State v. Fields

judgment enter affirming thereon the Com- 168 P.3d 955 September mission’s 2003 order. Hawai'i, STATE of Plaintiff-

Appellee-Respondent,

Concurring Opinion by LEVINSON, J., MOON, C.J., joins. with whom Reginald FIELDS, Defendant- Appellant-Petitioner. I am not majority as comfortable as the No. 25455. with the Commission’s conflation of the areas Developer’s makai of the Supreme Setback with the Court of Hawai'i. (d) “Open so-called portion” zone[ ] Aug. 30, 2007. “strip.” “plain[J” considers As Amended on Denial of Reconsideration and “evident” correspondence between Oct. 2007. regions the oceanfront circumscribed on the Reconsideration Denied Nov. Developer’s maps “Open por- and the zoned “Open tion” or strip.” Majority opinion zone 168 P.3d at 944-45. To the con- .3(a)

trary, sections 8-2.2 and of Kaua'i Coun- (1976 ty’s Revised Code of Ordinances & Supp.1978) unambiguously require that “Open boundaries of an correspond District” to those on the “Zoning Map” formal changed only “by ordinance.” Nev-

ertheless, I realize that a “zone” and a “dis- necessarily and, trict” are not synonymous regard with ambiguities this and the other (U)-84-2 order, in the SMA I would defer to Commission, expertise technical see, Use, e.g., Constr., In re Water Well & Pump Apps., Install’n Permit (2004), decid- which Developer’s

ed that Setback and the “open be, boundary were, zone” could

one and the same. ultimately agree

Inasmuch as I majority that the clearly Commission did not (IR-84-2 by concluding that the SMA

eer incorporated order Developer’s Setback thereof, Brescia notice I concur in judgment. the court’s Nakasone, T. Deputy

Karen Public De- fender, defendant-appellant-petitioner application. MOON,-C.J., LEVINSON, NAKAYAMA, DUFFY, ACOBA, J., Dissenting. JJ and Opinion by NAKAYAMA, of the Court J. 30, 2005, On June defendant-appellant-pe (“Fields”) Reginald titioner Fields filed an application for writ of certiorari to review the published decision of the Intermediate Court (“ICA”) Appeals Fields, of v. State No. — — Hawai'i -, P.3d -, (“the (App.2005) opin WL ICA’s ion”), affirming judg the October family circuit,1 ment of the court of the fifth of, convicting sentencing for, Fields and him family the offense of abuse of a or household member, in violation of Hawaii Revised Stat (“HRS”) 709-906(l).2 § utes parties dispute do not that Fields was on strength hearsay. convicted affirming conviction, the ICA held that extrajudicial admission of these state ments as guilt substantive evidence of Fields’ did not violate Fields’ constitutional During confrontation. pendency appeal ICA, Fields’ before the the United Supreme States Court decided v. Crawford Washington, U.S. S.Ct. (2004), L.Ed.2d 177 a substantially case that admitting modifies the standard for evidence consistent with the confrontation clauses of the United States and Hawaii granted Constitutions. We certiorari to con sider inculpato- whether admission of the ry hearsay in the case violated Craw Subsequently, while the matter was ford. pending court, before this the United States Supreme Court revisited in Davis Washington, U.S. -, 126 S.Ct. (2006),3 165 L.Ed.2d 224 clarifying the dis Murashige presided. 1. The Honorable Calvin K. persons jointly residing ber' means or for- merly residing dwelling in the same unit.” 709-906(1) § (Supp.2003) provides, 2. HRS pertinent part, any that "[i]t shall be unlawful for opinion yet published 3.The Davis has not been concert, person, singly physically or in abuse a Reports, in the United States and we henceforth family pur- or household member.... For the section, poses ‘family of this or household mem- tinction questioned Staggs, between and nontestimo- Officer testimonial Ke who in- hearsay. Considering points nial upset Fields’ formed him that Fields with her Davis, light error in and we about the evening’s now earlier altercation with Cratvford affirm his Pepper. conviction. she lying She stated that

the couch watching television when Fields approached behind, her from held her neck I. BACKGROUND couch, against punched and her on the left urged side of her face. Officer Ke Background A. Factual statement, Staggs Staggs to fill out a but night On April Fields was requested lawyer. declined and instead then-girlfriend, home with his Melinda suggestion She also rebuffed the officer’s Staggs friend, (“Staggs”) Dave Rich- that she visit a shelter. Officers women’s Ke (“Richards”). ards Fields Richards were Kapua seeing left Fields or without eating phone dinner when Fields received a Richards. mother, call Patsy Pepper from (“Pepper”), who threatened to “com[e] over History B. Procedural to the house to kick his ass and kill him.” April 29, 2002, On plaintiff-appellee-re- Pepper arrived, and several men thereafter spondent (“prosecution”) State of Hawai'i fight ensued. was struck mul- complaint filed a charging Fields with com- tiple attempting protect times while mitting family abuse of a offense of Fields, wearing a colostomy bag who was member, household in violation of HRS recovering operation. from an 709-906(1). § landlord, (“Lhamo”), Fields’ Karma Lhamo jury-waived trial Fields’ commenced on property approxi- also lived on the in a house July Staggs, prosecution’s first mately away. Hearing feet one-hundred witness, examination testified on direct Staggs yelling, police; summoned the Lhamo remembering” any she had “a hard time officers minutes arrived fifteen later and es- April the events on 2002 and could not Pepper proper- corted and her friends off the recall her with Officer Ke. conversation made, ty. however, No arrests were because Nevertheless, cross-examination, on she tes- Staggs charges. press refused to tified about the as follows: incident night, argument Later that a second arose Q. recall, you Staggs, Do Ms. on this Fields, Staggs, between and Richards. particular night, 13th April talking, we’re bedroom, From “slapping her Lhamo heard present? being David Richards thug” that sounds” and a “hard sounded like believe—yes, I A. I believe he was. “somebody ground.” falling to the She then Richards) yell, heard (presumably someone Q. you And do recall whether on this “Reggie, get Phoning police off her.” night—on evening whether or this—or this way again, neighbor- Lhamo made her you anything? drinking were house, ing Staggs sitting where found she Yes, A. I was. up, her couch “kind of kind of scared shook Q. you drinking? What were something.” and ... half beaten or A. Beer. (“KPD”) Kauai Department Police Officers Q. Okay. you Did have lot to drink? (“Officer Kapua”) Kapua Karen and Elliot A. Yes. (“Officer Ke”) Ke at the residence to arrived Q. that, why you perhaps, Is have no already find that Fields and Richards had recollection? departed. crying and her clothes was Perhaps. A. were torn. The officers also observed red chin, shoulder, Q. you—do you Staggs’ you Do under—do re- marks or scratches on call, cheek, appeared perhaps, any involving incident Mr. and left and that she intoxi- cated. Fields’ surfboards—surfboard? Reporter Supreme fion.

refer to it its Court cita- recounted, objection, A. Um-hmm. Officer Ke without ques- the substance of answers to his Q. might And that involve a threat night April on the tions 2002: you if Mr. Fields that he left that were you Staggs? Did talk to Ms. [DPA:] going to break his surfboard? Yes, I did. [OFFICER KE:] IA. think that have occurred. you And where did talk to her? [DPA:] Q. Okay. you laying Do recall on his living She [OFFICER KE:] way, guess maybe board such I it was room the—her residence. chair, between the table and the and then you hap- And did her [DPA:] ask what threatening that—something to sit on it pened? like that? Yes, I [OFFICER KE:] did. Yeah, A. I do remember that. say? What did she [DPA:] Q. you Okay. perhaps Do recall Mr. She said that she and [OFFICER KE:] trying your keep Richards to hold wrists Reggie got argument. Reggie into a[sic] him, you slapping you from et cetera? Do upset. guess brought I her mom recall that at all? evening some friends over earlier No, A. I don’t remember that. police by. They and the had to come were Nothing fur- [DEFENSE COUNSEL]: upset they arguing. so were And said she you, your ther. Thank Honor. laying watching she was down on the couch TV, guess Reggie up and I came behind Lhamo then prosecution. testified for the down, holding her and started pressing her call, Regarding phone her emergency second like, hands, on her neck with both of his following: Lhamo stated the holding ldnd of her down on the couch. [DEPUTY PROSECUTING ATTOR- And punched then she also said that he her Okay. you NEY:] After called 911 what face, face, in the left side of her Melinda’s you did do? face. go I [LHAMO:] went to over and to see Upon questioning by prosecution, further [Staggs] okay if Reginald was euz and his Staggs’ appearance Officer Ke also described company They had left his Suzuki. left . at the scene: property, guess and I Melinda was you Staggs’ [DPA:] Can describe Ms. wanting okay to know if he was or not. appear*ance you when saw her? acting [DPA:] How—how was Melinda She—her [OFFICER KE:] clothes was (inaudible)? you when front, torn at the she [sic] had—her face— She up, [LHAMO:] was kind of shook her face was red on her left cheek was— scared, of, you know, ldnd of ldnd like what and there were also abrasion on her [sic] really here, going you is—what is on know. chin and a scratch on her shoulder. She also—appeared was to be intoxicated. prosecution subsequently inquired The And [DPA:] how was her demeanor anything whether Richards said to Fields talking you? when she was during argument Staggs. Fields’ with Her crying She memory initially [OFFICER KE:] was and faltering, Lhamo utilized a upset. police report4 to refresh her recollection. reviewing police

After report, Lhamo cross-examination, On Officer Ke confirmed objection testified without that Richards told Staggs sign declined to a written state- Fields, “Reggie, get off her.” lawyer. ment because she wanted to consult a prosecution The rested at the conclusion of Next to the witness stand was Officer Ka- testimony. Officer Ke’s pua, Staggs crying” who recalled that “was and had “a red mark on parties her chin and also a The stipulated thereafter red on scratch her shoulder” when report prepared by special she admission of a (“Gonsalves”), and Officer Ke investigator arrived home. Leon Gonsalves police report 4. The was not submitted into evi- dence. July 2, 11:30, police

who interviewed Richards on 11:40 about when were report, hearing Gonsalves related Richards’ landlord called as result of the recollection that Among he was when Fields some sounds. the statements or Staggs began argue, and that Fields sounds that the landlord heard physically [Staggs].” “never person, assaulted Gon- statement of one believed to be [Richards], strong saying: Reggie, get salves noted Richards “had a off her. .;. breath, liquor order on his [sic] police observed the demeanor and flushed, appeared unsteady on his feet” [Staggs]. condition of Her clothes were dui'ing report the interview. The did not front, red, torn in cheek was there was statement, allegedly mention Richards’ over- chin, abrasion on her scratch on her shoul- Lhamo, Fields, telling “Reggie, get heard der. There were statements that [Fields] off her.” [Staggs] got argument had into Finally, Fields took the stand and testified involving because of the earlier incident Fields, According in his own over, defense. police the—when the came and that Richards following asked be driven home grabbed upon or came—came her [Fields] Pepper. Staggs the altercation protest- behind, from held her down struck her ed that she did not want to be left alone and in the face. struck after Fields he insisted that she re- heard, upon Based what the Court has

main at home. She also “kicked in the door” [prosecu- the Court will find that the and threatened to break Fields’ surfboard. proven beyond has its ease a reason- tion] Fields testified that he and Richards never- you guilty able doubt and will find of the departed, hitting theless and he denied ever offense. Staggs. wearing He also noted that he was ruling, family Based on its oral court colostomy bag that restricted his movements judgment entered a of conviction October night alleged on the offense. 11, 2002 and to a term sentenced Fields During closing arguments, prosecution years’ probation. two On November emphasized say, that Lhamo heard Richards timely appeal. Fields filed a notice her,” “Reggie, get off and that in- formed Ke that Fields “was on her Officer Appeal C. Fields’ Before the ICA holding prosecution argued her down.” The ICA, appeal ar On before the Fields that both statements were substantive evi- gued family plainly that the court erred Staggs. dence that Fields abused statement, admitting Staggs’ as related Counsel for Fields submitted on the evi- Ke, Officer that held her down and Fields presented and to make a dence declined clos- punched Specifically, her in the face.5 Fields ing argument. (1) Staggs’ contended that: the admission of ruling, family In its oral court relied to Officer Ke violated the statements heavily on the out-of-court statements of against hearsay rule forth in set Hawai'i Staggs support finding and Richards to its (“HRE”) (2002); Rule 802 Rules of Evidence guilt: (2) family acceptance Staggs’ court’s evidence

The Court understands from the testi- statements as substantive mony of the that there were two instances—or violated the confrontation clauses sixth day. incidents on the same The initial amendment to the United States Constitution I, people and article section 14 of the Hawai'i Con incident had to do with carload (3) stitution; coming where the Defen- the record lacked substantial to the residence support con living. following dant and victim And and admissible evidence to his were (4) viction; prosecution and failed to that incident there another incident was parties disputed were hear- 5. Neither the nor the ICA that the matter asserted.” The statements Staggs' "hearsay.” they were say out-of-court statements were under HRE Rule 801 inasmuch as (2002) provides, pertinent part: HRE Rule offered as substantive evidence of the truth of the " statement, ‘Hearsay’ is a other than one made therein—i.e., Fields matters asserted that abused testifying the declarant while at the trial or Staggs. hearing, prove in evidence the truth of offered prove corpus subsequently using delicti of the offense The ICA ac- Constitutions. than hearsay. knowledged fundamentally evidence other al- analysis by holding tered the that the con- (1) prosecution that: The answered Fields’ frontation clause of the sixth amendment to conviction should be affirmed because Fields precludes the United States Constitution timely object did not to the admission of testimonial of a “admission of statements wit- Staggs’ hearsay statements; and Richards’ appear ness who did not at trial unless he (2) error, plain and the ICA if noticed testify, was unavailable and the defendant evidentiary case should remanded for an prior opportunity had had a for cross-exami- hearing whether the statements were ad- Crawford, nation.” 541 U.S. at hearsay. missible S.Ct. 1354. (1) replied that: Fields ICA should Crawford, upon lengthy Based as a as well plain error notice because the error com- Owens, excerpt from United States v. plained right his violated constitutional U.S. S.Ct. 98 L.Ed.2d 951 (2) confrontation; neither statement ad- (1988), family the ICA concluded that hearsay exception missible aas under the court did not violate Fields’ sixth amendment (3) HRE; and insofar neither as by permitting Staggs’ of confrontation admissible, lacked record sufficient ouUof-court statements insofar support evidence to his conviction. appeared both at trial and testified. The 14, 2004, September On the ICA ordered that, respect ICA also concluded with parties supplemental to file briefs ad incorporated confrontation clause into the Haili, dressing State Constitution, Haili, Crawford, not (2003), Crawford, P.3d 1263 cases which applicable precedent. was the Accordingly were decided on December 2003 and that, Haiti, pursuant the ICA determined respectively. March any objection Staggs’ Fields’ counsel supplemental Fields’ brief added that the out-of-court statements could have been val- family plainly by accepting court erred Lha- idly denied. testimony statement, mo’s as to Richards’ her,” “Reggie, get off inasmuch as violated 2. The HRE rights under Crawford. subsequently The ICA noted the ad- prosecution The answered that: Staggs’ mission of and Richards’ out-of-court family properly Staggs’ court admitted comply not statutory statements did statements; Richards’ as- provisions HRE. ICA conceded arguendo, suming, family court that, objected had counsel by admitting statement, erred Richards’ such hearsay statements, objec- Richards’ such error was harmless. validly tions could not have been denied. Nevertheless, the ICA May concluded published On the ICA filed a family opinion court did commit “error” affirming when Fields’ conviction.

admitting hearsay the statements because it 1.Fields’ clause claims “duty” had no to exclude the evidence absent confrontation objection. empha- trial ICA counsel’s Addressing Fields’ confrontation clause object sized that trial counsel’s failure to to claims, ICA quoted length the first from Staggs’ and Richards’ statements Roberts, Ohio v. 448 U.S. 100 S.Ct. presented an ineffective of assistance counsel (1980), L.Ed.2d and Haiti for the claim, in which Fields could assert a collater- proposition prosecution that the must demon- post-conviction pursuant al proceeding, to strate that the statements of an (“HRPP”) of Hawai'i Rules Penal Procedure adequate unavailable declarant bear indicia Rule 40. reliability in of order for those statements to be admissible as substantive evidence with- Sufficiency 3. the evidence of infringing upon out protections the afforded that, Finally, criminal defendants the confrontation ICA concluded because Staggs’ clauses of United States and of Hawai'i admission and Richards’ out- error, of the ICA trial inconsistencies the decision of-court statements was court, supreme that of the federal lacked Fields’ assertion that his conviction decisions, mag- and the or its decision own sufficient evidence moot. of errors or inconsistencies nitude such family Accordingly, the ICA affirmed the appeal. See dictating the need for further judgment court’s October without (1993). §HRS 602-59 prejudice asserting an to Fields ineffective Dahman, Dang 103 Ha Wemple ex rel. v. post-eonvic- in a of counsel claim assistance (2004).6 100, 107 385, 392, 83 P.3d wai'i proceeding, pursuant tion to HRPP Rule 40. Questions B. Constitutional Application of D. Fields’ for Writ Certio- questions of constitution “We answer rari by exercising independent al our own law 30, 2005, timely On June Fields filed a judgment based on the facts of the case.... certiorari, he application for writ of which questions of constitutional we review (1) gravely ‘right/wrong’ contended that the ICA erred law under the standard.” State Feliciano, 469, 475, failing find that the of admission 115 P.3d Hawai'i (2005) (citing (ellipses original) and Richards’ statements did not Jenkins, of the Ha- violate the confrontation clause State v. (2) Constitution, (2000)). declining notice

wai'i abdicating judicial plain error and review Sufficiency C. of the Evidence HRPP post-conviction of a Rule favor (3) failing acknowledge proceeding, and Regarding a criminal defendant’s prosecution to adduce suffi- failed prosecution claim that failed to adduce support cient admissible evidence to his con- evidence, stated as follows: sufficient we have viction. long held that evidence ad- We have must be considered

duced in the trial court II. OF REVIEW light prosecution STANDARDS strongest in the for passes appellate court when A.Application for of Certiorari Writ sufficiency sup- legal of such evidence determining grant or When whether conviction; ap- port a the same standard certiorari, deny application for of writ judge before a plies the case was whether jury. appeal The test on is not wheth- grave for or a this court reviews decisions beyond fact, guilt a reasonable or or obvious er is established errors law (c) may employs following application writ of certiorari Presently, An for this court determining supreme review whether to than standard of when filed with the court no later be reject applications accept for writs of certiora- filing judgment or ninety days or after the of the ri: appellate order of the intermediate dismissal § the interme- 602-59 Review of decision of Opposition application writ to an for court. certiorari, court, (a) appellate issu- After diate ance filed no later than fifteen certiorari appellate judg- the intermediate court's days application filed. The su- after the order, party may seek ment or dismissal accept ap- preme court shall determine to appellate court's review of the intermediate objection thirty days plication after an within judgment dismissal order decision and by application or have been filed. The failure of the is or could supreme court for a writ thirty days accept supreme within court to certiorari, acceptance rejection rejection application. of the shall constitute supreme discretionary upon the which shall be (d) application, Upon acceptance court. complete file of the clerk forward the shall (b)The application writ of certiorari Supplemental supreme court. case to grounds, tersely which shall in- shall state its parties only accepted from the briefs shall be clude: request supreme upon court. of the fact; (1) Grave errors of law or of However, (Supp.2006). § we uti- HRS 602-59 (2) in the decision Obvious inconsistencies reviewing the when lize the formulation appellate with the intermediate court application writ Fields' case at bar insofar as court, supreme federal deci- that of the change took decision, of certiorari was filed before sions, mag- and the or its own effect. errors or inconsistencies nitude of those dictating appeal.. for further the need 512

