purposes of this section, “family or household member” means ... persons jointly residing or formerly residing in the same dwelling unit.
In assessing whether sufficient evidence supports a conviction under HRS § 709-906(1), the following additional guidance is relevant:
[T]o “physically abuse” someone is to “maltreat in such a manner as to cause injury, hurt or damage to that person’s body.” State v. Nomura,79 Hawai'i 413 , 416,903 P.2d 718 , 721 (App.), cert. denied,80 Hawai'i 187 ,907 P.2d 773 (1995); State v. Ornellas,79 Hawai'i 418 , 421,903 P.2d 723 , 726 (App.), cert. denied,80 Hawai'i 187 ,907 P.2d 773 (1995). HRS § 709-906 does not designate the requisite state of mind attendant to the offense of physical abuse of a household member. Thus, “that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.” HRS § 702-204 (1985). Cf. State v. Holbron,78 Hawai'i 422 , 424,895 P.2d 173 , 176 (1995) (requisite state of mind under HRS § 134-7(b) (Supp.1992) unspecified, thus, it is intentionally, knowingly, or recklessly), reconsideration denied,79 Hawai'i 424 ,903 P.2d 729 (1995).
State v. Canady,
Here, the admissible evidence
IV. CONCLUSION
Based upon the foregoing, the judgment of conviction is affirmed.
Notes
. The Honorable Calvin K. Murashige presided.
. HRS § 709-906(1) (Supp.2003) provides, in pertinent part, that "[i]t shall be unlawful for any person, singly or in concert, to physically abuse a family or household member.... For the purposes of this section, ‘family or household member' means ... persons jointly residing or formerly residing in the same dwelling unit.”
.The Davis opinion has not yet been published in the United States Reports, and we henceforth refer to it by its Supreme Court Reporter cita-fion.
. The police report was not submitted into evidence.
. Neither the parties nor the ICA disputed that Staggs' out-of-court statements were "hearsay.” HRE Rule 801 (2002) provides, in pertinent part: " ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The statements were hearsay under HRE Rule 801 inasmuch as they were offered as substantive evidence of the truth of the matters asserted therein—i.e., that Fields abused Staggs.
. Presently, this court employs the following standard of review when determining whether to accept or reject applications for writs of certiora-ri:
§ 602-59 Review of decision of the intermediate appellate court, certiorari, (a) After issuance of the intermediate appellate court's judgment or dismissal order, a party may seek review of the intermediate appellate court's decision and judgment or dismissal order only by application to the supreme court for a writ of certiorari, the acceptance or rejection of which shall be discretionary upon the supreme court.
(b)The application for writ of certiorari shall tersely state its grounds, which shall include:
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the intermediate appellate court with that of the supreme court, federal decisions, or its own decision, and the magnitude of those errors or inconsistencies dictating the need for further appeal..
(c) An application for writ of certiorari may be filed with the supreme court no later than ninety days after the filing of the judgment or dismissal order of the intermediate appellate court. Opposition to an application for writ of certiorari may be filed no later than fifteen days after the application is filed. The supreme court shall determine to accept the application within thirty days after an objection is or could have been filed. The failure of the supreme court to accept within thirty days shall constitute a rejection of the application.
(d) Upon the acceptance of the application, the clerk shall forward the complete file of the case to the supreme court. Supplemental briefs shall be accepted from the parties only upon the request of the supreme court.
HRS § 602-59 (Supp.2006). However, we utilize the prior formulation when reviewing the case at bar insofar as Fields' application for writ of certiorari was filed before the change took effect.
. The confrontation clause of the United States Constitution is virtually identical, and provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const. amend. VI.
. The opinion of the Court consolidated Davis, No. 05-5224, with Hammon v. Indiana, No. 05-5705.
. Although we recognize that we may, under the Hawai'i Constitution, give broader protection than that afforded by the United States Constitution, see Sua,
. In Green, the United States Supreme Court stated, in relevant part, as follows:
Finally, we note that none of our decisions interpreting the Confrontation Clause requires excluding- the out-of-court statements of a witness who is available and testifying at trial. The concern of most of our cases has been focused on precisely the opposite situation-situations where statements have been admitted in the absence of the declarant and without any chance to cross-examine him at trial.
Green,
. Although the dissent claims that these cases are distinguishable, the factual dissimilarities highlighted by the dissent do nothing to undermine the underlying rationale that the federal confrontation clause is not concerned with the admission of out-of-court statements where the declarant appears and is cross-examined about those statements at trial.
. We acknowledge the dissent’s view that Fields’ opportunity to cross-examine Staggs was insufficient. However, on the record before us, we simply and respectfully disagree.
. In such situations, as is the case here, the dispositive question becomes whether the witness can nevertheless recall the subject matter of the statement, notwithstanding the loss of memory as to the statement itself. If the accused has the opportunity to elicit the witness’ testimony as to the subject matter of the statement on cross-examination at trial, the accused's right of confrontation has been satisfied.
. We note that the "unavailability" paradigm embedded within this jurisdiction's version of the Crawford analysis, as with this jurisdiction’s version of the Roberts analysis, must be interpreted to include a witness’ lack of memory, pursuant to the greater protection afforded by the Hawaii Constitution as recognized by this court in Sua.
. Richards' statement, "Reggie, get off her[,]” is clearly nontestimonial, and, thus, its admissibility under the confrontation clause of the Hawaii Constitution is governed by the Roberts test. See Medina v. State,
. Although the ICA did not expressly state that Fields waived his argument by failing to assert it in his opening brief, we presume that its silence so indicates, inasmuch as (1) Fields concedes that he did not challenge the admission of Richards' hearsay statement in his opening brief, (2) Fields raised the argument for the first time in his supplemental appellate brief, and (3) the ICA completely ignored the argument.
. The dissent cites State v. Poaipuni,
. We note that Wallace requires that each "material element of the offense [be] supported by substantial and admissible evidence .... ” 80 Hawaiì at 413,
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
In his Application for Writ of Certiorari Petitioner/Defendant-Appellant Reginald Fields (Petitioner or Fields) contends that the Intermediate Court of Appeals (the ICA) gravely erred (1) by failing to find that the admission of the hearsay statements of Melinda Staggs (Staggs) and Dave Richards (Richards) did not violate the confrontation clause of the Hawai'i Constitution, (2) by declining to find plain error and in abdicating judicial review in favor of a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 Petition, and (3) by not vacating Petitioner’s conviction for insufficient evidence, because only evidence that is “substantial” and “admissible” can support a conviction.
In my view, Petitioner raises meritorious claims as to issues (2) and (3) that are preeminent and dispositive because under the Hawai'i Rules of Evidence (HRE), Staggs’ hearsay statement was not admissible in evidence. Thus, issue (1) need not be reached. Consequently, the October 11, 2002 judgment of the family court of the fifth circuit (the court), convicting Petitioner of abuse of a family or household member, must be reversed. Assuming arguendo issue (1) must be reached, I believe the majority’s analysis regarding the Hawai'i Constitution’s confrontation clause is faulty.
1.
Staggs’ out-of-court statement as related in the testimony of Officer Elliot Ke (Officer Ke) should not have been admitted in evidence because it was hearsay and did not qualify as an exception to the hearsay rule. Admission of such evidence under the circumstances of this case constituted plain error. Although the majority fails to decide it, this proposition is dispositive of Petitioner’s writ application.
A.
1.
“Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ HRE 801(3) (1985).... Hearsay is inadmissible at trial, unless it qualifies as an exception to the rule against hearsay.” State v. Sua,
2.
Staggs’ statement does not fall under any exception to the hearsay rule. The question of whether the statement fell within any exception does not appear to have been joined by the parties at trial. However, Petitioner declares that the “questioning of Staggs [by Respondent/Plaintiff-Appellee State of Ha-wai'i (Respondent) ] ... suggests that it sought to admit her purported statement to Officer Ke under HRE Rule 802.1 [ (1993) ].” HRE Rule 802.1
B.