doubt, Nonetheless, but whether there was substantial stopped we have short of support holding right poses evidence the conclusion of the that the of confrontation an absolute bar to trier of fact.... the admission of all out-of- Haili, court statements. See 103 Hawai'i at every “Substantial evidence” as to mate- 103, (citing McGriff, 79 P.3d at 1277 State v. charged rial element of the offense is cred- 148, 156, 782, 76 Hawai'i 871 P.2d 790 quality ible evidence which is of sufficient (quoting States, Bourjaily v. United 483 U.S. probative [person] value to enable a 171, 182, 2775, 107 S.Ct. 97 L.Ed.2d 144 support reasonable caution to a conclusion. (1987))). Instead, long have we held that a Batson, 236, 248-49, State v. 73 Haw. 831 may, trial court consistent with a criminal 924, (1992), denied, P.2d 931 reconsideration right defendant’s constitutional of confronta 625, (1992) (citations 73 Haw. 834 P.2d 1315 tion, permit hearsay by a statement uttered omitted). an unavailable declarant as substantive evi dence if the two-part statement satisfies the III. DISCUSSION test announced the United States Su preme Haili, Court Roberts. See 103 A. The Hawai‘i Constitution’s Confronta- 104, Sua, Hawai'i at 79 (citing P.3d 1278 tion Clause 71, 92 Hawai'i at (quoting 987 P.2d at 969 Fields gravely contends that the ICA Ortiz, 361, 555-56)). 74 Haw. at 845 P.2d at erred affirming a conviction that was regards part As the first of the Roberts primarily based evidence ren- test, that[,] we have remained resolute un- dered inadmissible the confrontation der the confrontation clause of the Hawaii clause of the Hawaii Constitution. For the Constitution, showing of the declarant’s follow, disagree. reasons that we unavailability necessary promote integrity finding process of the fact and to right 1. The as under- of confrontation ensure fairness to defendants.... stood at the time Fields’ trial Upon demonstrating that a witness is unavailable, under the second half of the I, The confrontation clause of article sec- test, only Roberts statements that bear tion 14 of the Hawaii Constitution states: “adequate reliability” may indicia of be prosecutions, “In all criminal the accused “Reliability” admitted into evidence. enjoy right shall ... to be confronted ways. First, reliability shown two against witnesses the accused[.]”7 may be inferred without more if it “falls right of confrontation “affords firmly within rooted exeep- the accused both the challenge Ortiz, 361, tion[.]” 74 Haw. at credibility veracity prosecu Roberts, (quoting 556 448 U.S. at tion’s witnesses and an jury 2531).... occasion for the S.Ct. weigh the demeanor of those witnesses.” Alternatively, reliability may be demon- Ortiz, 343, 360, State v. 74 Haw. 845 P.2d “upon showing strated particularized (1993) (citing Rodrigues, State v. guarantees Ortiz, of trustworthiness.” 80, 84, (1987)). Haw.App. 742 P.2d Haw. at (quoting reason, For this the admission of a Roberts, 2531). 448 U.S. at 100 S.Ct. statement as substantive evidence of its truth Supreme The United States Court has de- special problems” “raises whenever the hear clined “to endorse a mechanical test for say declarant is meaningful unavailable for determining ‘particularized guarantees of cross-examination on the witness stand. See trustworthiness’ under the [Confrontation] Sua, 61, 70, State v. 987 P.2d Wright, Clause.” Idaho v. 497 U.S. (1999) (citing Hoffman, v. State 73 Haw. 110 S.Ct. 111 L.Ed.2d 638 (quoting (1990). Instead, Blue the Court has determined “ State, (Alaska 1977))). ‘particularized guarantees of trust-

7. The confrontation enjoy clause of the United States the accused shall to be con identical, virtually provides, Constitution against fronted with the witnesses him[.]” U.S. pertinent part: prosecutions, "In all criminal Const. amend. VI. 53-54, 124 from the totali- for cross-examination.” Id. at worthiness’ must shown ty of the circumstances” and that “the S.Ct. 1354. only include relevant circumstances those then, interpreted by Cranford, As making that of the statement surround the primary object right confrontation particularly and that render the declarant securing lies in for the criminal defendant a 819, worthy at of belief.” Id. 110 S.Ct. procedural guarantee: basic that he be enti 3139. tled to confront and cross-examine “wit

Sua, 71-72, 92 Hawai'i at 987 P.2d at 969-70 “testimony” against nesses” bear him. who (brackets (some original) citations and Id. at 124 S.Ct. 1354. To the extent omitted). quotation marks an out-of-court statement is testimonial appro Our endorsement of as the Roberts nature, hearsay “only such is admissible priate identifying constitutionally litmus for unavailable, where the declarant is and hearsay inadmissible was therefore settled at prior opportu where the defendant has had a trial. the time of Fields’ See id. 987 nity him to cross-examine” about the state Moore, (citing P.2d at 969 v. State However, ment. Id. at 1354. S.Ct. 122, 143 (1996)). 223, 921 P.2d procedural precondition of cross-exami apply

nation does not when nontestimonial involved, Washington 2. are as the Framers did statements Crawford prosecutorial not rank the use of this latter Supreme The United States Court’s deci- type hearsay among their “core concerns.” Crawford, during pen- sion decided Id. at 124 S.Ct. in contrast 1354. ICA, dency appeal of Fields’ before the governing to the absolute rule testimonial makes untenable our continued reliance on hearsay, id. at 124 S.Ct. Cranford hearsay Roberts to define all forms of inad- subjects nontestimonial statements to a more missible under the confrontation clause. At admissibility—one relaxed standard of issue in declar- unavailable Crawford flexibility in the States their devel “afford[s] tape-recorded ant’s that was opment Id. at 124 S.Ct. law.” jury played to the to refute the defendant’s theory of self defense. Id. at sum, considering admissibility asking In an un- S.Ct. 1354. instead whether evidence, available declarant’s statement bears “suffi- the Court declined (as reliability” re- reliability using the statement’s cient indicia of Roberts to reassess Rather, quired), query, the Roberts test. the Court over- commands we Crawford and, place, ruled in its set forth a “Is the testimonial?” Roberts interpretation of the federal confronta- new end, To that confirms Crawford purports closely more tion clause hew types hearsay—“prior testimo that some original intent. to the Framers’ hearing, grand ny preliminary at a before a trial[,] ... history jury, police a former interro concludes that impor gations^]” plea allocutions—are undeni supports amendment behind the sixth ably testimonial under the sixth amendment. tant inferences about the constitutional 64, 68, 124 “First, classes of principal evil at Id. at S.Ct. 1354. Other of confrontation. records,” hearsay—“business “statements Clause was directed which the Confrontation conspiracy,” “casual re procedure, criminal furtherance of a was the civil-lawmode of clearly nontestimoni particularly parte its of ex examina likewise mark[s]”—are use Craw against al. See id. at 124 S.Ct. 1354. evidence the accused.” Id. tions as declines, however, unify ultimately That inference in turn S.Ct. 1354. ford second, examples “comprehensive defi fundamental these within a led the Court to a more hearsay, nition” of testimonial id. proposition: “that the Framers would observes, fur simply state without have allowed admission of testimonial S.Ct. clarification, suggested for appear at ther that some of a witness who did not ments the term trace the basic con testify, and mulations of trial unless he was unavailable procedural right: prior opportunity tours of the the defendant had had gation objectively of this class of under in- Various formulations core circumstances parte dicating primary “testimonial” statements exist: “ex purpose that testimony equiva- in-eourt or its functional interrogation police is to enable assistance is, affidavits, lent—that material such as ongoing emergency. They meet an to are examinations, prior testimony custodial objec- testimonial when circumstances that the defendant was unable cross- to tively ongo- there indicate that is no such examine, pretrial or similar statements emergency, that ing primary pur- and reasonably expect that declarants would to interrogation pose of the is to establish or prosecutorially,” be Brief Petition- used for past prove potentially events relevant to 23; “extrajudicial con- er statements ... prosecution. later criminal materials, in tained formalized testimonial Davis, (footnote 126 S.Ct. at 2273-74 omit- affidavits, depositions, prior such as testi- ted). subsequently applied The Court its confessions,” Illinois, mony, or White v. distinction testimoni- new-fashioned between U.S. S.Ct. specific al and nontestimonial to the (1992) (THOMAS, J., joined L.Ed.2d presented by Davis and facts Hammon. SCALIA, J., concurring part in and concurring judgment); in that “statements Davis, a. No. 05-5224 made under which were circumstances objective reasonably lead an would witness Dams involved out-of-court statements that believe the statement would McCottry (“McCottry”) made Michelle trial,” for use at a later for available Brief speaking emergency opera- while with Association of National Criminal Defense on telephone. tor Id. at 2270-71. Lawyers et al. as Amici Curiae 3. These McCottry reported ongoing an domestic dis- formulations all share common nucleus boyfriend, turbance with her former Adrian coverage and define then the Clause’s (“Davis”). McCottry op- Davis informed levels of various abstraction around it. that “jumpin’ erator Davis [her] 51-52, 124 Id. at S.Ct. 1354. again[,]” and that he was “usin’ his fists.” Washington conversation, 3. Davis v. Id. 2271. During Davis McCottry ran struck out the Id. door. Having left several foundational operator McCottry The informed questions Crawford, unresolved in United police way, that, “They’re were on their Supreme analysis States Court revisited the gonna check the area him Id. first[.]” opinion its consolidated There Davis.8 police The four arrived minutes later and in, the Court that the con clarified federal McCottry appeared distressed, observed applies only frontation clause to testimonial recently injuries that she sustained to her hearsay: “It is the testimonial character of forearm, face and she frantical- had separates the statement it other from ly belongings collected her children and that, her subject to limi while traditional preparation evidence, her leave the residence. upon hearsay tations is not Davis, charged violating Id. Davis was with a “do- Clause.” Confrontation added). Thereafter, McCottry mestic no-contact Id. S.Ct. at order.” did testify, and, objection, Court continued where left off: not Davis’ over permitted court recording trial of McCot- attempting produce Without ex- fays emergency opera- conversation of all haustive classification conceivable jury tor. Id. all The thereafter returned a statements—or even state- conceivable guilt, response police verdict and Davis’ interrogation— ments conviction nontestimonial, Washington as either testimonial or affirmed both the Court of Appeals Washington suffices decide the Supreme cases Court. Supreme follows: Statements are nontestimonial United States Court police granted made in the when course interro- certiorari. Id. at 2272. Davis, opinion

8. The of the Court consolidated Indiana, No. with Hammon v. 05- No. trial, ultimately Amy testify. trial The Court concluded that did not Id. The MeCottrys made to the 911 Amy’s statements court admitted affidavit nevertheless emergency operator were nontestimonial. impression excep- under the sense Id. at 2277. The Court reasoned that hearsay exclusionary tion to the rule. Id. “McCottry speaking about events was as permitted The trial court also the introduc- they actually happening, were than rather account, Amy’s testimony tion of oral via the ” (em- events,’ ‘describing] past id. at 2276 officers, responding police of one un- (brackets (cita- phasis original) original) in in exception. der the Id. excited utterances omitted), (2) “any tion reasonable listener judge guilty The trial found Hershel McCottry recognize would ... was fac- charged, and Hershel’s convictions were af- id., ing ongoing emergency[,]” an and Appeals firmed both the Indiana Court of “the nature of and what was asked answered Supreme and the Indiana Court. Id. at 2273. ..., objectively, again viewed was such that Supreme granted The United Court States necessary the elicited statements were to be application Hershel’s for certiorari. Id. present emergency, able to resolve the rather perceived fac- Court thereafter clear simply than happened to learn what had Davis, tual distinction between Hammon and past.” pointed in the Id. The Court out Amy’s and concluded statements were operator’s emergency attempt even the testimonial: identity McCottry’s to establish the attack- entirely It is clear from the circumstances produced er nontestimonial insofar interrogation part was inves- as the information was elicited “so that the tigation possibly past criminal con- into dispatched might they officers know whether indeed, duct—as, testifying officer ex- encountering a violent would felon.” Id. pressly acknowledged.... There nowas Accordingly, McCottry’s the Court held that emergency progress; interrogating properly statements admitted and af- were argu- officer that he had heard no testified Washington Supreme firmed Court’s crashing ments or and saw no one throw or judgment. Id. at 2280. anything.... break When the officers arrived, Amy things first told them that Hammon, b. No. 05-5705 were fine ... and there was no immediate Hammon, police responded to a person. the officer threat to her When reported domestic disturbance at the resi- time, questioned Amy for and the second (herein- Amy dence of Hammon Hershel statements, challenged he elicited the was individually after referred to as “Hershel” (as Davis) seeking not to determine arrival, “Amy”). Upon Id. at 2272. happening,’ hap- but “what “what is rather Amy police sitting discovered alone on the viewed, pened.’ Objectively primary, if Amy gave police per- porch. front sole, purpose not of the interro- indeed dwelling, police to enter and the mission gation investigate possible was glass in of “a further observed broken front course, is, precisely what crime—which gas heating unit” from flames were which the officer have done. should being on the emitted. Id. Hershel was also original). Id. at 2278 The Court police that premises, and he informed the he continued: Amy dispute arguing, were but that the The statements in Davis were taken when becoming physi- had been resolved without alone, only McCottry unprotected not Amy’s cal. Id. account differed. Id. After (as Amy protect- police Hammon was police, reporting the incident to the she filled ed), danger apparently in immediate but “battery out a affidavit” as follows: “Broke aid, seeking from She was Davis. our Furnace & shoved me down on the floor McCottry’s telling story past. about glass. into the broken Hit me in the chest immedia- present-tense statements showed lamps our & and threw me down. Broke Amy’s past cy; narrative of events up my I couldn’t phone. Tore van where in time from the my delivered at some remove daughter.” the house. Attacked leave Amy danger And after an- charged bat- she described. Id. Hershel was with domestic questions, her the officer’s he had tery violating probation. Id. At swered affidavit, testified, secured, order, execute an cannot be extra he cross-examination judicial establish events that have occurred statements are admissible as evi “[t]o previously.” demonstrably dence of their truth when straightforward ap “reliable” than more (brackets in original). Id. at 2279 The Court plication of our would nor rules of evidence judgment reversed of the Indiana Su- Sua, See, mally require. e.g., 92 Hawai'i at preme Court matter for and remanded the 70, 968; McGriff, P.2d at 987 76 Hawai'i at proceedings. further at consistent 2280. 789; Ortiz, 155, 360, P.2d at 74 871 Haw. at admissibility Staggs’ 4. The and Rich- of estimation, 845 P.2d In our following ards’ statements Craivford proceedings fairness of criminal would be and Davis significantly we to diminished were renounce conditioning in favor of Roberts admis fundamentally our own alters Crawford hearsay vaga sion of nontestimonial on the I, analysis of article section 14 the Hawaii of evolving ries of rules of evidence. Constitution. To the extent that our cases predicated admissibility have testimo We therefore reaffirm Roberts’ continued hearsay nial on conformance the now- with viability respect with to nontestimonial hear- “reliability” in abandoned test set forth Rob say. position with that Our accords of other erts, invalidates them. State v. Crawford Cf. rely jurisdictions that to continue Roberts Grace, 28, 107 Hawai'i 36 admissibility to test nontestimonial denied, 348, (App.2005), 107 cert. 113 See, e.g., statements. v. United States (2005) (“[Fjederal P.3d 799 constitutional Holmes, (5th Cir.2005) 406 F.3d 348 guarantees are absolute minimum consti (“With respect to nontestimonial statements protections tutional we criminal must afford place in leaves Roberts Crawford defendants[.]”). We un read to Crawford approach admissibility.”) to determining equivocally require admissibility that the (Footnote omitted.); Rivera, v. State 268 hearsay governed testimonial the fol (“[B]e- Conn. 844 202 A.2d hearsay lowing standard: where a declar- th[e] cause statement was nontestimonial in unavailability shown, ant’s has been the testi nature, application of the Roberts test re- monial statement is the truth admissible for appropriate.”); mains United States Hen- of the matter asserted if defendant (3d dricks, Cir.2005) 395 F.3d prior opportunity was afforded a to cross- (“[U]nless particular hearsay statement examine the absent declarant about ‘testimonial,’ qualifies inappli- as 68, 124 Crawford, statement. See 541 U.S. controls.”); cable Roberts still State v. S.Ct. 1354. Staten, 364 S.C. S.E.2d (“Because (S.C.Ct.App.2005) nontestimonial However, to the extent here, hearsay apply is at issue we the relia- hearsay question in statements nontesti- are bility Roberts[.]”); test of United States v. monial, places beyond them the reach Davis (2d Cir.2004) Saget, 377 F.3d of the federal confrontation clause. See (“Crawford approach leaves the un- Roberts Davis, (“It 126 S.Ct. is the testimoni respect touched to nontestimonial state- separates al character of the statement that ments.”). hearsay that, subject it from other to while evidence, upon hearsay traditional limitations settled, principles turn These thus we Clause.’’) is not Confrontation right whether Fields’ of confrontation was added.); Crawford, (Emphasis see also violated the circumstances of this case. (“Where S.Ct. U.S. nontesti- issue, wholly monial is at it is consis a. Officer Ke design tent with the Framers’ to afford the flexibility States development disposing their When Fields’ state con law[.]”). claim, we are apparently disinclined stitutional the ICA believed Haili, application alter our Crawford, Roberts to nontesti- and not was the rele hearsay. monial precedent. Roberts the com embodies vant The ICA concluded as fol that, principle monsense when face-to-face lows: Constitution, where, here, applying

When counterpart, implicated the Hawai'i is not Haili, (2003), 79 P.3d 1263 trial declarant attends and is Crawford, 541 U.S. 124 S.Ct. cross-examined about his or her out-of- (March 8, 2004), applicable prece is the concluding, court statement. so we note applies dent. Haili the rule of Roberts. that the confrontation clause contained with- objected If counsel Fields had I, in article section 14 of the Hawai'i Consti- [Staggs’] prior introduction of testimonial virtually tution is identical to the confronta- ground statement into evidence on the tion clause of the sixth amendment guaranteed violated the to Fields United States Constitution.9 See discussion by the confrontation clause the Hawai'i supra at n. 7. the following We thus find Constitution, objection would have language Crawford, delineating scope validly lacked merit and could have been clause, compel- of the federal confrontation denied. ling: — - opinion, slip op. The ICA’s at at that, [W]e reiterate when the declarant —-, However, P.3d at -. it is trial, appears for cross-examination at the that, interpreting fundamental when our own places no Confrontation Clause constraints constitution, divergence our from federal in at all on the use of his testimonial terpretations of the United States Constitu Green, statements. See v. 399 California convey protection tion less than the 1930, 149, 162, U.S. 90 S.Ct. 26 L.Ed.2d Richie, federal standard. See v. State 88 10].... (1970).[ 489 The Clause does not (1998) 1227, Hawai'i 960 P.2d 1250 long bar admission of a statement so as the (“However, departing when from the federal present declarant is at trial to defend or standard, provide court at must least explain it. protection required by minimum level of 9, Crawford, 541 n. 124 S.Ct. U.S. 60 1354. interpretation federal of the United States Constitution.”); Quino, 161, State v. 74 Haw. Crawford, despite its rules re absolute (1992) 170, (“[W]e 358, 840 P.2d 362 acknowl stricting admission of an absent declarant’s edged long that afford as we defendants ‘[a]s statement, no room for doubt leaves protection required by the minimum federal that the federal confrontation clause is not interpretations of the Fourteenth Amend of an concerned with admission out-of- Constitution, ment to the Federal we are appears court statement where the declarant interpreting unrestricted the constitution at trial and cross-examined about that ”) greater protection.’ of this state to afford jurisdictions interpreting statement. Other (Some original.) added brackets and some foregoing excerpt reached have similar Texeira, 138, (Quoting State v. 50 142 Haw. State, conclusions. See Robinson v. 271 Ga. (1967).). 2, 593, n. 597 n. 2 584, 194, (“Here, App. 610 S.E.2d 197

Nevertheless, because the witnesses were at trial agree we with the testified, apply.”); and does not ICA’s ultimate conclusion that Fields’ consti Crawford Tester, 215, A.2d 221 tutional of confrontation not violat State v. 179 Vt. 895 was (2006) (“Crawford inapposite 2 n. because ed the circuit court’s admission of trial.”) (Citing grounds statement to Officer Ke on the that testified [the declarant] clause, Crawford, Hawaii’s confrontation like U.S. at n. 124 S.Ct. its federal 541 60 Green, Although recognize may, Supreme 9. we we under United States Court stated, Constitution, part, give protection relevant as follows: Hawai'i broader Finally, than that tion, the United we note that none of our decisions afforded States Constitu- Sua, interpreting requires the Confrontation Clause see 92 Hawai'i at 73 n. excluding- the out-of-court statements of wit- (stating 971 n. 8 that "this court will not hesitate testifying available and at trial. ness who is protections extend the of the Constitu- The concern of most of our cases has been ]”), beyond standards[ tion federal that maxim precisely opposite focused on situation- justify does not the construction of constitutional been situations where statements have admit- appropriate. barriers where none are To do so and ted in the absence of the declarant any without expand protections here would of Hawaii's him at trial. chance to cross-examine beyond purpose. confrontation clause its Green, 399 U.S. at 90 S.Ct. 1930. 1354.); Johnson, complex. People Ill.App.3d apartment Id. Robinson retrieved v. gun 300 Ill.Dec. 845 N.E.2d and fled. Id. Milo then drove Shaw (2005) (“Here, hospital. victim trial Both testified at Id. Shaw Milo such, identifying provided was to cross-examination. As statements Robinson shooter, picked none of the statements admitted ... were each man Robinson’s improper Crawford.”); photographic lineup. out of picture under v. Cor State bett, However, trial, 281 Kan. Shaw Milo exhibited (concluding preclude memory did not losses on the witness stand: depositions Jenny- pretrial admission of they Both witnesses testified were Miller, Bryan Williams and that contradicted incident intoxicated when the occurred. testimony, their trial “because both Williams being lineup, Milo admitted shown the re- and Miller were available cross-examina out, picked he membered someone and tes- trial”); tion and testified Commonwealth signed lineup tified he form. He Ruiz, Mass. N.E.2d any not recall other could relevant facts (2004) (“The n. argue defendant does not concerning except the incident that Shaw spontane that admission of [the declarant’s] transported shot and that was he Shaw ous utterances constituted violation hospital. He first testified that he principles Here [the stated ]. Foster, [Crawford talking remembered to Detective subjected at trial and declarant] testified stated, shortly he but afterward “I don’t We, therefore, to cross-examination. do not certain, remember him.” He even impact need to address what though, that “tell him anything.” he did not Crawford might sponta case have on admission of testified that did not Shaw he know who by persons neous made utterances who do him, speak shot that he did not know or State, testify.”); not v. Gomez S.W.3d Foster, that he Detective and did not talk (“The (Tex.Ct.App.2005) [the fact that de- to Detective Johnson. He did not remem- Appel testified and was clarant] available lineup being signing or ber shown a lant cross examine her makes lineup form. Crawford here.”); State, inapplicable Mumphrey v. Id. at n. (Tex.Ct.App.2005) S.W.3d Georgia Appeals The Court of held that (“[The testified at trial. There declarant] and prior the admission Shaw’s Milo’s fore, by raised concerns the recent deci police statements made to the did not violate Supreme sion States Court in United right Robinson’s of confrontation under the case.”). are not relevant in ] [Crawford sixth amendment to the United States Con- Inasmuch as the dissent issue with takes stitution: cases, the afore-referenced we now discuss authority Robinson asserts the of Craw- length. doing, them at In so we find Robin- Washington, 541 U.S. 124 S.Ct. ford and particularly persuasive son Tester inas- (2004), support L.Ed.2d 177 much as the declarants in those Crawford, contention. But in prior his memory cases claimed losses at trial. improperly admitted was that of testify who did not at trial wife because Robinson, (“Shaw”) Rodney Shaw Washington privilege of a state marital (“Milo”) Thomas Milo were at a when café barring testifying her from without her (“Robinson”) Aunterio Robinson entered. husband’s consent. The United Robinson, States Su- 610 S.E.2d 195. Robinson be- preme Court held that her admission of aggravated pay- came when Shaw demanded prior statement violated the Confrontation ment a debt Id. Not owed Robinson. held, explicitly Clause. The Court howev- trouble, wanting Shaw and Milo left the café er, that proceeded gas Robin- to a station. Id. fight appears son followed them and a fist ensued. when the declarant for cross- trial, During fight, pulled Id. Robinson out a examination at the Confrontation gun places and shot twice. Id. Shaw Milo wrestled Clause no constraints at all on the gun away prior from Robinson and threw The use statements.... nearby neighboring and into a over fence Clause does not bar admission of a state- her, long ment so as the declarant is but testified that she did not know explain trial it. he had defend The how touched her. Clause also not bar does the use of Id. at 220. for purposes testimonial statements oth- brief, pro argued In a se Tester that D.T.’s establishing er than the truth of the out-of-court should statements have been ex- matter asserted. they right cluded because violated his (Citations guaranteed confrontation omitted.) sixth punctuation Id. at amendment States United Constitu- n. 124 S.Ct. 1354. On the other tion, interpreted by as Id. at 221 hand, statements of wit- Crawford. “testimonial Supreme n. 2. reject- Court of Vermont nesses absent from have been trial admit- argument, stating ed that only ted declarant where the is unavail- “Crawford inapposite because D.T. testified at trial.” able, where defendant has Id. had a opportunity to cross-examine.” (Citations omitted.) and footnote Id. Here, Tester, inas declarant— despite degree memory some loss—testi- Here, pres- because the witnesses were fied at trial and cross-examined. Ac- testified, ent at trial and does Crawford cordingly, supports proposition Tester apply. not Robinson’s confrontation analysis that the applicable is not was not violated. out-of-court statements to Officer original). (ellipses Ke. Although backgrounds the factual Robinson, bar, In the ease at remaining parallel cases do the facts extent, reluctant witness to an testified de- bar, presented in the the principles case spite claiming memory loss as to material espoused in per- those are cases nevertheless Furthermore, alleged elements of the crime. suasive. neither nor the declarants in Johnson, (“Johnson”) In subject Johnson Robinson testified as to the matter Glenn guilty was prior aggravated found counts of their out-of-court statements. Insofar two Johnson, criminal sexual abuse. 300 Ill.Dec. as the thus Robinson court concluded that 756, 845 N.E.2d at 648. victim was similarly inapplicable, was we are Craioford yeai’s twelve old at time and the suffered persuaded that result the same should be “mental, vision, speech, from language and reached here. impairments.” Id. Tester, Tester, (“Tester”) In Dwight Sr. providers Johnson was one of the care aggravated was convicted of offense of assigned victim, to the and had contact with Tester, assault. sexual A.2d at 220. eight separate the victim on occasions. Id. (“D.T.”) daughter reported Tester’s had resigned at 648-49. Johnson then from his therapeutic her mother that foster “she had Thereafter, position. Id. at 649. the victim bed, sleeping blow-up been and she provider told another that care he wished heard enter room. [Tester] [Tester] provider. that Johnson his care was still Id. bed, vagina.” knelt touched and her why, responded When asked the victim that repeated allegations Id. at 218. She her to a they together.” fun things “did Id. After Department of Social and Rehabilitation Ser- questioning, further the victim related that police official vices and a detective. Id. At Johnson “licked and that his asshole” John- trial, however, degree some she claimed son had “bubbles in his ass.” Id. The vic- memory loss: informed, following tim’s mother and the was conversation ensued: She stated that had hurt her. [Tester] how, mother, When asked testified that she did she pointing The victim told while his acknowledged area, not remember. D.T. that genital at his licked [Johnson] therapeutic she had told foster moth- him. provider] explained [her care [The vagina. touched her him er] had the victim had told [Tester] [Johnson] She reiterated that had touched “licked his The victim’s asshole.” mother [Tester] Code of 1961 at the time the act was

asked the victim to show her what his committed, is, following evidence shall pointed to his asshole and the victim exception be admitted as an penis. The victim’s mother asked the vic- rule: penis, tim if he meant his and the victim yes. testimony by The victim also said that

said the victim of an out of pulling defendant was on the defendant’s that he court statement made victim another; penis complained and that stuff came out. or she of such act to foregoing also related the The victim (2) testimony of an out of court state- police investigator. Id. at 650. describing any ment made victim trial, testified, in At the victim relevant complaint of such act or matter or detail part, as follows: pertaining any act is an element which way that on the The victim testified his of an offense which is the of a house, stop uncle’s the defendant would prosecution physical for a sexual or act car, unzip pants, pull unbutton or against that victim. underwear, pe- and stick out his down his appeal, argued On Johnson that In re nis. The defendant would move his hand E.H., Ill.App.3d 291 Ill.Dec. up penis on his and bubbles and down Comp. N.E.2d 1029 held that 725 Ill. out. would come The defendant would unconstitutional, Stat. based 5/115-10 wipe napkin. then off bubbles upon Supreme the United States Court’s de- The defendant would then do the same to Johnson, cision in 300 Ill.Dec. Crawford. pants, pull unbutton his down victim: 756, 845 N.E.2d at 655. The Illinois Court underwear, squeeze victim’s however, Appeals, held that penis. victim’s The victim saw bubbles inapplicable: penis. they come out of his After that Crawford, Supreme Court held that went to the victim’s uncle’s house. Howev- testimonial forms of are evidence er, the did not tell his uncle victim about finding absent a inadmissible of unavaila- the incident. bility to cross-examine The victim further testified that a simi- Crawford, the witnesses. 541 U.S. at 53- lar incident occurred when he and the 124 S.Ct. at 158 L.Ed.2d at parking defendant were in a lot. In the However, ap- when “the declarant parking they stop, lot would and the defen- trial, pears for cross-examination at pants dant unbutton the would victim’s [cjonfrontation [cjlause places no con- pull The defendant down his underwear. at all on straints the use of his testi- penis. held the The defendant victim’s Crawford, monial statements.” 541 U.S. at then took the victim home. The victim 59 n. 124 S.Ct. at 1369 n. 158 L.Ed.2d anybody testified that he did not tell be- words, n. In 9. other when a child him cause the defendant told not to and appears sex abuse at trial victim and is (the victim) in because he would have been subject cross-examination, any prior trouble. being pur- statement of the victim offered Id. at 652. suant to section 115-10 of the Code is a People Sharp, Ill.App.3d nonevent. The out-of-court victim’s statements were 292 Ill.Dec. 825 N.E.2d 706 Comp. Ill. pursuant admitted to 725 Stat. (2005). (West 2002), reads, Ann. in which 5/115-10 Here, pertinent at trial part, as follows: victim testified and was to cross-examination. As § hearsay exceptions. 115-10. Certain such, pur- none of the statements admitted (a) prosecution physical In a for a or sexu- improper suant to section 115-10 un- were perpetrated upon against al act or a child der Crawford. age person or a a under the who was (brackets original). in Id. moderately, severely, profoundly men- (“Corbett”) Corbett, tally person retarded as defined in this In Corbett Trever was degree pre- Code in Section 2-10.1 of the Criminal convicted of the offense of first and Crystal seeing outside of Ca- testified about Corbett meditated murder of his ex-wife Corbett, sey (“Crystal”). Crystal’s apartment morning at 1185. she was Id. at 1188. murdered. Crystal August Corbett 1995. married They Id. December 1996. Id. divorced appeal, argued that the trial On Corbett husband, Crystal married her second Shane transcripts from admitting court erred (“Shane”), Casey September Id. depositions. Id. The Williams’ Miller’s 26, 2000, Crystal’s morning On the of June Kansas, however, held Supreme Court of part-time Crys- to find roommate returned testimony that the admission of of wit- body lying apartment. Crys- Id. tal’s her testify precluded at trial not nesses who was (“Williams”) neighbor, Jenny tal’s Williams 60-460(a) § or the either Kan. Stat. Ann. walking apartment complex around the Supreme decision in United States Court’s (“Miller”), boyfriend, Bryan her Miller with Supreme The Court Id. at 1189. Crawford. approximately morning 1:30 A.M. on of Kansas stated Crystal murdered. Id. at 1186. apply does not because both partially a clothed man Williams observed for and Miller were available Williams doorway Crystal’s emerging from the and testified at trial. cross-examination carrying pile laundry. Id. apartment 60-460(a), language The in K.S.A. which thought recognized the man as Williams she application to “a limits the of the statute greeted him. man Corbett and Id. The did hearing person present at the who is respond. Upon learning Crystal’s not Id. cross-examination,” specifical- for available death, po- and Miller contacted the Williams right to con- ly protects the defendant’s Bailey, lice. Id. Erin one of Williams’ person to be by requiring frontation actu- friends Williams that she had convinced trial. for cross-examination available Shane, ally seen because Corbett was 60-460(a) application K.S.A. ex-husband, Crystal’s marriage “nice” application negates the of Crawford. tumultuous. Id. with Shane was Id. at 1189-90. pho- police presented The Williams with (“Juan”) Ruiz, Juan Ruiz was convicted pic- tographic lineup that included Shane’s degree for of the offense of first murder ture, picture. not Corbett’s Id. but (“Car-men”). wife, killing Carmen Ruiz Shane, but she select- Williams did know Ruiz, 817 N.E.2d at 774. lineup. picture ed his from the Id. had been married Juan Carmen line- police approached Miller with the same Id. years and had four children. fourteen initially up. Id. Miller did not select Often, An- Carmen’s friends and co-workers photograph, police and the accused Miller Anthony Matos gel Negron (“Negron”) and him smoking marijuana and ordered to re- (“Matos”) at the drink and socialize would spoke time. Miller then turn at a later Id. During the summer of Ruiz home. Id. Williams, informed Miller of which who Negron. Carmen had an affair with Miller photograph she had selected. Id. that he Eventually, Juan told Carmen Id. police subsequently met with the and select- home. Negron and Matos at his did not want lineup. picture from the ed Shane’s house. August, out of the Id. In Juan moved appeared and Miller later 1186-87. Williams Id. reaffirmed depositions at which Williams Miller, identification. Id. at 1187. how- her Matos September Negron and On ever, thereafter ex- recanted. Id. Williams Juan entered at the Ruiz home when were photograph- pressed about her own concerns and Juan premises. Id. at 775. Carmen Id. ic identification. Negron was argued in the kitchen while proceeded to Id. Juan January police approached bathroom. In pounded on the door demand- photo- and Miller a second bathroom and Williams they talk. Negron out so could containing pictures ing of both come graphic lineup approached and stated Juan Both and Id. Matos Corbett and Shane. Id. Williams Id. Juan they looking for trouble. were not picture Corbett’s from Miller selected in the by stabbing Matos six times trial, responded lineup. At and Miller Id. Williams chest and abdomen. Id. Juan then attacked wanted to talk and that he “did not multiple and her responding Carmen stabbed times intend to hurt her.” Id. The During trial, the torso. Id. his attack on Car- police officers also testified at men, twelve-year-old daughter opened Juan’s what Perez related to them about the inci- stabbing her bedroom door and Juan saw question. dent Id. at 88. Carmen. Id. She went back into her room Appeals rejected The Texas Court of Go- police. and called the Id. Juan his saw mez’s claim that his confrontation daughter phone on the ran out of the violated, as follows:

house, vehicle, got away. into his and drove (“Officer Lavita”) Id. Officer Maria Lavita us, In responding the case before [the arrived at the Ruiz home and found Carmen testified about officers] statements lying porch, bleeding on the but conscious. victim, made to them the Perez. How- Id. at 777. Officer Lavita also found Juan’s ever, testified, Perez also had [Gomez] daughter, visibly upset, and asked her what to cross examine her three stated, happened. daughter “My Id. Juan’s separate times. The fact that Perez testi- my father did this to mother.” Id. She then fied and was available for to cross [Gomez] stabbing. described the Id. inapplicable examine her makes Crawford trial, daugh- At the court admitted Juan’s here. spon- ter’s out-of-court statements under the Id. at 90. exception taneous utterances to the exclu-

sionary hearsay rule. Id. Mumphrey, Ray Mumphrey In Johnifer (“Johnifer”) perpetrating was convicted of Supreme Judicial Court of Massachu- Reedy (“Reedy”), assault on Theresa a mem- ruling, agree- setts affirmed the trial court’s family Mumphrey, ber of his ing daughter’s household. Juan’s statements were properly spontaneous 155 S.W.3d at 655. admitted as utterances. principles Id. The court also noted that the According testimony to the trial implicated forth in set were not Crawford officer, responding police Deputy Sheriffs daughter because Juan’s testified at trial: Craig Strickhausen”), (“Deputy Strickhausen argue The defendant does not that ad- Reedy informed him that Johnifer came over daughter’s] spontaneous mission of [Juan’s to her residence and asked her for some utterances constituted violation of the money. Id. 657. When she refused he principles Here, stated in [Crawford]. followed her into the house. Id. re- She daughter] testified at trial and [Juan’s treated to her against bedroom and leaned subjected We, to cross-examination. door, way but he forced and as- therefore, do not need to address what by striking her saulted her in the face and in impact might ease have on Reedy the back and neck areas. Id. also spontaneous the admission of utterances testified, stating that Johnifer “struck her by persons testify. made do not who through several times chased her n.