The statement that Officer Ke attributed to Staggs did not meet any of the requirements under HRE Rule 802.1. First, it was inadmissible because Staggs was not subject to cross-examination concerning the subject matter of her reputed prior statement. See State v. Canady,
Staggs, like the complainant in Canady, “could not recall the events that she allegedly described” in her prior statement.
II.
In its Answering Brief, Respondent does not dispute that Staggs’ statement was not admissible under HRE Rule 802.1. Instead, Respondent argues that “the [court] did not abuse its discretion in accepting [Staggs’] statement to Officer Ke into evidence” under HRE Rule 804(b)(8) (1993 & Supp.2005)
III.
On September 14, 2004, the ICA ordered the parties to submit supplemental briefing regarding the impact of Crawford,
In response to Respondent’s Answering Brief, Petitioner argued, “to the extent that [Respondent] relies, in its answering brief, on the so-called ‘residual’ hearsay exception set forth in [HRE] Rule 804(b)(8), ... even if Staggs’ ... statements are deemed to fall within HRE Rule 804(b)(8), that does not satisfy the requirement that they fall within a ‘firmly rooted’ hearsay exception.”
On the other hand, Respondent, in its Supplemental Answering Brief, argues as pertinent here, that under HRE Rule 803(b)(2) (1993 & Supp.2005),
Moreover, because the ICA limited the scope of the supplemental briefing to the applicability of Crawford and Haiti, Respondent’s discussion regarding an excited utterance exception exceeded the scope of the ICA’s order. Respondent’s argument thus is foreclosed because it would be unfair to address it in light of Petitioner’s reliance on Respondent’s position in its Answering Brief that Staggs’ hearsay statement was admissible under the catchall provision of HRE 804(b)(8). See, e.g., Tauese v. State Dept. of Labor & Indus. Relations,
Finally, the ICA also apparently did not consider Respondent’s belated excited utterance exception argument. Respondent did not apply for a writ of certiorari as to that contention and so it must be deemed waived for purposes of our review.
IV.
In sum, Staggs’ hearsay statement did not qualify for admission as an exception to the hearsay rule under HRE Rule 802.1, HRE Rule 804(b)(8), or HRE Rule 803(b)(2). Thus, Staggs’ hearsay statement was not admissible. I believe the ICA was correct, then, insofar as it also concluded that Staggs’ statement was hearsay, the statement did not qualify for admission under any hearsay exception, and had an objection been made, “the objection ... could not have been validly denied.”
Officer Ke’s testimony, repeating what [Staggs] said, is hearsay under HRE Rule 801 (Supp.2003). According to HRE Rule 801(a)(3) [(1993 & Supp.2005)], [Staggs] was unavailable to testify. Thus, the question is whether [Staggs’] statement is admissible under one of the exceptions listed in HRE Rule 804(b). The only possibility is HRE Rule 804(b)(8), and [Staggs’] statement is not admissible under it because (a) the record does not show that [Respondent] complied with the notice requirements of HRE Rule 801, and (b) [Staggs’] statement lacks the required “equivalent circumstantial guarantees of trustworthiness.” Therefore, if counsel for [Petitioner] had objected to the introduction of [Staggs’] prior testimonial statement into evidence on the ground that it violated the HRE, the objection would have had merit and could not have been validly denied.
State v. Fields, No. 25455, at —, — P.3d at -,
The ICA went on to discuss Crawford because it believed Petitioner’s failure to object
V.
Because Fields did not object at trial to the admission of Staggs’ statement, it is subject only to a review for plain error. In Fields’ application for certiorari, he directly raises the issue of whether “[t]he ICA gravely erred in declining to find plain error and abdicating judicial review in favor of a Rule 40 petition” and that “appellate courts in this jurisdiction have found plain error and reversed convictions for the erroneous admission of evidence despite the lack of an objection.” (Citing State v. Fox,
So, although not objected to, the admission of Staggs’ hearsay testimony at trial should have been noticed as plain error by the ICA as Fields argues in his application. See State v. Nichols,
VI.
The majority focuses its discussion of plain error on whether Fields explicitly raised the right to a fair trial. See, e.g., majority opinion at 528,
Additionally, while an application for cer-tiorari must addi-ess “(1) grave errors of law or of fact, or (2) obvious inconsistencies in the decision of the [ICA] with that of the supreme court, federal decisions, or its own decision and the magnitude of such errors or inconsistencies dictating the need for further appeal,” Hawaii Revised Statutes (HRS) § 602-59(b) (Supp.2006), items (1) and (2) are not limitations on this court’s discretion to take certiorari. See State v. Chong,
Moreover, even if Fields had failed to raise these issues in his certiorari application, the majority itself notes that it is “cognizant of our inherent power to notice plain
VII.
This court has recognized plain error where the admission of inadmissible hearsay evidence violates the defendant’s right to a fair trial.
Similarly, the statement at issue in the instant case “was not harmless.”
Similar to the case in Pastushin, it was Staggs’ “statement, more than any other evidence ... which established” Fields’ abuse conviction.
VIII.
A.
With all due respect, in its most fundamental error, the ICA rested its rejection of plain error application on “the trial court’s duty, if any, to control the admission of hearsay testimony into evidence, in the absence of an objection by defendant’s trial counsel.’’ Fields, at -, — P.3d at -,
In doing so it wrongly proposes that because there was no objection, the court violated no duty and the violation of such a duty is the prerequisite for finding plain error. Under this incorrect reasoning the entire concept of plain error as established under HRPP Rule 52 would be abrogated. For it is the very fact that defense counsel did not object that invokes the plain error rule. If the governing principle, as the ICA posits, is that counsel should have made an objection, the plain error rule obviously would be nullified. This proposition is flawed and contravenes applicable case law. See e.g., Sanchez,
B.
Secondly, the ICA and the majority assert, “[t]his court’s power to deal with plain error is one to be exercised sparingly and with caution because the ... rule represents a departure from ... the adversary system[.]” Fields, at -, - P.3d at -,
Indeed courts of this jurisdiction have found plain error in numerous eases in which defense counsel failed to object to the admission of evidence. See e.g., Pastushin,
C.
The ICA’s third consideration was that “ ‘[m]atters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.’ ” Fields, at -, — P.3d at -,
In Richie, this court considered the defendant’s argument that defense counsel erred in not calling four witnesses at trial.
However, any supposed strategy or tactical decision on the part of defense counsel would not excuse the failure to object to Staggs’ hearsay statement admitted via Officer Ke’s testimony. See id. at 40,
The majority fails to advance any legitimate tactical reasons for why an objection would not be made to Staggs’ hearsay statement. Indeed, counsel for Petitioner was also trial and appellate counsel. In raising plain error counsel has in effect conceded that failure to make the objection prejudiced Fields—an implicit concession that no strategic reason existed for the failure to object. Inasmuch as no rational basis exists to support the view that the failure to object was a matter of trial strategy but, rather, was an omission that affected Petitioner’s substantial rights, plain error must be recognized.
IX.
The ICA’s fourth consideration indicated that “[wjhen defendant’s trial counsel does not exercise his right to object to inadmissible hearsay evidence offered by the prosecution, and the record is unclear or void as to the basis for counsel’s actions or inactions, counsel shall be given the opportunity to explain his or her actions or inactions in an appropriate proceeding before the trial court judge” and that “such an opportunity to explain is best provided in a post-conviction proceeding initiated by the defendant, pursuant to HRPP Rule 40[.]” Fields, at -, — P.3d at -,
It bears repeating that in rejecting the application of plain error, the ICA fundamentally misapplied the plain error doctrine by requiring as a prerequisite thereto that counsel object to the inadmissible evidence. See discussion supra. Accordingly, the ICA’s conclusion that a HRPP Rule 40 proceeding is the “best” alternative to applying plain error is inherently wrong. Predictably this contention is not supported by any authority and is contrary to this court’s precedent. See State v. Silva,
However, HRPP Rule 40(a) plainly states that a post-conviction proceeding “shall not be construed to limit the availability ofrem-edies[(i.e., the recognition of plain error),] ... on direct appeal."