Id. 778 5. give house because she had him refused to Gomez, police In dispatched officers were money.” Id. at 658. they to a local convenience store where en- appeal, On Appeals the Texas Court of crying hysterical countered a Carmen (“Perez”). Gomez, held that the trial properly Perez court admitted 188 S.W.3d at 88. Deputy testimony regarding Perez Strickhausen’s told the officers that she had been Reedy’s ex-boyfriend, assaulted her out-of-court Mario A. Go- statements under the (“Gomez”). exception mez excited Perez was a reluctant utterances to the exclusion- witness, ary hearsay footnote, ultimately but “she rule. Id. at testified about early morning “Reedy of the court events October also stated that testified at 2003.” Id. Therefore, She testified that Gomez by wanted trial. the concerns raised to talk scrapes by to her and that she received recent decision the United States Su- preme when he tried to force her into his vehicle. Court are not rele- [Crawford] stated, however, Id. at She 89. that Gomez Id. at 657 n. 1. vante.]” cases, factually These while by somewhat dis- subsequent testimony was belied her on similar, unifying share one theme: cross-examination. able to recall (1) preclude does not prior present during admission of a Richards was incident, (2) out-of-court statement where the tr. during de- 7/29/02 clarant is incident “laying cross-examined at trial she was on about the [Fields’] [surf- positioned out-of-court while it statement.11 “between the board” table and the chair” and that she threatened concept That is not a novel one. For even to sit on it and break if Fields left the jurisdiction’s under this version of the Rob- premises. Tr. at 11. She further 7/29/02 analysis, erts sufficient cross-examination of testified, cross-examination, that her declarant at trial terminated the memory portions loss as to other inquiry. Sua, See 987 P.2d incident could have been caused the fact (“Both at 975 Kaowili and Puahi were cross- that she drank “a evening lot” of beer on the respect prior examined with to their inconsis- of question. the incident in Tr. at 10. 7/29/02 tent statements.... It therefore follows that Fields’ counsel then terminated the cross- the substantive use of these statements did examination, having asked a handful of infringe upon not Sua’s of confronta- questions occupying pages less than two tion.”); Clark, State v. 83 Hawai'i transcript. Tr. at 10-11. Given the 7/29/02 (“Because (1996) 926 P.2d the wit- foregoing, oppor- we do not think that Fields’ cross-examination, ness is the sub- tunity for cross-examination was insufficient. stantive prior use of his [or her] inconsistent provided The trier of adequate fact was statement infringe does not the sixth amend- credibility information to test the and veraci- ment rights confrontation accused crim- ty Staggs’ prior statement insofar as it cases, Green, inal see 399 U.S. California (1) reasonably could have inferred that (1970).”) S.Ct. [90 26 L.Ed.2d 489] Staggs’ drunken prior state rendered her Eastman, (Quoting State v. unreliable, statement inaccurate or and/or (citing commen- Staggs was innocent victim but an (1993)).) tary (Brackets to HRE Rule 802.1 aggressive who, participant in the incident Owens, original.); 484 U.S. at Fields, angry gave while a false statement (“The dangers S.Ct. 838 associated with police. certainly oppor- Fields had the hearsay inspired the Appeals Court of in the tunity develop those theories and cast present case to believe that the Constitution Staggs’ doubt on earlier out-of-court state- required testimony to be examined for ment, voluntarily but declined to do so reliability,’ ‘particularized ‘indicia ... or terminating the cross-examination. More- guarantees trustworthiness,’.... We do over, memory Staggs’ the fact of loss further inquiry not think such an is called when permitted the trier of fact to test the truth of declarant is at trial and prior her out-of-court statement. See Ow- cross-examination.”) subject to unrestricted (“It ens, 484 U.S. at 108 S.Ct. 838 added.). (Emphasis opportu- sufficient that the defendant has the Here, Staggs memory nity bring claimed loss out such matters as the witness’ bias, as to her statement on direct examina his lack of [or her] care and attentive- prosecution. ness, tion Tr. at 8-9. poor eyesight, and even [or her] 7/29/02 Indeed, (what she claimed that prime objective she could not even cross- often examination, question. remember the incident Wigmore, Tr. 3A see J. Evidence cross-examination, however, (J. rev.1970)) § at 8. pp. On 931-932 Chadboum 7/29/02 willingly informatively responded very she that he [or she] has a bad fact virtually added.). questions posed by Therefore, all of the memory.”) (Emphases Fields’ counsel. Tr. at 10-11. Her we hold that the earlier admission of out-of- 7/29/02 claim that she could not recall the incident court did not violate Hawaii’s con- Although the dissent claims these cases confrontation clause is not with the concerned distinguishable, are the factual dissimilarities admission of where out-of-court statements highlighted by nothing appears the dissent do to under- declarant and is cross-examined about underlying mine the that the rationale federal those statements at trial.

524 af- an for prosecution’s frontation clause inasmuch as Fields was witnesses and occasion opportunity a to cross-ex- jury weigh forded sufficient the the demeanor of those Staggs prior Ortiz, her at amine about statement (citing v. 74 witnesses.” Id. State (cit trial. 547, P.2d Haw. ing Rodrigues, Haw.App. State v. meaningful oppor a Insofar as Fields had (1987))). These founda cross-examination, tunity for the fo dissent’s preserved tional an ac interests are where “unavailability” paradigm cus on the is mis opportunity cused is afforded the to cross- dissenting placed. opinion, See at examine, thereby challenge and the credibili (“[Disagreement the ma P.3d 999. with ty veracity of, and a declarant re jority unavailability require on rests the garding prior ment[.]”). his or her out-of-court state “unavailability” paradigm The has Wigmore ment. 5 J. on alternatively See Evidence been referred to as the “rule of (Chadbourn 1974) (“The Lee, 267, § necessity.” at 154 See State rev. (“First, right satisfaction of the of cross-examination preference disposes any objection conformance the Framers’ based on the confrontation, confrontation.”); Owens, for face to face the right [confronta so-called necessity. a tion establishes rule of clause] (stating 484 U.S. 108 S.Ct. 838 (including pri- In the case cases where usual “a seeking that defendant to discredit a for occurred), pros or cross-examination has getful expert ammuni witness is not without produce, ecution must either or demonstrate tion, jury may persuaded since the that of, unavailability the declarant whose memory!,]” opinion his is as unreliable as his against statement it wishes to use the defen that is sufficient that the defendant “[i]t dant.”) Roberts, (Citing 448 U.S. at opportunity bring has the out such mat 2531.) (Brackets original.) S.Ct. The bias, ters as the lack care witness’ his necessity” “rule of is so named because it attentiveness, poor eyesight, and even imposes prosecution a burden on the to dem (what prime objective is often a of cross- necessity introducing prior onstrate the examination, Wigmore, see 3A J. Evidence by demonstrating out-of-court statement (J. rev.1970)) § pp. 931-932 Chadbourn “unavailability” of the declarant at trial. very memory.”) fact that he a bad has constitutionally term, “un infused omitted.) (Citations (Quotation marks omit available,” means the declarant is “un ted.). foregoing, Consistent with the ac we prosecution available” as witness for knowledge that the dissent is correct to the here, inquiry trial. But that is not a relevant concluding extent that it accuses us Staggs’ “unavailability” insofar as has been Staggs’ was available cross-examination. for conclusively established her claimed loss dissenting opinion, See P.3d at obvious, memory. intuitively As is holding 1000. Our had a Fields suffi whether, given matter turns on opportunity Staggs cient to cross-examine circumstances, Fields was afforded mean about prior matter of her out-of- ingful opportunity Staggs to cross-examine necessarily court implies our ac about her out-of-court statement.12 ceptance proposition Staggs of the was point protections guar The here is that the physically present thereby at trial and avail anteed confrontation Hawaii's clause have emphasize, able for cross-examination. We fully been afforded to accused where however, Staggs that we do not conclude that hearsay declarant attends trial and is cross- constitutionally was “available" as a witness prior hearsay examined about the statement. prosecution finding because that explicit right conferred both the state precluded by memory, her claimed loss of right and federal confrontation clauses is the accordance with Sua. to “confront adverse witnesses.” Id. at foregoing, “The of confrontation Given the the dissent’s discom- opportunity application affords the both fort accused with our of Sua is unwarrant- (“Gooman”) credibility Sua, challenge veracity ed. Jonah Gooman However, us, acknowledge 12. We the dissent’s view that insufficient. record before simply disagree. respectfully Fields’ to cross-examine we ” driving “guarantees an automobile in which AJomalietoa Id. found such thiness.’ We (“Sua”), (“Kaowili”), trustworthiness,” Cory Sua Kaowili and of as follows: (“Puahi”) passengers. Trent Puahi were First, grand jury we note that Gooman’s Sua, at at Hawai'i 962. Sua Second, testimony given under oath. money victim, believed Gooman owed sum of personal as the Gooman had direct brother, Third, his and demanded that Gooman knowledge of the relevant facts. relinquish money. Id. Gooman noticed Gooman exhibited no reluctance “fiddling” gun. Sua with a Id. Sua contin grand jury proceeding implicate Sua. money Fourth, ued to demand the and struck Goo- relationship Gooman bore no man in gun. government the head with the butt of the that would have benefitted produced testify hoping against Finally, Id. Kaowili him to Sua. Goo- $120.00 inculpatory Sua would “back off.” Id. Sua thereafter man never recanted his testi- 23, 1997, July mony expressed regard- exited the car. Id. On Sua belated views fact, trial, accuracy; ing its at Sua’s committing was indicted for offense trial, degree robbery. Id. At Gooman testified that he was able to testi- first Puahi fy jury “fully testified, grand accurately.” at the they making Kaowili but denied trustworthiness, Given 64-65, these indicia of we police. at statements Id. say cannot that the trial court abused its P.2d at 962-63. Gooman also testified admitting grand discretion in Gooman’s trial. Id. at 987 P.2d at 963. When jury testimony into evidence. testimony previous asked about his before grand jury, that he he claimed could Id. at 987 P.2d at 972. objection, remember. Id. Over the circuit following subsequently We cited the ex- jury grand testimony court allowed Gooman’s States, cerpt Carey from v. United A.2d 65-66, jury. to be read to the Id. at (D.C.1994): at 963-64. for was available cross-ex- [The witness] 30, 1997, amination trial coun- jury [the defendant’s] On December found Sua Indeed, sel. he did her at cross-examine guilty charged. as 987 P.2d at 965. trial about her failure to remember 30, 1999, August On the Intermediate Court night murder. events of the “The Appeals judg- vacated the circuit court’s weapons impugn the available to witness’ ment of conviction. Id. at 987 P.2d at memory statement when loss is asserted September prose- 965-66. On success, always will course not achieve application cution filed for writ of certio- blit cross-examination is not the rari, accepted. which this court Id. at successful [Owens, guarantee.” constitutional 987 P.2d at 966. Though 838.] 108 S.Ct. U.S.] 560[ [the appeal, applied jurisdiction’s On we may not trial counsel have defendant’s] version of the Roberts test to Sua’s claim that been able to cross-examine [the witness] grand jury the admission of Gooman’s testi- liked, he have our review of the would mony “past as a recollection recorded” violat- nothing giving record rise the [sic] reveals right ed his constitutional of confrontation. deprivation appellant’s constitutional Id. at 987 P.2d at 968. We first conclud- right of confrontation. “ ed that Gooman was ‘unavailable’ virtue (em- Sua, memory.” of his loss of Id. at added) (brackets phasis original) (citing Turning prong to the second of the 59). Carey, 647 A.2d at analysis, Roberts this court concluded that grand We thus concluded that Gooman’s prior grand jury testimony Gooman’s consti- testimony jury requirements met both recorded,” “past tuted a recollection thus Roberts test and that Sua had sufficient “firmly hearsay excep- fell within a rooted opportunity cross-examination: “highest tion.” Id. To ensure the standard matter, Similarly, protection of Sua’s constitution in the Gooman confrontation,” grand jury proceeded analyze made assertions before the we memory at grand jury testimony later claimed a loss of trial. whether Gooman’s provided with the ‘particularized guarantees “bore of trustwor- Sua was Therefore, regarding Carey him cross-examine Gooman would deem available. loss memory. as purported independent grounds,’ Inasmuch Gooman’s the ... ‘two of grand jury testimony met require- both by the asserted cannot coex test, ments the Roberts and Sua ist.”) (Some was original ellipses and some of able to regarding cross-examine Gooman added.). position unpersua The dissent’s alleged his to the remember inci- failure sive the because confuses semantic state dent, say we cannot that the admission of ment “available for cross-examination” with grand jury testimony Gooman’s violated constitutionally the infused statement “avail right Sua’s to confrontation. prosecution.” able a the as witness for The added). “unavailability” (emphases paradigm at 987 P.2d at 973 was not issue Carey. Carey court made foregoing the reading A fair of Sua indicates that this analyzing statement in the of context wheth rejected court Sua’s confrontation clause ar er opportunity the accused had sufficient gument independent dispositive, on two cross-examination, for the declarant’s loss (1) coequal grounds: both prongs but of the memory notwithstanding. Thus, Carey (2) met; Roberts test were Sua had a forgetful court’s statement that the declarant opportunity sufficient for cross-examination. implies “available for cross-examination” Sua, See 92 Hawai'i at nothing as it would not (“Inasmuch to whether or would grand jury as Gooman’s testimo forgetful have determined wit whether ny requirements met both of the Roberts constitutionally (i.e., test, ness was “unavailable” and Sua was able cross-examine Goo- regarding prosecu man his failure remember “unavailable” as a witness for ). alleged incident, say contradictory cannot that tion suggest we the ad It is not grand jury mission of testimony Gooman’s constitutionally a witness be “unavail (Em confrontation.”) right violated Sua’s prosecution by able” as a for the witness added.). phasis virtue of that witness’ claimed loss memo ry prior at trial as to a out-of-court state interpret To the conclusion that Sua ment, simultaneously yet semantically “avail able to regarding cross-examine Gooman able for cross-examination” as result of alleged his failure to remember the incident physical presence witness’ on the witness fact,” aas mere “circumstantial as the dis stand.13 Sua is consistent with that distinc suggests, dissenting opinion, sent see tion, alia, holding, inter Gooman was 1006, ignores Sua’s citation of constitutionally “unavailable” for as witness Carey, swpra. discussed The dissent be prosecution by virtue his loss of memo interpreted that Sua lieves cannot as ry, and Gooman was nevertheless seman adopting Carey’s forgetful conclusion that a tically available vir for cross-examination declarant was nevertheless “available for physical trial, thereby tue of presence his cross-examination,” Carey, 647 A.2d at providing opportunity an Sua with to cross- inasmuch as that conclusion would be incon examine Gooman. Sua concluded that holding that a sistent Sua’s witness who grand jury “[i]nasmueh as Gooman’s testimo memory claims a loss of at trial as to a ny requirements met both of the Roberts constitutionally out-of-court statement is “un test, able and Sua was to cross-examine dissenting opinion 554, 168 available.” See regarding Gooman to remember (“If P.3d at 1006 considered other than a failure alleged incident, say we cannot that the majority proposes, circumstantial fact as grand testimony jury admission of Gooman’s Carey contradictory would be of Sua II’s Sua, violated Roberts, right Sua’s to confrontation.” formulation because Gooman’s memory (emphasis loss made him unavailable Hawai'i at P.2d at for con added). purposes frontation same facts that situations, here, testimony such as is the case to elicit the witness’ dispositive question becomes whether the wit- subject to the matter statement on cross- can ness the nevertheless recall the matter of trial, examination at accused's con- statement, notwithstanding the loss of memo- frontation has been satisfied. ry as to the If statement itself. the accused has Additionally, it,” 9, 124 analysis explain the dissent’s defend or at 60 n. Crawford wrong added)—as because it misconstrues the S.Ct. stating opinion attempt conjure disparity analysis clause confrontation does jurisdiction’s

with this confrontation clause apply long so as the declarant is available wit, jurisprudence. To the dissent claims explains at trial. cross-examination This that, Crawford, under a declarant is “unavail- opposition application to our dissent’s purposes able” for confrontation clause principle previously case. As stand, if she he or never takes the and thus mentioned, the dissent takes the federal our endorsement of on una- view Crawford’s phrase the courts’ use of “available for cross- vailability directly jurisdic- contradicts this to constitutionally examination” mean “avail “unavailability” tion’s view as set forth “unavailable”). (i.e., Thus, able” dis not the dissenting opinion, Sua. See at application sent that an believes of Crawford (“Pursuant Crawford, at 1016 to declarant a here mandates the conclusion that pur- is ‘unavailable’ for clause confrontation constitutionally despite “available” the poses only if he or she takes the never memory fact that her loss would her render stand.”). However, not state does Crawford constitutionally See “unavailable” under Sua. constitutionally declarant that a is “unavail- dissenting opinion, at only if present the able” declarant is not Indeed, provides trial. the no dissent cita- contrary, To the we read the federal proposition. tion that for What phrase courts’ of the use “available for cross- Crawford say, i.e., Clause[,]” is that does the “[t]he taking step as an examination” intermediate analysis, confrontation clause “does not bar conclusion that had towards the the accused of a as long admission statement so the de- meaningful a to a cross-examine present explain is clarant at trial to defend physically pres- declarant who was it.” at 60 n. 124 S.Ct. 1354. trial; establishing ent at not as the declar- Thus, gleaned appropriate principle the is (i.e., “availability” ant’s constitutional lack analysis that the confrontation does clause “unavailability”) as a prosecu- witness for the apply prior not exclude a out-of-court supra. tion. dis- See discussion It is the physically statement where a declarant is phrase, sent’s substitution of erroneous the it[,]” present explain at trial to “defend or cross-examination,” the “available for with a presence not that declarant’s phrase, prosecu- “available witness for the trial the declar- mandates conclusion that tion,” foregoing appearance that creates (i.e., constitutionally not ant is “available” incompatibility. “unavailable”). Finally, the dissent claims that have we misapprehension The dissent’s of Crawford “unavailability” paradigm retained with equation again improper demonstrates its respect to nontestimonial situations “unavailability” paradigm the constitutional present excluding the out-of-court state- inquiry hearsay declar- whether the with purview of ment from the Hawaii’s confron- physically present ant is and available preserve failed to tation clause we have the dissent be cross-examination. Because “unavailability” paradigm respect tes- with “unavailability” para that the federal lieves situations, creating timonial thus anoma- digm asks whether the declarant' is available Dissenting opinion, lous result. trial, consequently it for cross-examination However, contrary 168 P.3d at 1007-1008. physi concludes declarant’s assertions, have extin- dissent’s we not presence cal at trial declar- establishes guished “unavailability” requirement (i.e., with “availability” lack ant’s of “unavailabili Ha- Thus, respect situations. to testimonial Under ty”). the dissent translates Crawford’s clause, confrontation if an out-of-court confronta waii’s statement footnote 9—that the testimonial, subject it is analysis the admis is tion clause does not bar- (1) analysis, “so which mandates that sion of out-of-court statement Cratvford (2) “unavailable,”14 the declarant at trial the witness be long as is paradigm jurisdiction's "unavailability" note that the embedded within version 14. We prior opportunity (stating appellant open- accused had for cross- that “the shall file an brief, ing containing If examination. an out-of-court statement is concise state- [a] nontestimonial, points to the Roberts ment of the of error.... Points not analysis, requiring showing presented in accordance this section will “unavailable,” declarant is the state disregarded, except appellate reliability. ment some indicia of court, bears option, may plain at its notice a error “unavailability” paradigm is retained presented.”). perceive therefore no We both testimonial and nontestimonial situa grave error.