X.
To be clear, the plain error that this court should recognize was the admission of the inadmissible hearsay statement Officer Ke attributed to Staggs which was, as noted supra, the only evidence that identified Fields as having abused Staggs. Fields, at -, - P.3d at -,
XI.
The majority opines that “Fields retains the ability to vindicate his rights by filing a petition, pursuant to HRPP Rule 40, asserting a claim of ineffective assistance of counsel.” Majority opinion at 529,
Additionally, to reiterate, a HRPP Rule 40 proceeding is unnecessary because the lack of any strategic reason for not objecting has in effect been conceded by defense counsel on appeal and no obvious tactical advantage appears for failing to object. See Poaipuni,
XII.
Moreover, even if the express language of Rule 40 is incorrectly ignored by the ICA and the majority, the fact that Fields may have an opportunity to argue ineffective assistance of counsel in a subsequent HRPP Rule 40 petition does not cure the fact that error has already occurred and Petitioner’s substantial rights have been adversely affected. See HRPP Rule 52(b). The availability of a separate proceeding in which to challenge a conviction on a confirmed error does not justify declining to recognize plain error noiv. In fact, the ICA and the majority do not cite to any authority as to this point. For as this court has repeatedly recognized, “the decision to take notice of plain error” rests on “errors that ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ ” Fox,
XIII.
Assuming, arguendo, that an issue exists as to ineffective assistance of counsel, as the majority and ICA insist, Silva governs. In Silva, this court rejected the proposition proffered by the prosecution that “a criminal defendant may not assert ineffective assistance of counsel for the first time on appeal” and that “the question of ineffective assistance of counsel requires an independent hearing” through the vehicle of a HRPP Rule 40 proceeding.
Accordingly, in that case, this court rejected the prosecution’s view that “a convicted defendant could either (l)allow the time for appeal to run and forgo all other appealable claims, if any, before filing a [HRPP] Rule 40 petition, or (2)appeal all issues, except for the ineffective assistance of counsel claim, then bring a [HRPP] Rule 40 petition when the appeal process is terminated.” Id. The second prosecution option rejected in Silva is apparently resurrected by the ICA and the majority.
With respect to that option, Silva said that “requiring a defendant to wait until the appeal process is completed before raising a [HRPP] Rule JpO ineffective assistance claim would result in a waste of attorneys’ fees and costs as well as an unnecessary expenditure of our limited judicial resources[.]” Id. (emphasis added). Silva explained that “under the prosecution’s suggested general rule, a defendant’s post-conviction claims would always be divided.” Id. at 437-38,
Turning again to the facts of this case, it must be observed that “[t]o prevail on [an] ineffective assistance of counsel claim, [a defendant] must establish that his ‘trial counsel’s performance was not objectively reasonable—i.e., that it was not within the range of competence demanded of attorneys in criminal cases.’ ” Poaipuni,
XIV.
Further, as noted supra, it was the ICA and the majority affirming it, that invite an ineffective assistance claim. If, as the ICA and majority maintain'—there is a claim for ineffective, assistance of counsel—Silva and Poaipuni control because there is no trial strategy that would merit the admission of Staggs’ statement as the ICA itself noted, the defense itself has acknowledged that the statement was inadmissible hearsay, stating expressly that “the family court relied upon inadmissible hearsay[,]”; the existence of such an error or omission has already been decided by the ICA, see Fields, at -, -, - P.3d at -, -,
XV.
Also, the ICA and the majority mistakenly assume that defense counsel is required to have an opportunity to explain its failure to object. See Fields, at -, — P.3d at -,
As discussed supra, in light of the ICA’s position and Petitioner’s briefs, “the record on appeal is sufficiently developed to establish that ‘there were no legitimate ‘tactical’ bases upon which defense counsel’s omissions could conceivably have been predicated.’” Poaipuni,
But most significantly, allowing Petitioner to contest his trial counsel’s failure to object in a subsequent HRPP Rule 40 petition, majority opinion at 529,
XVI.
Thus, it is difficult to comprehend the majority’s position inasmuch as it appears to agree there was error in admitting Staggs’ hearsay statement, see, e.g., majority opinion at 529 n.17,
XVII.
Certainly, the ICA’s and majority’s positions are particularly egregious in this case. The record indicates that on October 11, 2002, Petitioner was sentenced to a term of two year-s probation, and two days in prison with credit for time served.
Obviously, a HRPP Rule 40 proceeding would needlessly prolong the length of court proceedings. Following judgment entered by this court the steps to begin the new proceeding would have to be taken. Petitioner was represented by the public defender at the court and on appeal to the ICA, as well as on certiorari to this court. Under the majority disposition a new attorney would have to be found and appointed because of a conflict within the public defender’s office brought about by the ineffective assistance comments by both the ICA and the majority. After new counsel is appointed, he or she would have to become familiar with the facts of this case and the proceedings that have transpired over the past five years.
Then the new attorney would be required to institute a proceeding for post-conviction relief “by filing a petition with the clerk of the court in which the conviction took place.” HRPP Rule 40(b). The State of Hawaii would be named as the respondent and would have 30 days to “answer or otherwise plead[.]” HRPP Rule 40(d). As the case is cast by the ICA and majority, a hearing would be necessary to receive the testimony of trial counsel on the ineffective assistance claim. Following the hearing the court will have to “state its findings of fact and conclusions of law[,]” HRPP Rule 40(g)(3), and render a judgment on the petition.
After the judgment is rendered, the parties are afforded an appeal “in accordance with Rule 4(b) of the Hawaii Rules of Appellate Procedure.” HRPP Rule 40(h). If an appeal is taken, the case will proceed again through the entire process and could plausibly end up once more before this court for review upon a certiorari application. Plainly, as in Silva, a HRPP Rule 40 proceeding would “serve no purpose except to delay the inevitable” and would “result in a waste of attorney’s fees and costs as well as an unnecessary expenditure of our limited judicial resources[.]” Silva,
XVIII.
In this instance, the majority “standfs] idly by though clear’ error affecting substantial rights of the defendant was committed. Under the circumstances, an invocation of the plain error rule would be the better part of discretion.” Fox, 70 Haw. at 56,
In sum, this case should be disposed of on the foregoing analysis. However, inasmuch as the majority discusses the confrontation clause, I join that discussion and would hold that there was a violation of Petitioner’s confrontation rights. I respectfully disagree with the majority because (1) the majority relies on case law that treats a witness as “available” even if that witness cannot remember the events described in the hearsay statement sought to be introduced, (2) under Hawai'i case law a witness’ inability to recall events described in the hearsay statement renders the witness “unavailable” and the statement inadmissible, (3) the majority’s approach thus conflicts with Hawai'i case law, (4) the majority’s retention of the proposition stated in (2) in “non-testimonial” cases but not in “testimonial” cases undermines the twin objectives of maintaining “the integrity of the fact finding process” and “ensuring] fairness to defendants[,]” Sua II,
XX.
Some examination of the evolution of our confrontation case law and of Crawford is necessary. The Sixth Amendment Confrontation Clause requires that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The text of article I, section 14 of the Hawai'i Constitution is nearly identical to the Sixth Amendment Clause. In relevant part, article I, section 14 provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused[.]”
Our own confrontation clause jurisprudence, prior to the instant case, stemmed from the analysis in Ohio v. Roberts,
In Sua I, the ICA adopted the approach by the Supreme Court with respect to what in effect were “testimonial” statements as later defined in Crawford.
The historical evidence leaves little doubt ... that the Clause was intended to exclude some hearsay. See California v. Green, 399 U.S. [149,] 156-57, and nn. 9 and 10 [90 S.Ct. 1930 (1970) ]; see also [E. Cleary,] McCormick [on Evidence] § 252, p. 606 [ (2d ed.1972) ]. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that “a primary interest secured by [the provision] is the right of cross-examination.” Douglas v. Alabama,380 U.S. 415 , 418,85 S.Ct. 1074 ,13 L.Ed.2d 934 (1965)....
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These means of testing accuracy are so important that the absence of proper confrontation at trial “calls into question the ultimate ‘integrity of the fact-finding process.’ ” Chambers v. Mississippi,410 U.S. 284 , 295 [93 S.Ct. 1038 ,35 L.Ed.2d 297 ] (1973) (quoting Berger v. California,393 U.S. 314 , 315 [89 S.Ct. 540 ,21 L.Ed.2d 508 ] (1969)).
Id. at 86,
This court applied Hawaii’s adaptation of Roberts in Sua II.
After more than two decades of applying its Roberts test, the Supreme Court in Crawford stated that the rationales for admitting hearsay evidence under Roberts had not “generally been faithful to the original meaning of the Confrontation Clause.”
Relying on Mattox, as had Sua I,
[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particidarly its use of ex parte examinations as evidence against the accused. ...
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The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination....
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Our later cases conform to Mattox’s holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine.
Id. at 50, 53-54, 57,
It was explained that the federal Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 61,
In footnote nine, the Court made apparent that when it spoke of unavailability it meant the physical absence of the witness from trial: “[W]e reiterate that, when the declar-ant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id. at 59 n. 9,
XXI.
In the instant ease it is not disputed that Staggs’ hearsay statement in and of itself would be considered “testimonial” under the second aspect of Crawford identified above. Instead, disagreement with the majority rests on the unavailability requirement, the first aspect of the Crawford rule. The majority adopts the federal view of witness unavailability as described by footnote nine in Crawford.
XXII.
A.
First, the majority relies incorrectly on case law which treats a witness as available for confrontation purposes even as to hearsay matters the witness cannot remember. The majority imposes the view of footnote nine upon the Hawai'i confrontation clause with respect to testimonial statements.
The point here is that the protections guaranteed by Hawaii’s confrontation clause have been fully afforded to an accused where the hearsay declarant attends trial and is cross-examined about the prior hearsay statement. The explicit right conferred by both the state and federal confrontation clauses is the right to “confront adverse witnesses.”
Majority opinion at 524,
Addressing the underlying premise of footnote nine, it is arguable that a witness who is present to testify but cannot recall the hearsay statement in issue can, in any meaningful way, “defend it,” much less “explain it.” See supra note 22. In this case Staggs was not able to “defend” her hearsay statement or “explain it,” because she did not remember it. See discussion infra. The question is not whether a defendant is guaranteed a “successful cross-examination,” Sua II,
B.
The majority also cites to several state cases interpreting Crawford in support of the proposition that “the federal confrontation clause is not concerned with the admission of an out-of-court statement where the declar-ant appears at trial and is cross-examined.” Majority opinion at 517,
This case is concerned with the federal clause only to the extent that it establishes a minimal requirement our own confrontation clause may not breach. Consequently, because of our broader construction, whether or not the federal confrontation clause merely requires “the declarant appear[ ] and [be] cross-examined about [his] statements at trial[,]” Crawford,
In essence, the broader protection afforded by the Hawai'i Constitution
The majority acknowledges that “we may, under the Hawaii Constitution give broader protection than that afforded by the United States Constitution” but contends “that maxim does not justify the construction of constitutional barriers where none are appropriate.” Majority opinion at 517 n.9,
A.
As noted before, this court has said that cross-examination is at the heart of the right of confrontation:
The right of confrontation affords the accused both the opportunity to challenge the credibility and veracity of the prosecution’s witnesses and an occasion for the jury to weigh the demeanor of those witnesses. ... Thus, chief among the interests secured by the confrontation clause is the right to cross-examine one’s accuser.
Sua II,
[T]he confrontation clause restricts the range of admissible hearsay in two ways. First, the prosecution must either produce, or demonstrate the unavailability of, a declarant whose statement it wishes to use against a defendant. Second, upon a showing that the witness is unavailable, only statements that bear adequate indicia of reliability are admissible.
Id. at 71,
[A]s to the rule of necessity, the Hawaii Supreme Court has “parted ways with the United States Supreme Court which after [Roberts,] has held that the sixth amendment confrontation clause does not necessitate a showing of unavailability for evidence falling within certain hearsay exceptions.” [McGriff], 76 Hawai'i [at] 156, 871 P.2d [at] 790 (citing United States v. Inadi,475 U.S. 387 ,106 S.Ct. 1121 ,89 L.Ed.2d 390 (1986) (statements of a non-testifying co-conspirator may be introduced against the defendant regardless of the declarant’s unavailability at trial); White v. Illinois,502 U.S. 346 ,112 S.Ct. 736 ,116 L.Ed.2d 848 (1992) (unavailability not required for excited utterance exception)).
Sua I,
B.
Under this paradigm, to the extent that a witness cannot remember her statement, she must be considered unavailable, at least with respect to the subject of such statement. Manifestly Staggs’ mere presence at trial as a witness would not enable Petitioner to cross examine her about the hearsay statement admitted through Officer Ke. Consequently, there was no opportunity for Petitioner to challenge the assertions in that statement by cross-examination.
Thus, “the primary object of the constitutional [confrontation] provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him or her, and judge by his or her demeanor upon the stand and the manner in which he or she gives his or her testimony whether he or she is worthy of belief”
State v. Faafiti,54 Haw. 637 , 640-41,513 P.2d 697 , 700 (1973) (quoting Mattox[,156 U.S. at 242-43 ,15 S.Ct. 337 ] (emphases added) (brackets omitted)).
Sua I,
XXIV.
Throughout its opinion, the majority repeatedly attempts to draw a supposed distinction between the “semantic statement ‘available for cross-examination’” (emphasis added) and the “constitutionally infused statement ‘available as a witness for the prosecution.’ ” See, e.g., majority opinion at 526,
Further, it is curious that the majority proposes that whether a witness is “available for cross-examination” is not a matter of constitutional importance, in that we have said cross-examination is the defendant’s primary means of confronting the witnesses against him. See e.g. id. at 180,
In this regard, and with all due respect, the majority engages in linguistic gymnastics in an effort to revise Sua II. The majority contends that “Sua [II] is consistent with that distinction, holding, inter alia, that (1) Gooman was constitutionally ‘unavailable’ as a witness for the prosecution by virtue of his loss of memory, and (2) Gooman was nevertheless semantically available for cross-examination by virtue of his physical presence at trial,” majority opinion at 526,
XXV.
In attempting to refute the import of Sua II, the majority purports to rely on the following passage from that case:
Similarly, in the present matter, Gooman made assertions before the grand jury and later claimed a loss of memory at trial. Sua was provided with the opportunity to cross-examine Gooman regarding his loss of memory. Inasmuch as Gooman’s grand jury testimony met both requirements of the Roberts test, and Sua was able to cross examine Gooman for his failure to remember the alleged incident, we cannot say that the admission of Gooman’s grand jury testimony violated Sua’s right to confrontation.
A.
First, this quote from Stla II had nothing to do with the unavailability requirement, but with the second prong of “reliability.” Indeed, this court found that Gooman, although present at trial, was unavailable for confrontation purposes as to his grand jury testimony because of his lack of memory.
The first prong of the Roberts test was satisfied in the present case. Although he was present at trial, Gooman was unable to recollect any substantive elements of his grand jury testimony and, therefore, was “unavailable" by virtue of his loss of memory. See Apilando,79 Hawai'i at 137 ,900 P.2d at 144 .
Sua II,
Upon demonstrating that a witness is unavailable, under the second half of the Roberts test, only statements that bear “adequate indicia of reliability” may be admitted into evidence. “Reliability” may be shown in two ways. First, reliability may be inferred without more if it falls within a firmly rooted hearsay exception ....