tions, the result achieved is not anoma Indeed, showing

lous. we reiterate that “a of B. Plain Error unavailability necessary the declarant’s 52(b), “[pjlain Pursuant to HRPP Rule er promote integrity finding pro of the fact affecting rights rors or defects substantial cess and to ensure fairness to defendants.” although they be noticed were not Sua, (cita 92 Hawai'i at Here, brought to the attention of the court.” omitted). tions expressly argues Fields that his “constitu reiterate, sum, present To and in our hold- right undoubtedly tional of confrontation is more, less, ing is no and no than that a trial right’ ‘substantial and the erroneous admis court’s admission of a out-of-court statements, sion of both in violation of the statement does not violate the Hawaii Con- Constitution, Hawaii did affect substan [his] ” stitution’s confrontation clause where the de- However, rights.... tial inasmuch as we appears clarant at trial and the accused is already have determined that the admission meaningful opportunity afforded a to cross- Staggs’ prior out-of-court statement did examine the declarant about the mat- confrontation, right not violate Fields’ his situations, ter of that statement. In such rights assertion that his substantial have cross-examination satisfies accused’s adversely been affected on confrontation right of confrontation and neither the Craw- grounds is likewise merit. without Insofar analysis analysis nor the Roberts need ford any as Fields plain does not advance other employed. certiorari, argument error he failed to has rights demonstrate -his substantial have b. Richards’ statements overheard adversely been affected. See State v. Nich Lhamo ols, 327, 6, 974, 111 Hawai'i 337 n. 141 P.3d The ICA declined to address claim Fields’ (2006) (stating, 984 n. 6 in the context of a statement,15 out-of-court Richards’ as jury instructions, review erroneous Lhamo, related violated Fields’ appellant’s burden to demonstrate error confrontation under the Hawaii Constitu- lightly”). “is not to be taken tion.16 Inasmuch as Fields failed to raise the argument brief, opening are, course, in his cognizant the ICA was We of our within its discretion to deem power the error inherent plain to notice error sua (2003) 28(b)(4) Grindles, sponte. 528, waived. See HRAP Rule See State v. 70 Haw. din, 335, analysis, jurisdiction’s (Tenn.2006) as with this ver- 183 S.W.3d 347 n. 13 Crawford sion of the Roberts (“Numerous analysis, interpreted must be courts have determined that state friends, memory, pursuant to include a lack family, acquaintances, witness’ ments made to greater protection opposed government representative, afforded the Hawaii to a do (Citations recognized by Constitution as hearsay.”) this court in Sua. not constitute testimonial omitted.). statement, her[,]” "Reggie, get 15. Richards' off nontestimonial, and, thus, clearly Although expressly its admissibili the ICA did not state that ty argument by failing under the confrontation clause of the Hawaii Fields waived his to assert it brief, governed by opening presume Constitution is the Roberts test. See in his we that its silence State, 471, indicates, (1) 122 Medina v. Nev. 143 P.3d 474 so inasmuch as Fields concedes (2006) (holding rape challenge that a victim's statement to that he did not the admission of Rich- neighbor, brief, (2) her opening "Look at me. Look at me. I've ards' statement in his nontestimonial, raped[J" argument been whereas the Fields raised the for the first time in brief, rape supplemental appellate victim's statement to a “Sexual Assault the ICA testimonial); completely ignored argument. Examiner" Nurse State v. Ma (“Although 777 P.2d legal inquiry self-directed boards of and re Appellant appeal any search, essentially did not raise on due legal but as arbiters of claim, process power sponte questions presented argued by par ‘the to sua no- them.”) (Citation plain affecting omitted.); tice errors or ties before defects substan- Car (D.C.Cir. court”) rights’ Regan, clearly tial ducci v. 714 F.2d resides 1983) (“Failure Hernandez, (Citing 475, 482, requirement State v. enforce this Haw. (1980).). ultimately deprive However, will us in substantial 605 P.2d we do not measure of that appropriate believe it assistance of counsel which do so under the system deficiency assumes—a that we circumstances. perhaps supply by means, can other but not recently We have stated that altering without the character of our institu “power plain to deal with error is one to be tion.”). sparingly exercised caution because Here, plain we decline to notice er plain represents departure error rule sponte ror sua inasmuch as Fields retains presupposition from a adversary sys ability rights by filing to vindicate his party tem—that a must look to his or her petition, pursuant to HRPP Rule assert protection counsel for and bear the cost of ing a claim of ineffective assistance of coun Rodrigues, counsel’s mistakes.” State v. Indeed, contemplated ap sel. the ICA (2006) (cit 147 P.3d propriateness proceeding, given of such a ing Aplaca, 17, 22, State v. unique presented by circumstances the case (2001) (quoting State v. Keleko bar, as follows: lio, 74 Haw. 74-75 rep- In cases the same where counsel has (1993))). Ohio, See also Penson v. 488 U.S. defendant/appellant resented both at 75, 84, (1988) 346, 109 S.Ct. 102 L.Ed.2d 300 trial appeal, and on direct and defen- (“This system premised is on the well-tested dant/appellant, reasonably expected, as principle that truth—as well as fairness—is in appeal does not his direct contend that by powerful best discovered statements on negli- he the victim of trial is counsel’s question.”); both sides of the Hines v. Unit gent object failure to of admission (10th Cir.1992) States, 506, ed 971 F.2d 509 evidence, may into two statements (“The points argued rule that not not be will defendantyappellant appeal in his direct just prudential considered is more than a avoid the issue of whether his trial counsel convenience; observance, rule of its at least by asserting ineffective that cases, in the distinguishes vast of court’s of admission the two state- adversary system justice our of from the plain ments into evidence was the court’s one.”) inquisitorial (Citing United States v. error? Burke, 229, 249, 1867, 504 112 U.S. S.Ct. 119 (1992) J., (Scalia, concurring).); emphasize opinion L.Ed.2d 34 that We we offer no as to States, 617, question Ford United 533 A.2d 624 the merits of such a claim as that (D.C.1987) (“The premise of our presented application adversarial was not for Fields’ system appellate that is courts do not sit as writ of certiorari.17 388, Here, Poaipuni, argu- 17. The dissent cites State v. 98 Hawai'i Id. at 49 P.3d at 354. no such 387, (2002), asserted, support 49 P.3d 353 its assertion ment was and therefore there any portions that such ineffective assistance of other of the trial that were not counsel record resolved, op- part appeal they claim should be addressed and as made a on of record because posed postponed proceed- points actually for a HRPP Rule 40 were not relevant to the error 395, Thus, (“[T]he ing. presented. See id. at record we cannot know whether or sufficiently developed “sufficiently appeal present on to establish not record is devel- Rather, legitimate upon oped.” prudent that there was no tactical we think it to reserve bases judgment permit which file a HRPP Rule defense counsel's omissions could con- Fields to Thus, relief, ceivably petition post-conviction predicated. have been this is not 40 for as the ICA end, acknowledge [the defendant’s] a case in which ineffective as- concluded. To that we that object claim cannot be decided until trial counsel's failure to Officer sistance counsel Fields' developed subsequent testimony Staggs' in a as to state- the record is further post-conviction proceeding.”). Ke's out-of-court However, require great explanation. will deal of ments However, Poaipuni, argued deciding we believe that the issue at the defendant raised and time, appeal. affording parties ineffective claim without assistance of counsel 530 Sufficiency damage person’s body.” of the Evidence hurt or to that

C. Nomura, 413, 416, State v. 79 Hawai'i 903 point final that Fields’ of error asserts 718, denied, (App.), 80 Ha P.2d cert. prosecution failed to adduce admis- sufficient 187, (1995); 907 P.2d State v. wai'i support his conviction. sible evidence Ornellas, 418, 723, 79 Hawai'i 903 P.2d assessing the Our standard for suffi denied, (App.), cert. 80 Hawai'i ciency of the “con evidence is well settled: (1995). § 907 P.2d HRS 709-906 does strongest light prosecu sidered for designate requisite not of mind state tion,” finding guilt supported must be physical to the offense of abuse attendant evidence”—i.e., “credible evi “substantial of a member. “that ele household quality pro which is of dence sufficient if, thereto, respect ment is established with person to enable a reasonable bative value person intentionally, knowingly, acts or support every caution conclusion” (1985). recklessly.” § HRS 702-204 Cf. charged material element of the offense was Holbron, State v. 78 Hawai'i Martinez, proven. State v. (1995) (requisite P.2d state (2003) (citations 338-39, 68 P.3d 612-13 134-7(b) § HRS (Supp.1992) mind under omitted). Furthermore, analysis ex thus, unspecified, intentionally, it is know purview from its all errone cludes evidence ingly, recklessly), de or reconsideration ously admitted for the trier consideration (1995). nied, 79 Hawai'i 903 P.2d 729 Wallace, of fact. See State v. 80 Hawai'i Canady, State v. (stating 414 n. n. 30 (App.1996). 109-10 “sufficiency evidence reviewed 'properly based on the evidence that was Here, the in admissible evidence18 trial”) (some omitted). emphasis admitted (1) Fields, Staggs, dicates and Richards (2) present, slapping were Lhamo heard nois 709-906(1) § HRE describes the thug,” “hard es and a Lhamo admitted convicted, offense which Fields slapped being she did know who was pertinent provides, part, follows: body hitting she heard whose family § 709-906 Abuse house- ground, Lhamo testified that heard she members; penalty. hold someone, Richards, presumably yell, “Reg (1) any person, It shall be unlawful for (5) her,” gie, get off after Rich Fields and concert, singly physically or in to abuse a premises, Staggs ards left Lhamo found family or household member.... up, kind of ... “shook scared and half beaten section, purposes “family For the of this (6) something,” responding police or offi persons or household member” means cers, Ke, Kapua and Officers observed jointly residing formerly residing in or injuries Staggs had sustained face and her dwelling same unit. (7) shoulder, despite exhibiting and assessing sup- In whether sufficient evidence memory trial, degree some loss at 709-906(1), § a ports conviction under HRS reported had earlier Officer Ke that Fields following guidance additional is relevant: behind, approached her from her neck held couch, “physically against punched abuse” someone is to “mal- and on the [T]o her in injury, such a manner treat as to cause left side of her face. argument analyzing the present benefit and the whether the record contains sufficient record, complete inappropriate. is affirm evidence to a conviction. at 410- See id. only P.2d at 723-26. Wallace restricts requires We note that each

18. Wallace "ma sufficiency analysis "properly of the evidence supported by element of the [be] terial offense purposes determining admitted” evidence ” "for and .... substantial admissible evidence I, jeopardy whether the double clause article (emphasis Hawaiì original). in precludes section 10 retrial whose of defendant However, preclude Wallace not does conviction has been set aside because of insuffi Staggs’ consideration of and Richards’ state n.30, ...." cient Id. at 414 P.2d at evidence in the case as ments inasmuch Wallace added). right against 727 n.30 Fields' unobjected clear makes to evidence is jeopardy double is not at issue here. deemed admissible and be considered when that, Hence, conclude considered we 1. light prosecution, most favorable' to the as related Staggs’ out-of-court statement quality probative is of sufficient and evidence (Officer testimony Elliot Ke Officer person cau

value to enable a of reasonable Ke) in evi- should not have been admitted support tion to the conclusion that Fields hearsay and did not dence because was intentionally, knowingly, recklessly mal or qualify exception an to the rule. Martinez, Staggs. treated See 101 Hawai'i under the cir- Admission of such evidence 68 P.3d at 612-13. plain constituted er- cumstances of this case it, Although fails to decide ror.

IV. CONCLUSION proposition dispositive is of Petitioner’s application. writ upon foregoing, judgment of Based conviction is affirmed.

A. ACOBA, Dissenting Opinion by J. respectfully I dissent. statement, “Hearsay ‘a other than one testifying made at the the declarant while Application In his for Writ of Certiorari hearing, prove trial or offered evidence Petitioner/Defendant-Appellant Reginald (Petitioner the matter HRE Fields) the truth of asserted.’ Fields contends that (1985).... 801(3) (the Hearsay ICA) is inadmissible Appeals the Intermediate Court of trial, (1) qualifies exception to the unless it as an gravely by failing to find that the erred Sua, hearsay.” 92 Ha against rule State of Me- admission statements (1999) [herein wai'i Staggs (Staggs) and linda Dave Richards Sua, ], rev’g II State v. (Richards) after Sua did not violate the confrontation (2) (App.1999) Sua 987 P.2d 976 Constitution, [hereinafter clause of the Hawai'i (internal marks, citation, quotation abdicating I] declining plain to find error and in omitted). disputed It not brackets judicial of a Rules of review favor outside of court (HRPP) Petition, statement was made Rule 40 Penal Procedure (3) for the truth of the matter was offered vacating Petitioner’s convic- falling Accordingly, unless asserted therein. evidence, tion for insufficient because rule, exception within evidence that is “substantial” and “admissi- have been admitted statement should not support ble” can a conviction. into evidence. view, my Petitioner raises meritorious pre- claims as to issues that are dispositive because under the eminent (HRE), any Staggs’ does not fall under Rules statement

Hawai'i of Evidence hearsay question exception to the rule. The not admissible in evi- statement was (1) any within ex- of whether the statement fell issue need not be reached. dence. joined appear have been judgment ception does not to Consequently, the October (the However, Petitioner by parties at trial. family court of the fifth circuit Staggs [by court), “questioning of convicting of abuse of a declares that the Petitioner member, of Ha- Respondent/Plaintiff-Appellee State family must be re- or household (1) (Respondent) suggests ... Assuming arguendo issue must wai'i ] versed. to reached, majority’s analysis sought purported to admit her statement I believe the (1993) HRE Rule 802.1 [ ].” Officer Ke under regarding Constitution’s confron- exception forth an faulty. HRE Rule 802.11 sets tation clause is entitled, (1) "Hearsay exception; Inconsistent Statement. The declarant is Rule 802.1 1. HRE (cid:127) by in relevant concerning Prior statement Witnesses” states subject to cross-examination part: subject matter the declarant’s state- ment, following previously made The statements is inconsistent the statement testify hearing are witnesses who at the trial or testimony, the statement is the declarant’s excluded rule: rule, which, satisfied, per- required when matter’ of the as under [statement 802.1(1)”). 802.1(1) HRE Rule HRE Rule prior mits the substantive use of statements requires guarantee “as of the trustworthi- that are either inconsistent or consistent with statement, prior ... ness of inconsistent testimony. the declarant’s trial relevant As capable testifying that the witness be sub- here, pursuant 802.1(1), to HRE Rule several event, stantively allowing about the the trier requirements prior must be satisfied before a meaningfully compare prior inconsistent statement be admitted as of fact version the event with the version recount- First, evidence. substantive declarant ed at trial the statement woidd be before “subject must be to cross-examination con- admissible substantive evidence of the cerning subject matter of or her [his matters stated therein.” Id. at 802.1(1). prior] statement.” HRE Rule (footnote omitted) (emphasis P.2d at 115-16 addition, prior statement must be “incon- added); Clark, see also State v. 83 Hawai'i testimony sistent” with the declarant’s 289, 295, (discussing compliance be offered in with HRE Rule HRE holding 802.1 and that because the 613(b) (1993).2 802.1(1). HRE Finally, Rule opportunity defendant had the to have the prior inconsistent statement have must “fully explain why declarant ... her in-court “[rjeduced oath[,]” “[g]iven been either under and out-of-court statements were inconsis- writing signed adopted or otherwise tent, ... the trier of fact determine [could] declarant,” approved by or contempo- or (citation omitted)); lay[]” where the truth raneously substantially “[r]ecorded verba- Eastman, State v. 81 Hawai'i 802.1(1)(A)-'(C).3 tim HRE fashion.” Rule P.2d (concluding that the cross- complainant examination of the “satisfied B. constitutional and trustworthiness concerns admitting prior over inconsistent [her] state- Officer Ke attributed ... ments into evidence HRE Rule Staggs any [under require did not meet 802.1], gave because the cross-examination First, ments under HRE Rule 802.1. it was [the defendant] have [the subject inadmissible because was not complainant] fully explain to the trier of fact concerning subject to cross-examination why her in-court and out-of-court statements reputed prior matter of her statement. See inconsistent, which, turn, were enabled the Canady, State v. trier of fact to determine where the truth 104, 112 (App.1996) (concluding that the added)). lay” (emphasis prior inconsistent statement “would not be admissible because the record failed to Staggs, complainant like the in Canady, complainant] establish that ‘subject [the “could allegedly not recall the events that she subject to cross-examination concerning the prior described” her Canady, statement. 613(b), compliance 613(b) with rule 2. HRE Rule states: offered and the statement was: (b) Extrinsic Evidence of Prior Inconsistent (A) penalty Given under oath of Statement of Witness. Extrinsic evidence of a trial, perjury hearing, at a or other inconsistent statement a witness is not proceeding, deposition; or in a or unless, admissible (B) direct or cross-examina- writing signed Reduced to or other- tion, (I) the circumstances of the statement adopted approved by wise ant; or the declar- brought have been to the attention of the wit- (C) ness, (2) substantially Recorded in verbatim the witness been has asked mechanical, by stenographic, whether the witness made the statement. fashion electrical, contempora- or other means neously making with noted, the the state- supra regard 3. prior As see of note with to ment; statements, 802.1(2) consistent HRE Rule also (2) Consistent Statement. The declarant is requires “subject that the to cross- declarant subject concerning to cross-examination concerning subject examination the matter of mattei; the the declarant's prior [his her] statement.” HRE Rule statement, the statement is consistent (2) additionally requires prior 802.1 that the state- testimony, with the declarant's and the ment be "consistent with the declarant's testimo- compliance statement is offered in rule613(c)[.] with ny,” compliance and "offered in with HRE Rule 613(c).” 802.1(2). PIRE Rule added.) (Emphases such, 804(b)(8) requirements 80 Hawai'i at 911 P.2d at 116. As dational of HRE Rule met, testify was “not able to about the were as the ICA also noted. See infra. reported” substantive prior Staggs’ events her statement was thus not ad- recall, 804(b)(8). Staggs’ Id. statement. failure to at missible HRE under Rule trial, the prior incident that her statement precluded subject- described Petitioner from III. ing the accusation attributed to her to cross- September On the ICA ordered “[bjecause Consequently, examination. parties supplemental to briefing submit

witness could not be cross-examined about regarding impact Crawford, 541 U.S. events, the trier of fact was not free to 124 S.Ct. 158 L.Ed.2d 177 testimony prior credit or the Haili, and State v. lay.” statement to determine where the truth (2003), in the resolution of Petitioner’s 802.1) (citing Commentary to HRE Rule Brief, appeal.6 Supplemental In his Petition (brackets quotation and internal marks omit- properly complied request, er ICA’s ted). Staggs’ hearsay statement was there- discussion, and as relevant to this maintained fore not HRE admissible under Rule 802.1.4 Staggs’ hearsay that statement did not fall hearsay exception, within a “much less a II. ‘firmly satisfy rooted’ one” would Brief, In Answering Respondent its does Haili, Hawai'i confrontation clause. 103 Ha dispute not statement was not wai'i at 1278. Instead, admissible under HRE Rule 802.1. response Respondent’s In Answering Respondent argues that “the did not [court] Brief, argued, Petitioner “to the extent that abuse in accepting [Staggs’] its discretion relies, brief, [Respondent] answering in its on statement to Officer Ke into evidence” under hearsay exception the so-called ‘residual’ set (1993 804(b)(8) HRE Supp.2005)5 Rule & 804(b)(8), forth in ... if [HRE] Rule even because [Staggs] statement that made “[t]he Staggs’ ... statements are deemed to fall to Officer Ke ... indicia of trustwor- [has an] 804(b)(8), within HRE Rule that does not Brief, Reply thiness.” In his ar- Petitioner satisfy requirement they fall within gues “Staggs’ alleged statement to Offi- ‘firmly hearsay exception.” rooted’ carry ‘equivalent cer Ke not does the same hand, guarantees circumstantial Respondent, Sup- of trustworthiness’ On the other in its Brief, exceptions plemental Answering as the other argues perti- listed Rule [HRE 804(b) (1993 event, here, 803(b)(2) Supp.2005) any & nent that under HRE Rule ].” (1993 Respondent Supp.2005),7 Staggs’, hearsay did not establish that the foun- & state- Moreover, efforts, (B) Staggs’ prior general purposes because statement was of these 4. oath, given writing justice not under reduced to will rules and the interests of best be her, signed, adopted by or otherwise nor contem- served admission of the statement into However, poraneously substantially recorded in a verbatim evidence. a statement not be fashion, requisite exception foundation under HRE pro- admitted under this unless the 802.1(1) Opening Rule Brief, was not laid. In his ponent party known makes adverse additionally "Staggs’ Petitioner states that sufficiently hearing in advance the trial or any statement did not fall within other provide party oppor- the adverse with a fair firmly exception it, rooted rule." tunity prepare proponent’s meet partic- intention to and the statement offer 804(b)(8) 5. HRE Rule states: it, including ulars the name and address following are not excluded the hear- the declarant. say rule if declarant is unavailable as added.) (Emphases witness: were decided March and Haili respectively. and December Exceptions. spe- Other A cifically by any foregoing covered ex- "Hearsay Exceptions; 7. HRE Rule 803 entitled having ceptions equivalent but circumstan- Availability Declarant Immaterial” states in of trustworthiness, guarantees tial of if the part: relevant (A) court determines that the statement is probative point following hearsay which it excluded more for The are not rule, any though offered than other evidence which the even the declarant is available as proponent procure through can reasonable a witness: and, qualifies an IV. ment excited utterance therefore, “firmly falls hear- within rooted sum, Staggs’ hearsay statement did not say exception” Staggs’ and that statement qualify exception for as an admission particular guarantees “has of trustworthi- 802.1, hearsay rule under HRE Rule HRE However, Respondent’s position ness.” re- 804(b)(8), 803(b)(2). HRE Rule Rule contrary garding an excited utterance is Thus, hearsay Staggs’ statement was not ad- Brief, Answering in it taken its which correct, missible. I believe the ICA was Staggs’ contended that statement was admis- then, it Staggs’ insofar as also concluded that 804(b)(8), sible under HRE Rule relevant hearsay, statement the statement did not exception no other enumerated when qualify any hearsay for under admission ex- applies. supra. judicial See The doctrine of made, ception, objection and had an been estoppel “prevents parties playing from ‘fast objection “the not could have been valid- blowing and loose’ with the court or ‘hot and ly denied.” during litigation.” cold’ of course Roxas Marcos, 91, 124, 89 Hawai'i 969 P.2d testimony, repeating Officer Ke’s what (1998) (citations quo- and some internal said, [Staggs] under HRE Rule omitted). Therefore, Respon- tation marks (Supp.2003). According to HRE Rule judicially estopped changing dent is from its 801(a)(3) [(1993 Supp.2005)], [Staggs] & position regarding admissibility of testify. was unavailable Staggs’ hearsay statement. question [Staggs’] is whether statement is Moreover, because the ICA limited the exceptions admissible under one of the list- scope supplemental briefing 804(b). of the only possibil- ed in HRE Rule The Haiti, applicability Respon of 804(b)(8), ity [Staggs’] is HRE Rule Crawford regarding discussion dent’s excited utter statement is not admissible it under be- exception scope ance exceeded the (a) cause the record does not show that Respondent’s argument ICA’s order. thus is [Respondent] complied with the notice re- foreclosed because it unfair would be to ad (b) quirements HRE Rule light dress of Petitioner’s reliance on [Staggs’] required statement lacks the Respondent’s position Answering in its Brief “equivalent guarantees circumstantial statement was admissi Therefore, trustworthiness.” counsel if for ble provision under the catchall of HRE objected [Petitioner] had to the introduc- 804(b)(8). See, e.g., Dept. Tauese v. State [Staggs’] prior tion testimonial state- Relations, Labor & Indus. 113 Hawai'i ground ment into evidence on the that it (2006) (noting 147 P.3d that al HRE, objection violated the would though appellant “provided argu some have had merit and could not have been regarding specificity charges ment validly denied. reply brief, issue, he has waived this — Fields, 25455, —, State v. No. (citing it would be unfair for us to address it” at -, May (App. 2005 WL *16 Lingle, Taomae v. n. 2005) (brackets omitted) (emphases add 1244 n. (denying ed). then, hearsay statement, should plaintiffs’ request attorneys’ for on a fees not have been allowed evidence. This ground reply raised for the first time in their majority. salient fact is not addressed memorandum))). Indeed the does not indicate at all Finally, apparently the ICA also did not could, properly how the Respondent’s consider belated excited utter- light plain admitted in the instance in first exception argument. Respondent ance did error. apply for a writ of certiorari as contention and so it must be deemed waived The ICA went on to discuss be- purposes of our object review. cause it believed Petitioner’s failure to (2) Excited A Utterance. statement relat-

(b) ing startling Exceptions. to a event Other or condition made while the declarant was under the stress of excitement caused the event or condition.