Alternatively, reliability may be demonstrated upon a showing of particularized guarantees of trustworthiness.
Id. at 71,
The second prong of the Roberts analysis, once unavailability has been demonstrated, focuses upon the reliability of the witness’ statement. Inasmuch as Gooman’s grand jury testimony falls within a “firmly rooted hearsay exception,” as “past recollection recorded,” and therefore bears an adequate indicia of reliability, see Ortiz,74 Haw. at 361 ,845 P.2d at 556 , the testimony should satisfy the confrontation clause.
Id. at 73,
Thus, in Sua II, as noted supra, this court “resolutely]” reaffirmed the unavailability prong as encompassing memory loss and held that Gooman’s grand jury testimony was admissible because it “met both requirements of the Roberts test, and[,]” in addition, in applying a second but unnecessary reliability test, stated that Sua had the opportunity to cross-examine Gooman on his failure to remember the grand jury transcript. Id. at 75,
Under this court’s construction of Roberts, “unavailability” includes loss of memory.
B.
1.
Second, to construe Sua’s opportunity “to cross examine Gooman regarding his failure to remember,” id. at 75,
2.
The majority opines that “[t]o interpret the conclusion that Sua was able to cross-examine Gooman regarding his failure to remember the alleged incident as a mere ‘circumstantial fact,’ ... ignores Sua’s citation of [United States v. ]Carey, [
Thus, the majority appears to assert that if neither of the prongs of the Roberts test were met in Sua II, the testimony would nevertheless be admissible on the grounds that there was a purported “sufficient opportunity to cross-examine.” Majority opinion at 525,
The majority further cites the proposition that a “forgetful declarant [is] ... available for cross examination.” Majority opinion at 526,
In sum, to preserve the integrity of the holding in Sua II, the unavailability analysis must necessarily rest on the proposition that, while Gooman was physically “available” because he was present at trial, he was nevertheless “unavailable” for purposes of admitting his forgotten grand jury testimony. Otherwise, the first factor referred to—unavailability under the Roberts test—could not have been satisfied. Read correctly and in context, then, the statement in Sua II that “Sua was provided with an opportunity to cross examine Gooman regarding his failure to remember[,]”
XXVI.
The infirmity of the majority’s reading of Sua II is expanded by the inconsistency in the majority’s decision to apply the federal version of unavailability in testimonial statements, but apparently to retain Sua II’s Roberts test of unavailability with respect to non-testimonial statements.- As was the case with our approach post-Roberts, this court is not required to adhere to the U.S. Supreme Court’s view of unavailability set forth in Crawford. Sua II,
As mentioned, the majority adopts the Roberts test in “nontestimonial” situations. Majority opinion at 527,
The Court noted in Crawford that “[t]he constitutional text, like the history underlying the common-law right of confrontation, ... reflects an especially acute concern with a specific type of out-of-court statement [ (testimonial statements) ].”
XXVII.
In opposition to the foregoing, the majority baldly contends that “the ‘unavailability’ paradigm is retained in both testimonial and nontestimonial situations, and [that] the result achieved is not anomalous.” Majority opinion at 527,
For “unavailability” under Crawford does not apply at all if the witness is present for examination, as the majority itself asserts, see majority opinion at 517-18,
At its core, then, the “result achieved” by the majority, majority opinion at 528,
XXVIII.
It must be emphasized that Staggs’ hearsay statement was used as substantive evidence by Respondent. Our cases have recognized that mere presence and amenability to cross-examination in the context of a witness’ memory loss would not satisfy confrontation interests with respect to admission of hearsay as substantive evidence. See Eastman and Clark, supra, and infra. This is consistent with the rationale in Sua II. Thus, in his opening brief, Petitioner “urges this court to reach the same conclusion as did the Canady court: that the complainant’s alleged prior statement was not admissible because she could not be subjected to cross
In Canady, the ICA noted that the drafters of the HRE had rejected the Owens approach embraced by the majority in the instant case. An issue in Canady was whether a prior inconsistent hearsay statement was admissible as substantive evidence under the precondition in HRE Rule 802.1 that “the declarant is subject to cross-examination concerning the subject matter of the [declarant’s] statement.”
The Court reasoned that, under a “natural reading” of the phrase “subject to cross-examination concerning the statement” in FRE Ride 801(d)(1), all that is required is that the witness “is placed on the stand, under oath, and responds willingly to questions, ” even if the witness was unable to testify about any of the events set forth in the prior statement. [Owens, 484 U.S.] at 561,108 S.Ct. at 844 .
Id. (citing FRE Rule 801(d) (emphasis added) (brackets and internal quotations omitted)). The court however, compared the language of FRE Rule 801(d)(1) to FRE Rule 804(a)(3) “which defined an unavailable witness as a person who ‘testifies to a lack of memory of the subject matter of the declar-ant’s statement^]’ ” id. at 479,
In Canady the ICA noted that HRE Rule 804(a)(3) employs the same “subject matter” language, stating that:
HRE Rule 804 provides:
Rule 804. Hearsay exceptions; de-clarant unavailable, (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declar-ant:
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(3) Testifies to a lack- of memory of the subject matter of the declar-ant’s statement.
The commentary to HRE Rule 802.1 explains that under the common law, prior inconsistent statements were considered hearsay and could not be used to impeach a witness. Commentary to HRE Rule 802.1 (1993). The FRE modified the common-law rule and allowed prior inconsistent statements to be used as substantive proof of the matters asserted in the statement, if the statement was “ ‘given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.’ ” Id. (quoting FRE Rule 801(d)(1)(A)). HRE Rule 802.1 adopted this federal exception to the common law, and went further by adding two more exceptions to the hearsay objection for signed or adopted statements and recorded statements. Id.
Id. at 480,
Sua II corroborated this precept.
Sua relies on [Canady ] for the assertion that “a witness that is unable to recall the events allegedly described in the prior statement does not satisfy the requirements of HRE Rule 802.1[,] and therefore the prior statement would not be admissible.” In Canady, the complaining witness “testified that she could not recall the events that she allegedly described in the statement.”80 Hawai'i at 481 ,911 P.2d at 116 . In the present matter, [the witnesses,] Kaowili and Puahi[] denied ever having made the relevant statements to the detective. Therefore, unlike the witness in Canady, who was rendered “unavailable"by virtue of her memory loss, Kaowili and Puahi were both “available” for cross-examination. Accordingly, while we agree with Sua’s reading of Canady, it is inappo-site to the present matter.
In Eastman, this court held that the complainant’s prior inconsistent statement contained in a “Victim’s Voluntary Statement Form” (WSF) which she gave to a police officer “met all the requirements under HRE Rule 802.1(1)(B) for admissibility as substantive evidence of [the defendant’s] guilt.”
Subsequently in Clark, this court reaffirmed that the justification for allowing the use of hearsay statements as substantive evidence was the opponent’s ability to cross-examine the witness about the events contained in the hearsay statement, citing Eastman.
In Clark it was ultimately held that the declarant’s “cross-examination satisfied constitutional and trustworthiness concerns over admitting into evidence her prior inconsistent statements to [the detective] because it afforded [the defendant] the opportunity to have [the declarant] fully explain to the trier of fact why her in-court and out-of-court statements were inconsistent, which, in turn, enabled the trier of fact to determine where the truth lay." Id. (citing Eastman,
Our jurisprudence has confirmed on evi-dentiary and constitutional grounds, the proposition that a witness who cannot recall the events related in the hearsay statement is to that extent not subject to cross-examination so as to allow the “trier of fact ... to determine[ ] where the truth lies.” Sua II,
XXIX.
A review of the transcribed proceeding is necessary to properly assess the majority’s contrary assertion that a “meaningful opportunity to cross-examine,” majority opinion at 524,
Regarding the events of April 13, 2002, Officer Ke testified that Staggs recounted the following:
She said she and Reggie got into a argument. Reggie was upset. I guess her mom brought some friends over earlier in the evening and the police had to come by. They were upset so they were arguing. And she said she was laying down on the couch watching TV, and I guess Reggie came up behind her and started holding her down, pressing her neck with both of his hands, like, kind of holding her down on the couch. And then she also said he punched her in the face, left side of her face.