535 So, right to, although objected to the statement at trial waived his not the admission object appeal plain on direct error Staggs’ hearsay testimony at trial should grounds (although right not his to claim er plain by have been noticed as error the ICA subsequent proceed ror in a HRPP Rule 40 argues in application. as Fields See State -, — Fields, ing). P.3d at Nichols, 327, 334, v. 111 Hawai'i 141 P.3d at -, 1274539, 2005 at WL *18-19 (2006) (“If 974, rights 981 substantial (concluding “[generally ... absent an adversely, the defendant have been affected defendant,” objection by the “the trial court (Cit plain the error bewill deemed error.” duty not did violate not to admit inadmissi Pinero, 282, 292, ing State v. 75 Haw. 859 hearsay testimony duty ble into evidence or a 52(b) 1369, (1993))); P.2d 1374 HRPP Rule hearsay testimony to strike inadmissible af (“Plain affecting error or defects substantial evidence”).8 ter it admitted into was rights may although they be noticed not were court.”); brought to the attention of the State

V. Sanchez, 517, 524-25, 923 P.2d (“ ‘[Wjhere 934, (App.1996) plain 941-42 er object Because Fields did not at trial to ror has been committed and substantial statement, Staggs’ the admission of it is sub- rights thereby, have been affected the error ject only plain to a for review error. may though be noticed even not certiorari, application directly Fields’ for he ” brought to the attention of the trial court.’ grave- raises the issue of whether ICA “[t]he Kelekolio, 479, 515, (Quoting State v. 74 Haw. ly in declining plain erred to find error and (1993).)).9 regard, 849 P.2d 75 In that abdicating judicial of a Rule review favor that, hearsay this court has stated even if is petition” “appellate and that courts in this objected trial, not to at “where inadmissible jurisdiction plain have found error and re- hearsay prejudicial deprive is so as versed convictions for the erroneous admis- right despite his constitutional to a objec- sion of evidence the lack of an defendant of fair trial, Fox, (Citing ground tion.” its admission will constitute State v. 70 Haw. Pastushin, (stating 760 P.2d State v. 58 Haw. reversal[.]” this court for 299, 302, idly by though (emphasis will clear error “stand[ ] added) omitted). (citation affecting rights Accordingly, substantial of the defendant as to committed”)). (3), Petitioner’s issue neither nor her,” statement, (a) “Reggie get 8. Richards' off re Fields is the victim of the ineffective assis (Lhamo) (b) plain lated to the court Kharma Lhamo tance of trial counsel or the trial court's -, - P.3d at -, Thus, was also inadmissible because it was also hear error.” Id. *16. at say qualify exception ICA, and did not as an to the according majority explains which the -, - P.3d at - Fields, hearsay err[,]” rule. See grave[ly] majority opinion "no[t] did at Contrary WL added), at *17. to the ma (emphasis 168 P.3d at 980 neither jority’s contention that "the ICA declined to ad Staggs' nor Richards' ad statement was dress Fields' claim that Richards’ out-of-court missible. statement, Lhamo, as related violated Fields' right of under the confrontation Hawai'i Consti majority appears agree right 9. The that the tution!)]” majority opinion at P.3d right. majori confrontation is substantial See 980, the ICA did indeed address Richards’ out-of- ty opinion (stating court statement. "already it has determined that the admission of Staggs' prior out-of-court statement did not vio testimony, "[Lhamo’s] The ICA stated that re confrontation, right [thus] late Fields’ his as said, peating HRE what Richards under rights sertion that his substantial have been ad Rule 801" and record does not answer the "[t]he versely grounds affected on confrontation question whether Richards was or was not [of] follow, then, merit"). without It would likewise testify” unavailable to so counsel Fields “if rights that because substantial include constitu objected had to the introduction Richards' rights, right tional to a fair trial is also a ground testimonial statement into evidence on the right. Rapoza, Ha substantial See State v. HRE, objection that it violated the would have (2001) (equat wai'i validly had merit and could not have been de right ing Fields, -, - P.3d at -, a substantial with a constitutional WL nied.” added). by stating a "defendant's substantial at *17 The ICA wit, rights-to rights his or her constitutional to a concluded that “the two statements that impartial jury process objected due validly trial and to could have been to and excluded error”). recognized plain possibilities from evidence ... law statements, supra note the decision of the with that of the [ICA] Richards’ see thus, decisions, and, court, properly supreme admitted at trial federal or its own were magnitude the evidence was insufficient convict. decision and the of such errors or Wallace, 382, 910 dictating State v. 80 Hawaiì inconsistencies the need for further (1996). Thus, (HRS) judgment the court’s must be appeal,” Statutes Hawaii Revised 602-59(b) (1) (2) § reversed. (Supp.2006),items are not limitations on this court’s discretion to Chong, take certiorari. See State v. 86 Haw VI. (1997) 282, 282-83, ai'i 949 P.2d 122-23 majority plain focuses its discussion of (explaining legislative history of “[t]he explicitly error on Fields raised the whether §HRS 602-59 makes clear we have the au See, right e.g., majority opin- to a fair trial. thority any to consider issues that in arise “[ijnsofar (stating ion at 168 P.3d (citation omitted)); this case State Bolo any plain other as Fields does not advance san, 89 n. certiorari, argument he error has failed (The (1995) legislative history n. 5 of HRS rights demonstrate that his substantial have although § 602-59 indicated that “the affected”). above, adversely been As stated application for writ of certiorari must state inadmissibility Staggs’ of statement on ‘errors of or fact’ or in law Inconsistencies hearsay grounds appli- in Fields’ was raised the decision of the ICA with that of the plain implicating right cation error his to a as Court, decisions, Supreme Federal or its own fair trial. The ICA decided that admission of decisions, magnitude and the of such errors the HRE statement violated dictating or inconsistencies the need for fur ICA, Opening Brief before the Fields ...[,] appeal’ requirement ther such di is alia, argued, substantial, inter that he “has a only writ[,]” application rected to the for process right” fundamental to “due of law” “ and, hence, application requirement ‘is trial[,] and a “fair which necessitates descriptive scope review deter of [Respondent] carry prove its burden to its [cjourt’s [sjupreme minative decision beyond against case him a reasonable doubt ’ ” “ ‘[tjhe grant deny or certiorari added.) by competent (Emphasis evidence.” [cjourt’s [sjupreme regard power in that is claims, making arti- these Fields cited to discretionary.’” (Quoting intended to be I, cle sections 5 and 14 of the Consti- Hawaii Rep. Conf. Comm. No. 1979 Senate tution and the Sixth and Fourteenth Amend- 992.) Journal, (Emphases in original.) ments to the United States Constitution omitted.)). (Brackets Accordingly, assuming protect right to a fair trial. As which arguendo, right of confrontation rights Fields raises these constitutional in his expressly application, raised we brief, opening majority’s contention that application are not constrained to a Fields “has failed to demonstrate that his here, right, especially review of that where rights adversely substantial been affect- have to a fair trial was raised Peti ed[,]” majority opinion at ICA, appeal tioner on before the and the ICA patently juris- in error. This court’s agreed admission of the obviously diction extends to an error that violated the rules of evidence. rights.10 affects a defendant’s substantial See also cases infra. Moreover, if even Fields had failed to

Additionally, application for cer- applica- while raise these issues in his certiorari “(1) tion, grave “cog- tiorari must addi-ess errors of law itself notes that it is fact, power plain or of obvious inconsistencies nizant of our inherent to notice noted, contrary majority, years imprisonment As and to be tion for two for two raise, accurate, implicitly Fields did and the ICA days, disingenuous question and raises the acknowledges, what would deemed an in- infringement how this court could ever find an fringement rights. of Fields' substantial With all rights significant enough plain substantial to find say respect, due that Fields does not show that noted, plainly error. As Fields asserted that his rights have his substantial was convicted based on the admission of incom- petent been affected when he rights substantial were violated the admission Staggs' hearsay statement. evidence, proba- and sentenced to (Chu) sponte[,T majority opinion promotion error sua prostitution in the (citations omitted), power degree.. together. second The two were tried majority recently Id. at exercised in State v. 568 P.2d at 505. Chu “did not 227, testify Ruggiero, 114 at trial [but Hawai'i 160 P.3d 703 statement to the his] (2007), directly police pointedly implicated many and this court has [Pas- times em Doe, in ployed, 75, 87, the commission of the tushin] see In re 102 offense 73 29, charged.” Id. McGriff; P.3d 41 This court concluded that State v. 76 Ha 148, 155, 782, police implicated “Chu’s oral statement to the (citing wai'i 303, himself as Grindles, 528, well the defendant. Id. at 530, State v. 70 Haw. 777 P.2d (1989) (“the competent 568 P.2d at 506. It 1187, was evidence power sponte to sua Chu, against but it against was inadmissible ‘plain notice affecting errors or defects sub highly prejudicial and “was [Pastushin]” rights’ clearly stantial resides this court” cause.” [Pastushin’s] Id. Further was “[i]t (quoting Hernandez, 475, State v. 61 Haw. statement, any Chu’s more than other evi- 482, 75, (1980))); 605 P.2d State v. Iau dence, jury which established before the that kea, 343, 355, 56 Haw. 537 P.2d ... ‘advancing profiting’ was (1975) (This [Pastushin] court power, “ha[s] sua prostitution.” from Id. at sponte, plain to notice errors or defects in that, 506-07. This court held because “[t]he affecting the record rights substantial harmless[,] eiror in this case was not it must properly brought to the attention of the trial be reversed and remanded for a new trial.” judge appeal” or raised on (citing State v. Yoshino, 287, 289, 50 Haw. 439 P.2d (1968); Cummings, State v. 49 Haw. Similarly, the statement issue in the (1967); Ruiz, 423 P.2d State v. instant case “was not harmless.”12 See (1966))). 52(a) 49 Haw. error, HRPP (stating “[a]ny Rule notes, “hearsay defect, As Wharton’s evidence which irregularity or variance which does been objection may has admitted without rights not affect substantial shall be disre- properly be in determining garded”). Staggs’ considered hearsay statement was facts, plain primary unless its admission constituted evidence used convict Fields Bergman Nancy expressly error.” E. Barbara & Hol this case. The court relied on lander, Staggs’ § statement to Wharton’s Criminal Evidence 6:9 establish Petitioner (15th ed.1998) added). Staggs. fact, abused In in statement Offi- hearsay cer Ke attributed to objec admissible admitted was the without evidence which identified Petitioner always subject plain tion is as hav- error ing Staggs. abused majority’s standard. The discussion of waived, right whether the to a fair trial was Pastushin, Similar to the case it was then, plain is irrelevant to the discussion of “statement, Staggs’ any more than other evi- error. dence which established” Fields’ abuse conviction. 58 Haw. 568 P.2d at 506- VII. express 07. Because of the court’s reliance statements, recognized plain This court has error there was no reason- hearsay possibility hearsay where admission inadmissible able that the statements right evidence violates the defendant’s to a did not contribute to Petitioner’s conviction. Pastushin, hearsay fair trial.11 See 58 Haw. at related Officer statements Pastushin, and, thus, directly implicated 568 P.2d at 506. In the defen- Ke Petitioner dant, Eugene (Pastushin), adversely Pastushin in- was affected Petitioner’s substantial Henry dicted co-defendant Cho Chu right to a fair trial. See id. hand, majority ignores precedent discussing

11. The should be deemed harmless. On the other plain analysis error of inadmissible Respondent argued Supplemental in its Answer- instead, only explanation and exercising plain without states ing admitting Brief "the error Richards' "appropriate." error is not 529, Ma- beyond statement was harmless a reasonable jority opinion at 168 P.3d at 981. added.) (Emphasis doubt." Respondent 12. It should be noted that does not argue Staggs' hearsay admission jurisdictions plain pre-

Cases from other find information to decide that its failure to hearsay testimony error where inadmissible affects clude admission of the evidence, rights, including defendant’s substantial into or to it it strike after has been evidence, a fair trial. plain See United States v. admitted into is a error.” Id. (2d Tellier, Cir.1996) (finding 83 F.3d 578 It concluded that “the trial court did not plain and, thus, duty” being error where inadmissible violate no “[t]here despite objection [by court], admitted a lack of plain and re- error the trial there is no — defendant); Fields, -, versing -, error.” convictions United P.3d at Williams, States v. 133 F.3d 1051-53 2005 at *19. WL (7th Cir.1998) (finding plain error to doing wrongly proposes so it that be- agent’s hearsay testimony admit relat- [FBI] objection, there cause was no the court vio- ing confidential informant’s identification of duty lated duty no and the violation of such a suspect).; defendant as States v. United prerequisite finding plain is the error. (1st Cir.1994) (ex- Holmquist, 36 F.3d 154 reasoning Under this incorrect the entire rules, plaining objection that under federal to concept plain of error as established under evidentiary proffer reasonably spe- had to be HRPP abrogated. Rule 52 would be For it preserve right appellate cific in order to very the is that defense counsel did not fact review, unless so-called evidence object plain that invokes error rule. If not); plain of rose level error which it did governing principle, posits, as the ICA is States, (5th Smith v. 343 F.2d 539 United objection, that counsel should have made an Cir.1965) (explaining jury may that a consid- plain obviously error rule be nulli- would timely objection er evidence absent proposition fied. This is flawed and contra- may but if nonetheless reverse there has Sanchez, applicable e.g., venes case law. See plain affecting been error the substantial 525, 942; Fox, 82 Hawai'i at 923 P.2d at 70 rights determining of the accused and 56, 676; Haw. at 760 P.2d at State v. Domin- hearsay statement, remaining even without go, 68, (1987); 69 733 P.2d Haw. 690 see also verdict) justify evidence was sufficient to 72, Page, Or.App. State v. 197 104 P.3d 616 (2005); State, Virgil 166, v. 84 267 Wis.2d

VIII. (1978). 852 N.W.2d A. B. all respect,

With due in its most fundamen error, rejection tal plain Secondly, majority assert, the ICA rested its of the ICA and the application duty, error power “the trial court’s if plain “[t]his court’s to deal with error any, to control the admission of sparingly testi is one to be exercised and with mony evidence, into in the absence an caution ... represents because the rule of objection by departure adversary system[.]” trial counsel.’’ from defendant’s — Fields, at -, at -, Fields, -, - P.3d at -, P.3d 2005 WL 2005 WL at added). at *18 The at (quoting Vanstory, ICA *18 v. State stated, citing authority, 33, 42, “[gen without 91 Hawai'i 979 P.2d 1068 erally, trial, (internal objection by at an quotation absent marks and other citation hearsay testimony omitted)); defendant to the Majority opinion offered 168 P.3d (citations omitted).13 prosecution, the court lacks sufficient at 981 (Citation omitted.)); Kelekolio, by majority propo cited cases for this danl." 74 Haw. recognize plain may ("Nevertheless, sition all error be rec P.2d at 75 where ognized though they brought even were never plain error has been committed and substantial applied plain the attention of the court and error rights thereby, may have been affected the error particular Rodrigues, in the case. See State v. though brought be noticed even it was not 41, 47, 113 Hawai'i 147 P.3d (Citation omitted.)). attention of the trial court.” ("[w]e may recognize plain error when the error Further, majority's deviation into rights federal committed affects the substantial (citation omitted)); authority misplaced Aplaca, inasmuch as the defendant” State 17, 22, (2001) ("We ignores overwhelming precedent 25 P.3d from our may recognize jurisdiction. plain Majority opinion error when the error own com Ohio, rights (citing mitted affects substantial of the defen- P.3d at 981 Penson v. 488 U.S. However, (holding P.2d at that admission of the Vanstory recognized that “[i]f rights have testimony pur- the substantial of the defendant examiner for of mental health adversely, the be been affected error will credibility pose attacking defendant’s plain error.” 91 deemed statute, at trial was forbidden consti- (citing Sawyer, P.2d at 1068 State v. 88 Ha error, despite objec- lack an plain tuted (1998); wai'i Pine tion).14, Under the circumstances of this 1374). ro, 75 Haw. at case, declining recognize plain error is Nichols, Moreover, as this court noted arbitrary rejection of that doctrine. recognition plain error although the discretionary, “any re there has not been C.

ported criminal case in which this court has plain reverse in error but found refused The ICA’s third consideration was “although exercise discretion” “ presumably judgment within ‘[m]atters in the federal such discretion exist counsel, rarely strategy, like trial will courts, employed the never [this court] ha[s] ” by judicial hindsight.’ second-guessed four-pronged plain error standard review — Fields, at -, at -, 2005 WL Olano, U.S. set forth United States v. Richie, 1274539, (quoting v. 88 at *18 State 725, 1770, 113 S.Ct. 123 L.Ed.2d 508 1227, 19, (1993)[.]” P.2d 1247-48 335, 141 Hawai'i 960 111 at P.3d at 982 Hawai'i added). (emphasis original)). in Such a factor germane the facts of this simply is not to jurisdiction of this have Indeed courts case. plain in in which found error numerous eases object counsel to to the admis- defense sion failed Richie, the defen- In this court considered Pastushin, e.g., 58 evidence. See argument that defense counsel erred dant’s 303, (concluding at P.2d at Haw. 568 506-07 calling in four at trial. 88 not witnesses that case be reversed and remand- must 40, 960 P.2d at 1248. The Richie not ed because error this case was “[t]he Bar Association court relied on the American Sanchez, 525, harmless”); Hawai'i at 923 82 (ABA) Function Standards which Defense plain (concluding P.2d at 942 that was “[i]t “[strategic that and tactical decisions said probation testimo- error to allow the officer’s after by made defense counsel should be prior felony ny [the defendant’s] to establish client where feasible consultation with the where the State had not shown the conviction decisions appropriate” and that “[s]ueh unavailability prior con- of [the defendant’s] call, include witnesses to whether what Fox, 57, judgment”); 760 viction 70 Haw. cross-examination, ju- what how to conduct (concluding plain that there P.2d at 676 strike, trial motions accept what rors made defense error where statements made, should be and what evidence should be negotia- prosecutor during plea counsel to ABA, (quoting Standards introduced.” erroneously at trial in were admitted tions Function for Criminal Justice-Prosecution 410, though even violation of HRE Rule (3d Function, 4-5.2 Standard made, and Defense proper objection not because such ed.1993)). Thus, court concluded the Richie “seriously affected the fairness of eiTor 68, calling generally is 733 that “the of witnesses proceedings”); Domingo, 69 Haw. at (1988); rights, confrontation violation of a defendant's 102 L.Ed.2d 300 S.Ct. (10th States, object. despite See counsel’s F.2d Hines v. United defense failure States, (holding Cir.1992); e.g., Page, that 533 A.2d Ford United (D.C.1987); Regan, of co-defendant's testimoni- 714 F.2d erroneous admission Carducci v. al, granting (D.C.Cir.1983)). defen- without supra See discussion opportunity to cross-examine violated reiterating in the dant an that there is no distinction clause, plain error plain and was plain analysis raised the confrontation error between error Virgil, despite objection); 267 N.W.2d at 865 sponte. no appeal plain The on error raised sua standard, rights (holding admission of evi- again, that the erroneous is whether the substantial state- out-of-court a defendant have been affected. dence of the co-defendant’s pursuant rule but in viola- ment plain constituted the confrontation clause Obviously, tion of error, other courts have concluded objection). despite the lack of an admitting plain evidence there was error (internal strategic marks, quotation brackets, decision for defense counsel.” Id. and cita omitted). 960 P.2d at 1247. tion repeating It rejecting bears However, any supposed strategy or tactical error, application plain the ICA fundamen part decision on the of defense counsel would tally misapplied plain error doctrine object not excuse the failure to requiring prerequisite as a thereto that coun hearsay statement admitted via Officer Ke’s object sel to the inadmissible evidence. See testimony. See id. at 960 P.2d at 1248. supra. Accordingly, discussion the ICA’s recounted, Based the facts “the record on conclusion that a proceeding HRPP Rule 40 sufficiently appeal developed to establish is the “best” applying plain alternative to legitimate that ‘there were no ‘tactical’ bases inherently error wrong. Predictably this upon which defense counsel’s could omissions ” supported by any contention is not authority conceivably have have predicated.’ been contrary and is precedent. this court’s Poaipuni 387, 395, State v. 98 Hawai'i Silva, See State v. 75 Haw. 864 P.2d 583 Pacheco, (citing State v. (1993). this, Despite majority concludes (2001)). ability because Petitioner “retains the any legiti- fails to advance rights filing vindicate his petition, pur why mate tactical objection reasons for suant to asserting Rule [HRPP] a claim Staggs’ hearsay would not be made to state- counsel[,]” of ineffective assistance of it will Indeed, ment. counsel Petitioner was recognize plain Majority opinion error. appellate also trial and raising counsel. 529, 168 P.3d at 981. plain error counsel has in conceded effect However, 40(a) HRPP plainly Rule states objection prejudiced to make the failure post-conviction that a proceeding “shall not implicit Fields—an concession that no stra- be availability construed to limit the ofrem- error),] tegic reason object. existed the to failure edies[(i.e., recognition plain the of Inasmuch as no sup- rational basis exists to added.) ... on direct appeal." (Emphasis port the object view the failure to was a majority’s refusal to address the but, rather, strategy matter of trial anwas issue of rights Petitioner’s substantial direct- omission affected Petitioner’s substantial ly express violates the terms of HRPP Rule rights, plain recognized. error must be above, 40. But tellingly, most as noted it is appellate who, trial and counsel peti- on the IX. argues tion for certiorari that the failure to object prejudi- statement was The ICA’s fourth consideration indicated and, hence, cial error it follows—counsel does “[wjhen defendant’s trial counsel does justify object not resting failure to right object not exercise his to inadmissi strategic reason. by ble evidence prosecu offered tion, and the record is or unclear void as to X. inactions, the basis for counsel’s actions or given clear, counsel shall opportunity be To be plain error that this court explain his or her actions or inactions in an recognize should was the admission of appropriate proceeding before the trial court inadmissible Ke Officer judge” and that opportunity “such an was, to ex attributed to which as noted plain provided post-conviction is best in a supra, only evidence that identified proceeding defendant, initiated pursu Fields, having Fields as Staggs. abused - Fields, ant -, to HRPP Rule -, 40[.]” P.3d at 2005 WL 1274539 -, — at -, 2005 WL Addressing *18 *16. that issue resolves the case. 40(a) greater In context HRPP Rule availability states: strued to limit the remediesin the of appeal. proceed- trial post-conviction court or on direct proceeding The Said established ing encompass applicable judgments this rule shall shall be all common law of convic- statutory procedures purpose, custody judgment tion for the same and to based on of con- nobis; including corpus habeas .... coram viction provided added.) foregoing that the (Emphasis shall not be con- 52(b) The HRPP Rule standard is the XII. recognize test which authorizes this court to Moreover, express if language even

plain error “plain states that errors or incorrectly ignored by Rule 40 is the ICA affecting rights defects may substantial majority, and the the fact that Fields Indeed, noticed[.]” cases cited argue have an ineffective as- majority affirm what this dissent has noted subsequent sistance of counsel in a HRPP repeatedly, plain recog error is to be petition Rule 40 does not cure the fact that nized where there is an error that affects the already error has occurred and Petitioner’s rights defendant, substantial of a as this rights adversely substantial have been affect- Nichols, court has done. See 111 Hawai'i at 52(b). ed. See HRPP availability Rule The 335, 141 P.3d at 982. separate of a proceeding in which to chal- lenge a conviction on a confirmed error does XI. justify declining recognize plain error majority opines that “Fields retains fact, noiv. the ICA and the do ability rights by to vindicate his filing a any authority not cite to point. as to this petition, pursuant to HRPP Rule assert- For as this repeatedly recognized, court has ing a claim of ineffective assistance of coun- “the decision to plain take notice of error” Majority opinion sel.” ‘seriously rests on “errors that affect that, 981. The reasoning in this defect fairness, integrity, public reputation ” irrespective the merits ineffective judicial Fox, proceedings.’ 70 Haw. at claim, assistance a determination that ad- (quoting P.2d at 676 United States v. Staggs’ mission statement violated Fields’ Atkinson, 297 U.S. 56 S.Ct. right to a trial has in been made fair effect (1936)) added). L.Ed. Staggs’ inadmissibility because the Staggs’ state- hearsay statement violated Petitioner’s sub- ment already has been decided. The ICA stantial provided to fair trial and already has ruled in- statement was conviction; hence, basis for Petitioner’s “the admissible, it plainly inadmissible as a judicial proceeding” fairness law, matter of delay and further to reiterate (citation omitted). seriously affected. Hence, this fact is unwarranted. there is no Again, apply this court has never failed to delay reason to that determination to a Rule plain error doctrine where the error has Silva, proceeding. 437, See 75 Haw. at Nichols, rights. affected substantial See 592, supra. 864 P.2d at discussed The ma- Hawai'i at 141 P.3d at 982. The failure jority argument makes no that contradicts question to do so here calls into the circum- point, admitting that the statement is so, justify doing stances which will aside hearsay, and, supra, seemingly as noted even undifferentiating from the obvious but fact acknowledging that admission of the state- majority that a of the court must take notice ment was error. of such error. reiterate, Additionally, to a HRPP Rule 40

proceeding unnecessary the lack because XIII. any strategic objecting reason for not has by in effect been conceded Assuming, arguendo, defense counsel an that issue exists appeal advantage counsel, on and no obvious tactical as to ineffective assistance of as the appears failing object. insist, for Poaipuni, majority governs. to See and ICA Silva Silva, rejected 98 Hawai'i at 49 P.3d at 361. proposition Fields has this court yet to an proffered by prosecution make ineffective assistance of coun “a that criminal claim, and, hence, just sel there is no reason defendant not assert ineffective assis- postpone plain appeal” the resolution of the error. tance of counsel the first time on — Fields, at -, at -, See P.3d question 2005 and that “the of ineffective assis- (determining WL at *16 requires independent that tance of counsel an “hearsay hearing” ... through statements could have been the vehicle of a HRPP Rule validly objected proceeding. to and excluded from evi 75 Haw. at HRE”). dence, pursuant to the 591. Silva observed that “convicted defen- always ... multiple ap- predi dants almost have could omissions conceivable have been pealable in addition to issues an ineffective id. at 49 P.3d at 361. To cated^]” assistance of counsel claim.” Id. at 864 reiterate, the existence of such an error or P.2d already by omission has been decided — ICA,16 Fields, at -, at -, see case, Accordingly, reject- in that this court (stating 2005 WL at *19 “without prosecution’s ed the view that “a convicted (l)allow prejudice right defendant could ... either the time for a ... [Petitioner’s] appeal forgo appealable to run and all other proceeding pursuant HRPP Rule claims, any, filing if before a Rule 40 [HRPP] object his trial counsel’s failure issues, petition, (2)appeal except all for the [Staggs’] evidence ... [was] ” claim, ineffective assistance of counsel then assistance his trial counsel ineffective bring petition a [HRPP] Rule 40 when the added), (emphasis and confirmed the ma appeal process is terminated.” Id. The sec- jority, majority opinion see prosecution option rejected ond in Silva is (“Fields ability at 981 retains the to vindicate apparently resurrected the ICA and the rights by filing petition asserting majority. counsel”). claim of ineffective assistance of respect option, With to that Silva said “requiring a to wait until defendant XIV. appeal process completed raising a before JpO [HRPP] Rule assistance claim ineffective Further, supra, as noted it was the ICA would attorneys’ result in a waste of fees it, majority affirming and the that invite an and costs unnecessary expen- as well as an If, ineffective assistance claim. as the ICA judicial diture our limited resources[.]” maintain'—there is a claim for added). (emphasis explained Silva ineffective, assistance of counsel—Silva and prosecution’s “under the suggested general Poaipuni control because there is no trial rule, post-conviction claims defendant’s strategy that merit would the admission of always would be divided.” Id. at noted, statement as the ICA itself added). P.2d at 592 acknowledged the defense itself has that the Turning again case, to the facts of this hearsay, stating statement was inadmissible prevail must be observed “[t]o [an] expressly family that “the upon court relied claim, ineffective assistance of counsel de [a hearsay[,]”; inadmissible the existence of must fendant] establish that his ‘trial coun already such error or omission has been performance sel’s objectively was not reason ICA, Fields, -, decided see able—i.e., that it range was not within the - -, -, -, P.3d at 2005 WL competence attorneys demanded of in crimi ” *17, (stating preju “without Poaipuni, nal cases.’ 98 Hawai'i at pro dice to to ... a ... [Petitioner’s] State, P.3d at (quoting Briones v. 40, ceeding pursuant to HRPP Rule ... his (internal 966, Haw. 848 P.2d 976 object trial counsel’s to to the evi quotation marks, citation, other and brackets failure [Staggs’] dence statement ... omitted)). [was] Consequently, there “a must be of ” assistance his trial counsel specific error or omission that ‘resulted in ineffective added)), (emphasis and confirmed the ma either impair the withdrawal or substantial jority, 529, majority opinion see at potentially defense,’ ment of a meritorious (determining at subsequent 981 in a which includes ‘the assertion of [his] constitu ” Briones, proceeding Rule rights[,]’ may challenge tional Petitioner (quoting id. 74 10 (other 462, Haw. at 848 “asseHing P.2d at 976 citation a out-of-court omitted)), and that legitimate “there were no claim assistance counsel” of ineffective added)). upon Thus, ‘tactical’ (emphasis bases which defense counsel’s the matter should - stated, Again, Fields, -, plainly validly as the ICA "if counsel have been denied.” at 16. at -, 1274539, objected had (emphasis [Petitioner] to the introduction P.3d added). 2005 WL at *16 Thus, [Staggs’] testimonial statement evi into it is obvious that the ICA deter HRE, ground dence on the object that it violated the mined that defense counsel’s failure to objection would have had merit and could not was error. 543 postpone Rather, be decided here. To that determi “piecemeal the admonition that dis- nation egregious would be an position violation of a post-conviction defendant’s HRPP Rule 52. See Silva discussion should possi- claim[ ] be avoided whenever infra. ble,” Silva, 438, 592, 75 at Haw. 864 P.2d at XV. applies.17 Also, majority the ICA mistakenly and the significantly, But most allowing Petitioner required assume that defense counsel is to trial object contest his counsel’s failure to an explain have its failure to in subsequent HRPP petition, Rule 40 ma- — Fields, object. -, at -, See at P.3d jority 529, opinion at 168 P.3d at an is Silva, 2005 at WL *18. empty gesture. despite For advocating the court said that whether “an ineffective assis availability of a HRPP proceeding, Rule 40 requires tance of counsel indepen claim majority already states “we have deter- hearing dent to determine the relevant facts mined that Staggs’ prior admission of presupposes appeal the record on out-of-court statement did not violate Fields’ support ruling of ineffective insufficient Majority opinion confrontation[.]” assistance of counsel.” 75 Haw. at 864 added). at 168 at (emphases P.3d 981 added). Hence, P.2d at 592 this Additionally, a HRPP proceeding Rule 40 instances, court has said that “in some purposeless be majority would since the may ineffective assistance of counsel be so effect has indicated the statement is admissi- obvious from the record that a Rule [HRPP] plain ble the face of a challenge.18 error proceeding purpose except would serve no delay expend the inevitable and resources XVI. unnecessarily.” Id. at 864 P.2d at (citing Aplaca, State v. 74 Haw. comprehend it is difficult to the ma- (1992)). P.2d 1298 jority’s position appears inasmuch as it supra, light

As discussed agree of the ICA’s there admitting Staggs’ was error in position briefs, statement, see, Petitioner’s “the e.g., majority opinion record appeal sufficiently developed n.17, to estab at 529 168 P.3d at 981 (concluding n.17 legitimate lish that ‘there were no ‘tactical’ that “Fields’ trial object counsel’s failure to upon bases which defense counsel’s require great explanation”), omissions will ... a deal of conceivably could predicated.’” have been expends but much explaining why discussion Poaipuni, plain P.3d at 361 error sparingly],]” is to be “exercised Pacheco, (quoting majority 96 Hawai'i at opinion P.3d 591). result, As a pro (quoting HRPP Rule 40 Rodrigues, 113 Hawai‘i at (other ceeding omitted)). purpose. would serve no meritorious P.3d at 831 citations The majority (citation Poaipuni expend 17. unnecessarily” maintains that is dis resources tinguishable omitted)). because that case "the defendant argued raised and the ineffective assistance of appeal” counsel claim on and because “no such Again, already recognized the ICA has [here], argument was asserted there Staggs' statement was otherwise inadmissible portions other of the trial court record that were hearsay, and the has affirmed the ICA. part appeal - not made -, record on because Fields, at -, See WL they points were not relevant to the of error (stating at *16 that "if counsel for actually presented." Majority opinion at 529 objected [Petitioner] had to the introduction of n.17, (citing Poaipuni, 168 P.3d at 981 n.17 [Staggs’] prior testimonial statement into evi 354). Hawai'i at HRE, ground dence on the that it violated the Silva, however, objection sufficiently As in have record is would had merit and could not denied”). Moreover, developed regarding validly to make a determination have been as noted above, ineffective assistance because the error is clear the issue of ineffective assistance need not pretense appeal and the Petitioner makes no be reached and is discussed because of the object strategic majority's rights that the failure to was a move. ICA's and insistence that Fields' Silva, may See proceed 75 Haw. at 864 P.2d at 592 at trial be vindicated via a Rule 40 instances, Instead, (stating ing. that "in some the ineffective this case should be decided based already assistance of counsel be so obvious from on the fact that error has occurred and proceeding rights adversely record that a Rule 40 [HRPP] would Fields’ substantial have been af 52(b). purpose except delay serve no to the inevitable fected. See HRPP Rule majority why proceedings fails to elucidate the error is of this case and the that have or, words, “plain” transpired past years. other does not affect over five rights. only, Fields’ substantial It maintains attorney required Then the new be would explication, recognizing plain without er proceeding post-conviction to institute a “appropriate ror is not under the “by filing petition relief with the clerk of 529, 168 Majority opinion circumstances.” place.” the court which the conviction took added). majority, P.3d at 981 The 40(b). HRPP Rule The State of Hawaii however, why does not disclose it would be respondent would be named as the and would “appropriate” postpone the issue and how days have 30 “answer otherwise delaying resolution of whether Petitioner’s 40(d). plead[.]” HRPP Rule theAs case is rights substantial were to a future violated by majority, cast hearing ICA and proceeding possibly HRPP Rule 40 could be necessary testimony would be to receive the a better solution. of trial counsel on the ineffective assistance Following hearing

claim. the court will findings have “state its of fact and conclu- XVII. law[,]” sions of HRPP 40(g)(3), Rule judgment petition. render a on the Certainly, majority’s posi- the ICA’s and judgment rendered, After par- is particularly egregious tions are in this case. appeal ties are afforded an “in accordance The record indicates that on October 4(b) Appel- with Rule Hawaii Rules 2002, Petitioner was sentenced to a term of 40(h). late Procedure.” HRPP Rule If an year-s probation, days prison two two appeal taken, proceed again the case will However, with credit for time served.19 mit- through process plausi- the entire and could stayed pending May appeal. timus was On bly up end once more before this court for 20, 2003, Compli- the court held a Proof of upon a application. Plainly, review certiorari Hearing ance where Petitioner found to Silva, as in a HRPP proceeding Rule 40 compliant. appears two-year It term purpose except delay would “serve no run, probation although has it is unclear inevitable” and “result in would a waste of from the record whether Petitioner satisfac- attorney’s fees and costs as well as an unnec- torily completed the term. this case essary expenditure judicial of our limited re- pending point years. has been to this for five Silva, 437, 438-39, sources[.]” Haw. Obviously, proceeding a HRPP Rule 40 (citation omitted). ma- needlessly prolong length would of court jority ignore and ICA this anomalous conse- proceedings. Following judgment entered quence. steps begin this court the the new XVIII. proceeding would have to be taken. Peti- represented by public tioner was defend- instance, idly this “standfs] ICA, er at appeal the court and on by though affecting clear’ error substantial well as on certiorari to court. Under the rights of the defendant was committed. Un- majority disposition attorney a new would circumstances, der the an invocation of the appointed have to be found and because of a plain part error rule would be the better public Fox, conflict within the defender’s office discretion.” Haw.

brought about the ineffective assistance 676. This case must be reversed because of majority. comments both the ICA and the plain error in the admission of appointed, After counsel new he or she Richards’ I statements and would so would have to become familiar the facts hold. (For "Judgment; Entry imposed special sentencing

19. The court's Notice of conditions. At the Sentence)," 8, 2002, hearing Probation dated October but on October Petitioner filed in court, open Stay Pending filed in the court on October indicates a "Motion to Mittimus following: "Judgment Appeal,” requested grant- and Sentence of the in which he "an order Probation”; ing stay pending appeal!,]” Court: "Term Two Years.” of incarceration omitted.) (Capitalization pursuant § In addition to the usual to HRS 804-4. On October probation, stayed pending appeal. terms conditions of the court also his mittimus was