When Staggs testified on direct, she claimed a loss of memory as to all relevant questions pertaining to the events in the hearsay statement:
Q. Do you know Reginald Fields?
A. Yes.
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Q. Can you describe your relationship with Mr. Fields?
A. He’s my boyfriend.
Q. And on April 13 were you living together?
A. Yes.
Q. The night of April 13th where were you?
A I can’t recollect, actually.
Q. Do you recall an evening where Reggie got arrested?
A. No.
Q. How long have you and Reggie been together?
A. We’ve been friends for at least four years.
Q. And are you still boyfriend/girlfriend?
A. We’re still friends.
Q. Are you still living at the same place
A. No.
Q And you don’t recall an incident that happened back in April where the police came over two times?
A. I have a hard time remembering
Q. So if something had happened back in April, your memory would have been better back then than today?
A. Not necessarily.
Q. Do you recall talking to a police officer on April 13th just before midnight at where you were living?
A. No
Q. Do you recall a police officer asking you what had happened?
A. (No audible response.)
Q. Do you recall telling a police officer that on April 13th around 11:4.0 you and your boyfriend got into an argument?
A. No, I don’t remember.
Q. Do you recall tellmg a police officer that you were lying chest down on the sofa in your living room?
A. No, I don’t remember that.
Q. Do you recall telling a police officer that Reggie came in behind you and started to push down your neck with both of his hands?
A. No.
Q. Do you recall telling a police officer that this caused pain to your neck?
A. Nope.
Q. Do you recall telling a police officer that you could not breathe while he was holding you down?
A. No, I don’t recall that.
Q. Do you recall—telling a police officer that Reggie punched you once in the face causing pain to your face?
A. No audible response.
(Emphases added.) On cross-examination, Staggs confirmed her lack of memory as to the charged event.
Q. Do you recall, Ms. Staggs, on this particular night, April 13th we’re talking, David Richards being present?
A. I believe—yes, I believe he was
Q. You know who David Richards is then?
A. Yes.
Q. Who is David Richards?
A. A friend of mine.
Q. Friend of yours. Okay. And do you recall whether on this night you were drinking anything?
A. Yes, I was.
Q. What were you drinking?
A. Beer.
Q. Okay. Did you have a lot to drink?
A. Yes.
Q. Is that perhaps why you have no recollection?
A. Perhaps.
Q. Do you—do you under—do you recall, perhaps, any incident involving Mr. Fields’ surfboards—board?
A. Um-hmm.
And might that involve a threat to Mr. Fields that if he left that you were going to break his surfboard? O’
I think that may have occurred. <S
Okay. Do you recall laying on his board in such a way, I guess maybe it was between the table and the chair, and then threatening to sit on it that—something like that? <o
Yeah, I do remember that. i>
Okay. Do you recall perhaps Mr. Richards trying to hold your wrists to keep you from slapping him, et cetera? Do you recall that at all? <©
No, I don’t remember that.
(Emphasis added.) From the foregoing it is a mischaraeterization of Staggs’ testimony to claim that “she willingly and informatively responded to virtually all of the questions posed by [Petitioner’s] counsel.” Majority opinion at 523,
Nothing in Staggs’ testimony, either on direct or cross-examination, corresponds to Officer Ke’s testimony about Staggs’ accusatory hearsay statement. The actual record controverts the majority assertion that “[t]he point here is that the protections guaranteed by Hawaii’s confrontation clause have been fully afforded to an accused where the hearsay declarant attends trial and is cross-examined about the prior hearsay statement.” Majority opinion, at 524,
Therefore, in ruling that the admission of Staggs’ hearsay statement did not violate Hawaii’s confrontation clause, the majority strips any significance from the phrase “meaningful opportunity to cross-examine.” Staggs claimed memory loss as to every
XXX.
The majority also maintains that “given the foregoing, we do not think Fields’ opportunity for cross-examination was insufficient” because
[t]he trier of fact was provided with adequate information to test the credibility and veracity of Staggs’ prior statement insofar as it could have reasonably inferred that (1) Staggs’ drunken state rendered her prior statement inaccurate or unreliable, and/or (2) Staggs was not an innocent victim but an aggressive participant in the incident who, while angry at Fields, gave a false statement to the police.
Majority opinion at 523-24,
Assuming, arguendo, their relevance, the theories the majority proposes, with all due respect, rest at best on gross speculation.
XXXI.
Second, and significantly, as before noted, Staggs’ alleged statement was admitted as substantive evidence and not for impeachment purposes. The effect, even if not recognized or acknowledged by the majority, is that its decision means that hearsay statements are admissible as substantive evidence even if the declarant cannot be eross-exam-ined
FRE Rule 804(a)(3) provides that a witness who testifies to a lack of memory of the subject matter of his or her statement is unavailable. A witness may either truly lack recollection or for a variety of reasons, including concern of a possible perjury prosecution, feign lack of recollection. In either event, the witness is unavailable to the extent that he or she asserts lack of recollection of the subject matter of the prior statement, even if the witness recalls other events. [31] M. Graham, Federal Practice and Procedure: Evidence § 6792, at 764 (inter-, im ed.1992).
Canady,
From another similar point of view, because “[tjhere is no inherent contradiction between a recitation of an event and a subsequent memory failure ..., the potential to impair [Staggs’] credibility is wanting, and the only legitimate thrust of the prior account is as independent proof of the matters asserted.” A. Bowman, Hawaii Rules of Evidence Manual 391 (2d. ed.1998). Thus, using Staggs’ statement as proof of the matters asserted squarely presents “[t]he hearsay problem ..., and [HRE R]ule 802.1 comes into play.” Id. Staggs who “lack[ed] present memory of the events related in a
It may also be observed that HRE 802.1 requires that as a prerequisite to admissibility, the prior statement must be “given under oath” or “reduced to writing and signed or otherwise adopted or approved by the declar-ant” or “recorded in substantially verbatim fashion by stenographic, mechanical, electrical; or other means contemporaneously with the making of the statement.” HRE 802.1(1)(A)-(C). The rationale that bars admissibility when the witness is unable to testify about the events in the hearsay statement, see Canady, Eastman, and Clark, supra, is even more compelling here. Staggs’ statement bears even less indicia of reliability inasmuch as, in addition to not recalling what was said, Staggs never swore to, signed, or adopted the hearsay statement allegedly made.
XXXII.
The majority claims “[tjhis concept is not a novel one[,]” and maintains that “even under this jurisdiction’s version of the Robert’s analysis, sufficient cross-examination of the hearsay declarant at trial terminated the inquiry.” Majority opinion at 523,
As stated before, Owens is inimical to the broad construction given the Hawai'i Constitution’s confrontation clause in prior decisions of this court. See Sua II,
As to Eastman and Clark, the majority maintains that “[bjecause the witness is subject to cross-examination, the substantive use of his [or her] prior inconsistent statement does not infringe the sixth amendment confrontation rights of accused in criminal cases.” Majority opinion at 523,
XXXIII.
As a result, and for the reasons discussed before, the majority is wrong in declaring “that the protections guaranteed by Hawaii’s confrontation clause have been fully afforded ... where the hearsay declarant attends trial and is cross-examined[.]” Majority opinion at 524,
The assertion, then, that “foundational interests are preserved!,]” id., by way of impeachment is erroneous as stated supra because when substantive use of the statement is at stake, a determination as to admissibility would precede any impeachment procedure. The majority’s claim that following the Sua II paradigm of unavailability in testimonial situations “expandfs] the protections of’ the clause “beyond its purpose,” id. at 517 n.9,
Despite its protestation to the contrary, in holding that a hearsay statement is admissible even if the declarant has no memory of the statement or the events described in the statement, the majority directly contradicts Sua II. Such a holding is inherently inconsistent with the majority’s claim that it adheres to the “ ‘unavailability’ paradigm embedded within this jurisdiction’s version of the Crawford analysis ... [that] must be interpreted to include a witness’ lack of memory, pursuant to greater protection afforded by the Hawai'i [Constitution as recognized by this court in Sua [II].” Majority opinion at 527-28 n.14,
XXXIV.
In an attempt to deflect the effect of its ruling, the majority contends that the dissent “attempts] to conjure disparity[,]” majority opinion at 527,
First, there is no need to “conjure disparity” because there is an actual conflict between how the majority applies the availability requirement and this court’s confrontation clause jurisprudence. As stated before, pursuant to Crawford, a declarant is “unavailable” for confrontation clause purposes only if he or she never takes the stand. The majority reiterates this point by repeated references to Craivford’s footnote nine and summations of cases from other jurisdictions. See, e.g., Gomez,
Second, statements that the majority seems to attribute to the dissent were never posited. It is not the dissent’s position that “a hearsay declarant’s presence at trial mandates the conclusion that the declarant is constitutionally available,” majority opinion at 527,
The majority also appears to agree with this dissent when it states that “the ‘unavailability’ paradigm embedded within this jurisdiction’s version of the Crawford analysis ... must be interpreted to include a witness’ lack of memory, pursuant to the greater protection afforded by the Hawaii Constitution as recognized by this court in Sua [II].” Majority opinion at 527-28, n.14,
XXXV.
I reiterate that we need not reach the Crawford issue because admission of Staggs’ alleged hearsay statement constituted plain error. With all due respect, the majority contorts the language and substance of our case law in an effort to comport its result with this jurisdiction’s precedent but instead only aligns our confrontation clause with the less protective federal standard. The ramifications of this approach bodes ill for the vitality of the confrontation clause guarantee and our prior insistence that the opportunity to cross-examine a witness on the subject matter of his or her prior statement be meaningful.
XXXVI.
In line with the foregoing, I would reverse the ICA’s May 31, 2005 published opinion and the court’s October 11, 2002 judgment.
. HRE Rule 802.1 entitled, "Hearsay exception; Prior statement by Witnesses” states in relevant part:
The following statements previously made by witnesses who testify at the trial or hearing are not excluded by the hearsay rule:
(1) Inconsistent Statement. The declarant is • subject to cross-examination concerning the subject matter of the declarant’s statement, the statement is inconsistent with the declarant’s testimony, the statement is offered in compliance with rule 613(b), and the statement was:
(A) Given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or
(B) Reduced to writing and signed or otherwise adopted or approved by the declar-ant; or
(C) Recorded in substantially verbatim fashion by stenographic, mechanical, electrical, or other means contemporaneously with the making of the statement;
(2) Consistent Statement. The declarant is subject to cross-examination concerning the subject mattei; of the declarant's statement, the statement is consistent with the declarant's testimony, and the statement is offered in compliance with rule613(c)[.]
(Emphases added.)
. HRE Rule 613(b) states:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross-examination, (I) the circumstances of the statement have been brought to the attention of the witness, and (2) the witness has been asked whether the witness made the statement.
. As noted, see supra note 1, with regard to prior consistent statements, HRE Rule 802.1(2) also requires that the declarant be “subject to cross-examination concerning the subject matter of [his or her] prior statement.” HRE Rule 802.1 (2) additionally requires that the prior statement be "consistent with the declarant's testimony,” and "offered in compliance with HRE Rule 613(c).” PIRE Rule 802.1(2).
. Moreover, because Staggs’ prior statement was not given under oath, reduced to writing and signed, or otherwise adopted by her, nor contemporaneously recorded in a substantially verbatim fashion, the requisite foundation under HRE Rule 802.1(1) was not laid. In his Opening Brief, Petitioner additionally states that "Staggs’ prior statement did not ... fall within any other firmly rooted exception to the hearsay rule."
. HRE Rule 804(b)(8) states:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(8) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
(Emphases added.)
. Crawford and Haili were decided on March 8, 2004, and December 3, 2003, respectively.
. HRE Rule 803 entitled "Hearsay Exceptions; Availability of Declarant Immaterial” states in relevant part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
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(b) Other Exceptions.
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(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
. Richards' statement, “Reggie get off her,” related to the court by Kharma Lhamo (Lhamo) was also inadmissible because it was also hearsay and did not qualify as an exception to the hearsay rule. See Fields, at -, - P.3d at -
The ICA stated that "[Lhamo’s] testimony, repeating what Richards said, is hearsay under HRE Rule 801" and "[t]he record does not answer the question [of] whether Richards was or was not unavailable to testify” so “if counsel for Fields had objected to the introduction of Richards' prior testimonial statement into evidence on the ground that it violated the HRE, the objection would have had merit and could not have been validly denied.” Fields, at -, - P.3d at -,
. The majority appears to agree that the right of confrontation is a substantial right. See majority opinion at 528,
. As noted, contrary to the majority, and to be accurate, Fields did raise, and the ICA implicitly acknowledges, what would be deemed an infringement of Fields' substantial rights. With all due respect, to say that Fields does not show that his substantial rights have been affected when he was convicted based on the admission of incompetent hearsay evidence, and sentenced to probation for two years and imprisonment for two days, is disingenuous and raises the question of how this court could ever find an infringement of substantial rights significant enough to find plain error. As noted, Fields plainly asserted that his substantial rights were violated by the admission of Staggs' hearsay statement.
. The majority ignores this precedent discussing the plain error analysis of inadmissible hearsay and instead, only states without explanation that exercising plain error is not "appropriate." Majority opinion at 529,
. It should be noted that Respondent does not argue the admission of Staggs' hearsay statement should be deemed harmless. On the other hand, Respondent argued in its Supplemental Answering Brief that "the error in admitting Richards' statement was harmless beyond a reasonable doubt." (Emphasis added.)
. The cases cited by the majority for this proposition all recognize that plain error may be recognized even though they were never brought to the attention of the court and applied plain error in the particular case. See State v. Rodrigues,
Further, the majority's deviation into federal authority is misplaced inasmuch as the majority ignores the overwhelming precedent from our own jurisdiction. Majority opinion at 529,
. Obviously, other courts have concluded that there was plain error in admitting evidence in violation of a defendant's confrontation rights, despite defense counsel’s failure to object. See e.g., Page,
. In greater context HRPP Rule 40(a) states:
The post-conviction proceeding established by this rule shall encompass all common law and statutory procedures for the same purpose, including habeas corpus and coram nobis; provided that the foregoing shall not be construed to limit the availability of remedies in the trial court or on direct appeal. Said proceeding shall be applicable to judgments of conviction and to custody based on judgment of conviction ....
(Emphasis added.)
. Again, as the ICA plainly stated, "if counsel for [Petitioner] had objected to the introduction of [Staggs’] prior testimonial statement into evidence on the ground that it violated the HRE, the objection would have had merit and could not have been validly denied.” Fields, at -, - P.3d at -,
. The majority maintains that Poaipuni is distinguishable because in that case "the defendant raised and argued the ineffective assistance of counsel claim on appeal” and because “no such argument was asserted [here], ... there may be other portions of the trial court record that were not made part of the record on appeal because they were not relevant to the points of error actually presented." Majority opinion at 529 n.17,
As in Silva, however, the record is sufficiently developed to make a determination regarding ineffective assistance because the error is clear and the Petitioner makes no pretense on appeal that the failure to object was a strategic move. See Silva,
. Again, the ICA has already recognized that Staggs' statement was otherwise inadmissible hearsay, and the majority has affirmed the ICA. See Fields, at -, - P.3d at -,
. The court's "Judgment; Notice of Entry (For Probation Sentence)," dated October 8, 2002, but filed in the court on October 11, 2002, indicates the following: "Judgment and Sentence of the Court: Probation”; "Term Two (2) Years.” (Capitalization omitted.) In addition to the usual terms and conditions of probation, the court also imposed special conditions. At the sentencing hearing on October 8, 2002, Petitioner filed in open court, a "Motion to Stay Mittimus Pending Appeal,” in which he requested "an order granting a stay of incarceration pending appeal!,]” pursuant to HRS § 804-4. On October 8, 2002, his mittimus was stayed pending appeal.
. The Court further explained the difference between testimonial and nontestimonial statements in Davis v. Washington, - U.S. at -, -,
[Statements] are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
. The ICA reasoned as follows:
Obviously, [the witnessJ Gooman[J testified ex parte at the grand jury proceeding. [The defendant was not allowed to be present and his defense was not placed before the grand jurors. Unlike the procedure afforded at a preliminary hearing, [the defendant had no opportunity to question Gooman. The State was free to develop Gooman’s testimony for the grand jury in any manner it chose to, free of any adversarial or judicial intervention. Plainly, Goo-man’s statement cannot be said to have been given under circumstances closely approximating those that surround the typical trial.
The confrontation clause is intended to ensure the defendant an effective means to test adverse evidence. [The djefendant was foreclosed from cross-examining Gooman at the grand jury proceeding; hence, there was no means by which he could test the evidence presented against him. Gooman’s lack of memory at trial further prevented [the defendant from challenging the grand jury statement.
... Our review establishes that the grand jury procedure is primarily intended to facilitate the government’s interest in obtaining an indictment. Accordingly, a hearsay exception for grand jury testimony cannot be said to substantively preserve [the defendant's right of cross-examination.
Sua I,
. This court granted certiorari in Sua I and in Sua II, reversed the ICA in part, indicating that "[i]n contrast to the ICA’s opinion, we hold that, under certain circumstances, receipt of grand jury testimony pursuant to a firmly rooted exception to the general rule against hearsay may adequately preserve a defendant's right of cross-examination.” Sua II,
. As noted before, in Sua I,
. Footnote nine is somewhat ambiguous. It may be read, as the majority apparently does, that a witness' physical presence for cross-examination is sufficient to satisfy the availability requirement. On the other hand, the reference to "defendfing] or explaining]” the statement could be read as a requirement that the witness be able to respond substantively to defend the statement or to explain it.
. Crawford aside, as noted before, the majority does not explain how Staggs' hearsay testimony is nevertheless admissible.
.The cases cited by the majority are also distinguishable because they involved (1) statutes expressly (a) allowing admission of hearsay where persons are "available” for cross-examination or (b) allowing hearsay testimony of minors or persons mentally retarded, and/or (2) involve cases where the witnesses did not lack memory or (3) the witness was able to respond to some of tire questions, or (4) the testimonial aspect of Crawford was not argued.
As to (l)(a) and (b), in State v. Corbett,
Unlike Staggs, who could not recall and, thus, defend or explain her previous out-of-court testimony, the eyewitnesses in Corbett did not experience such a loss of memory. In fact, the eyewitnesses testified at the defendant’s trial, and were also available for extensive cross-examination, which incorporated significant portions of their deposition testimony. In State v. Tester,
In People v. Johnson,
By contrast, Staggs had a difficult time remembering the alleged assault, could not recall her conversation with Officer Ke, was not a minor or mentally disabled at the time of the alleged assault, and her statement was not spontaneous, but in response to Officer Ke's questioning.
In Gomez v. State,
As to (2) and (3), in Robinson v. State,
As to (4), in Mumphrey v. State,
. Accordingly, the analysis in this opinion is grounded in article I, section 14 of the Hawai’i Constitution. See Michigan v. Long,
. For example, the majority argues that it is "the dissent's erroneous substitution of the phrase, 'available for cross-examination,' with the phrase 'available as a witness for the prosecution,' that creates the foregoing appearance of incompatibility!,]" majority opinion at 527,
. The majority cites to Lee,
The issue in Lee was whether the prosecution could show the declarants' unavailability which, per HRE 804(a)(5) required that the declarant "[ids absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant’s attendance by process or other reasonable means.”
In this case, as the majority correctly notes, "Staggs' 'unavailability' has been conclusively established by her lack of memory!,]” majority opinion at 524,
. Although at one point the majority states the question is whether Petitioner was afforded “a meaningful opportunity to cross-examine,” majority opinion at 524,
. The four criteria were:
(1) the witness must have had first-hand knowledge of the event;
(2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it;
(3) the witness must lack a present recollection of the event; and
(4) the witness must vouch for the accuracy of the written memorandum. Mitchell v. United States,368 A.2d 514 , 517-18 (D.C.1977) (per curiam) (citation and internal quotation marks omitted).
Carey,
. The majority maintains that "Crawford does not state that a declarant is constitutionally ‘unavailable’ only if the declarant is not present at trial,” but asserts instead that the confrontation clause "does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. Crawford at
There is no difference between being "present at trial" and "being present at trial to defend or explain” the hearsay statement if, as the majority would have it, one is present to defend and explain one’s statement even though he or she has no recollection of ever making it. Further, on the prior page, the majority posits that in Sua II, "Gooman was nevertheless semantically available for cross-examination by virtue of his physical presence at trial, thereby providing Sua with an opportunity to cross-examine Gooman.” Majority opinion at 526,
. As to this requirement, Eastman concluded that because “the prosecution directly examined [the complainant] as a witness and elicited testimony from her about her argument with [the defendant] on September 30, 1994, the events that caused her to suffer a swollen left eyebrow, and her prior statements in the WSF alleging that [the defendant] had slapped her ..., the prosecution made [the complainant] subject to opposing counsel’s cross examination concerning the subject matter of [the complainant's] prior statements in the WSF.”
. Clark stated:
The situation envisioned is one where the witness has testified about an event and his or her prior written statement also describes that event but is inconsistent with his or her testimony. Since the witness can be cross-examined about the event and the statement, the trier of fact is free to credit his or her present testimony or his or her prior statement in detennining where the truth lies. ...
Eastman,81 Hawai'i at 136 ,913 P.2d at 62 (citing to the Commentary to HRE Rule 802.1.).
. HRS § 709-906(1) provides, in pertinent part that “[i]t shall be unlawful for any person, singly or in concert, to physically abuse a family member. ... For the purposes of this section, 'family or household member’ means ... persons jointly residing or formerly residing in the same dwelling unit.”
. In characterizing Staggs as being in a "drunken state,” the majority overreaches. Staggs responded "Yes” when asked whether or not she had had a lot to drink and Officer Ke testified that Staggs “appeared to be intoxicated." Officer Ke gave no indication that Staggs' drunkenness led him to question the veracity of her statement. At no point do any of the witnesses state Staggs was in a "drunken state.” On the other hand, because it was Officer Ke who related Staggs’ statement, that version of the incident was presented in a coherent, rational, and detailed manner. See State v. Machado,
Additionally, as to the majority’s theory that "Staggs was not an innocent victim but an aggressive participant in the incident who, while angry at Fields, gave a false statement to the police,” majority opinion at 523,
. Wigmore, cited to by the majority, see majority opinion at 524,
. This puts to rest the majority’s assertion that "the fact of Staggs' memory loss further permitted the trier of fact to test the truth of her prior out-of-court statement.” Majority opinion at 523,
These inquiries all speak to impeaching the credibility of a witness and presupposes the admissibility of the statement. The instant case involves the question of whether Petitioner was able to “meaningfully cross-examine” the declar-ant, a question which must be resolved before the statement is admitted. Owens, of course, has been disavowed in this jurisdiction. See discussion supra and infra.
Concurrence Opinion
Concurrence and dissent by
Having dissented to the published opinion, I would grant reconsideration on the basis of my dissent herein, and the Order of Amendment filed by even date herewith. In that regard, I would reverse the May 31, 2005 published opinion of the Intermediate Court of Appeals, and reverse the October 11, 2002 judgment of the family court of the fifth circuit.