545 In the Sixth Amendment Clause. XIX. tical to I, provides part, article section relevant sum, disposed of on In this case should that, prosecutions, the ac- all criminal “[i]n However, foregoing analysis. inasmuch the enjoy right ... to be con- cused shall the majority the discusses the confrontation as ac- against the the fronted with witnesses clause, hold join I that discussion and would cused[.]” that there a violation of Petitioner’s con- was jurispru respectfully disagree confrontation clause rights. frontation I Our own (1) case, dence, majority prior to the stemmed because instant Roberts, analysis in v. 448 U.S. on that treats a as from the Ohio relies case law witness (1980). if that cannot re- 100 S.Ct. 65 L.Ed.2d 597 “available” even witness Roberts, hearsay in the Court held that introduction member the events described (2) introduced, testimony a preliminary hearing trial of from sought statement to be under n witness appear at trial con inability to recall who did not Hawai'i case law witness’ stitutionally permissible in the statement where witness’ events described testimony questioning tested that was “unavailable” and the renders witness (3) inadmissible, majority’s ap- equivalent to cross-examination and where statement law, the wit case the circumstances established proach thus conflicts with Hawai'i (4) proposition unavailable “in the constitutional majority’s retention of the ness was 75, 100 (2) appearing at trial. Id. at in in “non-testimonial” cases but sense” from stated 2531. The Roberts test “condition[ed] cases undermines the S.Ct. “testimonial” admissibility maintaining integrity of all evidence objectives of “the twin ‘firmly rooted hear finding process” “ensuring] under a [fell] of the fact whether II, defendants[,]” ‘particularized guar say exception’ or [bore] fairness to Sua 92 Hawai'i ” (internal Crawford, 541 quotation of trustworthiness.’ P.2d at 969 antees Roberts, 60, 124 omitted), (citing by the U.S. at S.Ct. 1354 marks and citation served 2531). 66, 100 U.S at S.Ct. unavailability requirement under the Hawai'i Constitution, in this case I, adopted approach In Sua the ICA inability in the to recall the events respect to Supreme Court with what to that renders her unavailable statement in effect were “testimonial” statements and, therefore, her inadmis- extent at 86 later defined Crawford.20 the Hawai'i Constitution. sible under held, n. The ICA n. alia, trial of the inter that admission

XX. jury testimony who had grand of witness memory statement violated our no of the of the evolution of Some examination P.2d at clause. Id. at confrontation case law and of confrontation ICA reasoned that the witness’s 985. The necessary. The Sixth Amendment Confron- closely jury testimony resembled “grand all criminal requires that “[i]n tation Clause parte ex affidavit of the sort enjoy deposition prosecutions, the accused shall States], Mattox[ condemned v. United the witnesses to be confronted with [237,] 242-43, I, S.Ct. 337 L.Ed. [39 U.S. The text of article section against him.” It P.2d at 987.21 nearly Id. at iden- ].” Constitution past potentially relevant to later explained prove events the difference further 20. The Court prosecution. nontestimonial state criminal testimonial and between U.S. at -, Washington, - ments in Davis 21. The ICA reasoned as follows: -, (2006), 126 S.Ct. 2273-74 Obviously, ex Gooman[J [the when made in are nontestimonial [Statements] witnessJ testified parte grand jury proceeding. interrogation [The police cir- at the under the course defen- present and his indicating pri- to be objectively dant was not allowed that the cumstances jurors. placed grand interrogation was not mary purpose is to enable of the before defense Unlike preliminary procedure at a ongoing emergen- afforded police to meet an assistance hearing, had no They [the circum- cy. are testimonial when the defendant free to de- question The State was objectively Gooman. indicate that there is no stances grand jury velop testimony primary for the ongoing emergency, Gooman’s and that the such to, any any adver- manner it free of interrogation chose purpose is to establish or explained 73, (citation omitted). was that the confrontation clause at P.2d It was intended explained to exclude some alto- showing was that a of unavailabili “ gether and that cross-examination ty necessary was cen- promote to ‘to integri right tral to the of confrontation. ty finding process of the fact and to ensure 71, fairness to The historical evidence defendants.” Id. at leaves little doubt Lee, (quoting 267, the Clause State v. was intended to ex 276, 1100) (other 1091, hearsay. clude some See v. citations California Green, omitted). [149,] 156-57, 399 U.S. and nn. 9 this court in concluded Sua II, ]; and 10 S.Ct. 1930 see also that a witness physically present [90 who was [E. Cleary,] 252, stand, § McCormick [on trial and took the Evidence] was nevertheless (2d ed.1972) p. Moreover, underly 606 [ ]. “unavailable” in the “constitutional sense” ing policies support Roberts, the same by conclusion. envisioned where the witness emphasized The Court has memory that the Con alleged prior lacked of his state frontation preference Clause reflects a for ment. trial, face-to-face confrontation at and that After than applying more two of decades primary “a provi interest secured [the test, its Supreme Roberts Court Craw- right is the of sion] cross-examination.” stated that the admitting rationales for ford Alabama,

Douglas v. 380 U.S. 85 hearsay evidence under Roberts had not (1965).... S.Ct. 13 L.Ed.2d934 “generally original been faithful to the mean-

ing of the Confrontation Clause.” 541 U.S. testing accuracy These means of are so 124 S.Ct. 1354. The Court decided important that the proper absence of con- that the Roberts test was both “too broad” question frontation at trial “calls into and “too problem, narrow.” Id. The ‘integrity ultimate fact-finding pro- opined, Court was that “applies Roberts ” Mississippi, cess.’ Chambers v. 410 U.S. analysis same mode of whether or not the S.Ct. [93 L.Ed.2d 297] hearsay parte consists of testimony” ex which (1973) (quoting Berger California, 393 “often results in scrutiny close constitutional U.S. 315 [89 S.Ct. 21 L.Ed.2d in cases that far are from removed the core (1969)). 508] of However, concerns the Clause.” Id. “the test too [was also] Id. at narrow: It 987 P.2d at 984. admitted] parte statements that do consist ex testi- of applied adaptation This court Hawaii’s of mony upon finding a mere reliability. Roberts Sua II.22 course its This malleable standard protect often opinion, fails witness, Sua II although held that a against paradigmatic viola- trial, confrontation “present at .... [who] was unable to added). tions." Id. any recollect substantive elements of his grand ..., jury testimony Mattox, Relying I,23 ‘unavailable’ had Sua memory.” virtue of his loss 92 Hawai'i Court said: judicial Plainly, sarial or stantively intervention. preserve Goo- right [the defendant's man’s statement cannot be said to have been cross-examination. I, given closely (internal approximat- under circumstances Sua 92 Hawai'i at ing marks, citations, typical quotation omitted) those that surround the trial. and brackets added). (emphases clause is intended to ensure confrontation an means to test adverse defendant effective granted djefendant This court certiorari in I evidence. Sua and in [The was foreclosed from II, part, indicating Sua reversed the cross-examining ICA grand jury pro- Gooman at the that, hence, opinion, "[i]n contrast ceeding; to the ICA’s we hold there was no means which circumstances, under receipt grand certain presented against he could test the evidence him. jury testimony pursuant firmly excep- memory to a pre- Gooman’s lack of rooted at trial further general against tion to the hearsay may rule challenging vented [the from defendant adequately preserve grand jury a defendant's statement. cross- II, examination.” Sua 92 Hawai'i at grand ... Our review establishes that the P.2d at 961.

jury procedure primarily intended to facili- government’s obtaining tate the interest Accordingly, before, I, exception indictment. 23. As noted in Sua 92 Hawai'i at grand jury testimony cannot be said to sub- the ICA had ‘‘[the observed that principal nity [T]he evil at which the Con- to cross-examine” the declarant about Clause was directed was the the statement. Id. at 124 S.Ct. 1354 frontation added). civil-law procedure, mode criminal (emphasis particidarly parte its use ex examina- nine, In apparent footnote the Court made against tions evidence accused. spoke unavailability that it when it meant physical absence of the witness from The historical record supports also a that, trial: “[W]e reiterate when the declar- proposition: second the Framers appears trial, ant cross-examination at for would not have allowed admission of testi- places Confrontation Clause no con monial statements of a witness who did not prior straints all on the use of his testimo appear at trial unless he was unavailable to nial statements.” Id. at 59 n. 124 S.Ct. testify, and the defendant had prior had a added) Green, (emphasis (citing opportunity for cross-examination.... 1930.) U.S. at 90 S.Ct. As discussed herein, majority adopts proposition Our later cases conform to Mattox’s as the ap basis for its confrontation clause holding preliminary trial or proach. Majority 517-18, 168 opinion at hearing testimony only is admissible if the at 969-70. adequate defendant had cross-examine. XXI. 50, 53-54, 57, 124 Id. at (emphasis S.Ct. 1354 disputed the instant it ease is not added) (citations omitted). In line with this Staggs’ hearsay statement in and of itself rationale, Crawford, I, like Sua directed that would be considered “testimonial” under the grand jury inherently statements are testi aspect second identified above. Crawford monial and not to cross-examination Instead, disagreement majority with the and, thus, precluded by were the Confronta unavailability requirement, rests on the said, tion Clause. The Court “Whatever else aspect first of the rule. The ma- Crawford covers, the term applies [testimonial] at a jority adopts the federal of witness una- view prior testimony preliminary minimum to aat vailability as described footnote nine in hearing, grand jury, a or at a former before n. U.S. 124 S.Ct. Crawford. trial; police interrogations. and to These However, as elucidated the discus- practices are the modern kinship with closest following, sion under the broader construc- to the abuses at which Confrontation tion that been has afforded the Hawai'i Con- Clause was directed.” Id. at 124 S.Ct. clause, stitution’s confrontation a added). statement is not admissible evidence inso- explained It that the federal Confron- far as the declarant witness cannot recall the “commands, tation Clause not that evidence statement, events described in the even reliable, reliability but that be assessed in though physically present that witness is particular by testing manner: in the cruci- cross-examination at trial. ble of cross-examination.” Id. at S.Ct. 1354. The Court declared it did XXII. “not read say the historical sources to that a prior opportunity to cross-examine was A. sufficient, merely necessary, rather than a First, admissibility majority incorrectly condition for of testimonial relies statements.” Id. at 124 S.Ct. 1354. It case which law treats a witness as available that, purposes was thus held that an out- extent for confrontation even as to hear- nature, say of-court statement is testimonial in matters the cannot remember. witness only majority imposes such is admissible where The “[ ] the view of footnote unavailable, upon declarant nine [ ] the Hawai'i confrontation clause prior opportu- respect where the defendant has had a to testimonial statements. Mattox, grand jury testimony closely witness’s] resembled condemned In 156 U.S. deposition parte or ex affidavit of the S.Ct. sort 337.” B. point protections here is that The guaranteed Hawaii’s confrontation also cites to several state fully been afforded to an ac- clause have support interpreting cases cused declarant attends where proposition that confrontation “the federal trial and is cross-examined about the clause is not concerned with the admission of explicit right con- statement. The an out-of-court statement where the declar- appears and con- ant at trial and ferred both the state federal is cross-examined.” 517, Majority opinion at 168 P.3d at 969 frontation clauses is the to “confront (emphasis original). im These are adverse witnesses.” cases they implicate material insofar as do not 524, opinion Majority jurisprudence construing established our II, 70, (quoting Sua 92 Hawai'i at 987 P.2d at state constitution’s confrontation clause. See 968). this, upon majority appar Based “[ojther discussion The assertion that infra. ently Staggs concludes that because was jurisdictions ... have reached conclu similar testified, present physically she was sions!;,]” majority opinion at 168 P.3d at nine, pursuant to and the available footnote 969, wholly of Peti is irrelevant basis requirements apply.24 do not As application, prem tioner’s certiorari which is Crawford result, majority holds state only. ised on Hawaii’s constitution ment was admissible.25 majority’s contention that “the factual highlighted by dissimilarities the dissent do Addressing underlying premise of foot nothing underlying to undermine the ratio nine, arguable note it is that a witness who is nale confrontation clause is federal testify present to but cannot recall the hear not concerned with the admission of out-of- can, say any meaningful statement in issue ap court statements where the declarant it,” way, “explain “defend much less it.” See cross-examined[,]” pears majority and is supra Staggs note 22. In this case not was 523, n.11, opinion at 168 P.3d at 975 n.11 able to “defend” her statement or added), essentially beside the it,” “explain because did not remember she point. it. question See discussion is not infra. This case is concerned with the federal guaranteed whether a defendant is a “suc clause to the extent that it establishes a cross-examination,” II, cessful Sua 92 Haw requirement minimal our own confrontation ai'i 987 P.2d at but whether the may Consequently, clause not breach. be- opportunity afforded to cross-examine a wit construction, cause of our broader whether Plainly, a real one or not. ness is a witness or not the federal confrontation clause mere- who cannot remember cannot be cross-exam ly requires appear[ “the declarant ] [be] recollected, ined about what cannot be about at tri- cross-examined statements [his] cf. Clark, 926 P.2d at al[,]” Crawford, 541 U.S. at 59 n. 124 S.Ct. Eastman, supra; 81 Hawai'i at 913 P.2d pertinent. 1354. is not As set out in the 480-81, supra; Canady, 80 Hawai'i at margin, majority’s cited cases are factual- and, hence, supra, cannot ly and, hence, legally distinguishable be said to be confronted under the Hawaii question little relevance to the raised petition.26 Constitution. in the certiorari ambiguous. by majority 24. Footnote nine is somewhat It 26.The cases cited are also distin- read, does, majority apparently (1) guishable they be as the because involved statutes ex- physical presence (a) that a witness' for pressly allowing cross-exami- where admission satisfy availability nation is sufficient to re- persons are "available” for cross-examination or hand, quirement. (b) On the other the reference to allowing hearsay testimony per- of minors or "defendfing] explaining]” retarded, (2) or the statement could mentally sons involve cases and/or requirement be read as a that the witness be able memory where the witnesses did not lack or respond substantively to defend the statement respond the witness was able to to some of tire explain or to it. questions, aspect the testimonial of Craw- argued. ford aside, before, as noted Crawford Corbett, (l)(a) (b), Staggs' hearsay explain testimony does not how As to v. State (2006), nevertheless admissible. Kan. the court enough presence at trial is to make XXIII. cal (the un- under witness “available” essence, protection In broader afforded premise majority’s determi- derlying requires that by the Constitution27 Hawai'i Staggs therefore deemed nation that presumed “unavailable” in the con- cross-examination), Petitioner sense, and, thus, frontation her out-of-court Constitu- physi- if mere makes his claim under statement inadmissible. Even Ke, admitting with Officer was not a held that the trial court did not err her conversation transcripts eyewitnesses’ deposi- mentally of the two at the time of the minor or disabled assault, pursuant alleged spon- tions to Kansas Statutes Annotated and her was not 60-460(a), "[ejvidence taneous, § which states that response question- to Officer Ke's but statement which is made other than a witness ing. hearing, testifying prove while at the offered to State, (Tex.Ct. 183 S.W.3d Gomez stated, hearsay the truth of the matter is evidence witness, Staggs, App.2005), unlike was able the except a] and statement [where inadmissible regarding specific questions answer details to previously by person made a who is [is] during three of the State’s about the assault hearing at the and available for cross-examina- examinations, testimony regarding provide direct respect tion with to the statement and its living arrangements appellant with the dur her matter, provided the would admissi- statement ing tions, the direct examina the first two of State's testifying ble if made declarant while as a regarding the assault be cross-examined added.) (Emphasis witness.” during appellant's two cross-examina the first and, thus, Staggs, Unlike who could not recall tions, undergo lengthy questioning during and a explain previous defend or her out-of-court testi- regarding appellant’s the first cross-examination mony, eyewitnesses experi- the Corbett did not living arrangements appellant. with the her fact, memory. eyewit- ence a of In the such loss State, (3), v. 271 As to in Robinson trial, were nesses testified at the defendant’s 194, 584, (2005), Ga.App. 196 "al- 610 S.E.2d cross-examination, available for extensive also they though testified that did not [two witnesses] significant portions incorporated their which incident, surrounding many the recall of the facts Tester, deposition testimony. In State v. 179 Vt. gave ques- responsive to some also answers both 627, 215, (2006), 221 895 A.2d unlike he did The witness "testified that tions." first testimony, question the evidence in was admitted him, speak that he did not not know who shot (VRE) Rule under Vermont Rules of Evidence Johnson, and that he never even with Detective 804a, hearsay testify which a allows witness de- [The witness] second saw Detective Foster. years made a child ten old or statements anything.” Staggs, telling Detective Foster nied younger are offered in a sexual if the statements however, regard- questions unable to answer victim, alleged case where the child is abuse ing Ke. her with Officer conversation preparation the were not taken in for statements State, (4), Mumphrey 155 S.W.3d As to v. legal proceeding, child available to testi- a the is (Tex.Ct.App.2005), v. and Commonwealth 651 "time, fy, and the content and circumstances of Ruiz, 826, (2004), the 817 N.E.2d 771 Mass. provide indicia of the statements substantial through the were admitted witnesses’ statements 804a(a)(l)-(4). trustworthiness.” VRE Rule exception spontaneous the utterance Johnson, People Ill.App.3d In v. Ruiz, found that the evidence rule. In the court victim, (2005), N.E.2d a Ill.Dec. properly spontane- admitted under the trial court minor, mentally disabled was able to recall daughter’s hearsay exception the ous utterance alleged of sexual acts that had taken incidents shortly the officer after statement made to defendant, although place with the he later re- daughter her mother. witnessed her father stab Furthermore, story. the victim’s sta- tracted his Staggs, Unlike the defen- 817 N.E.2d at 777-78. mentally permitted retarded the admission tus as argue that the admission of dant did Compiled Illinois of the statements under 725 a spontaneous constituted violation 5/115-10(b)(3), pro- utterance which Annotated Statutes principles Id. at 778 n. 5. stated in the Therefore, evidence in Crawford. vides for the admission relevant. is not Ruiz prosecutions physical or sexual acts commit- against age children under the of thirteen or ted opinion Accordingly, analysis in this moderately mentally persons retarded. who are I, grounded 14 of the Hawai’i in article section time, content, Finally, and circumstances of Long, Michigan v. 463 U.S. Constitution. See provided suffi- the victim’s statements 77 L.Ed.2d 1201 n. 103 S.Ct. safeguards reliability as the cient inasmuch " that, judgment (stating a 'where the terminology unexpected of a child of victim used upon grounds, two one of which court rests state age, consistently repeated a the victim similar character, statements, and the other non-federal is federal respite the statements to ground jurisdiction fails if the non-federal our investigator with were consistent worker ground adequate other, independent of the federal spon- were made each and the statements ” (quoting support judgment' Fox Film taneously. Muller, contrast, Corp. 56 S.Ct. 296 U.S. By difficult time re- had a (1935))). assault, membering alleged 80 L.Ed. 158 could not recall First, prosecution produce, must tion and not the federal constitution. either under Hence, necessary unavailability of, juris- it is to examine our or demonstrate the prudence declarant whose it wishes to use concerning “unavailability re- Second, against upon quirement.” defendant. unavailable, showing that the witness is majority acknowledges may, that “we adequate bear statements that indicia give under the Hawaii Constitution broader reliability are admissible. protection than that afforded the United (quoting Id. at States Constitution” but contends “that max State v. Ortiz, justify im does not 74 Haw. 845 P.2d 555-56 the construction of consti (1993)) Roberts, (citing tutional none 448 U.S. at appropri barriers where are (other omitted) 2531) n.9, Majority (empha- ate.” at 517 S.Ct. opinion citations added). test, However, court, adopting at 969 n.9. sis because this this court noted, Supreme previously repeatedly chose not to the U.S. has held that follow Court’s unavailability require- the Hawaii abandonment of Constitution’s confrontation protection post-Roberts. clause than ment As the ICA noted in Sua affords broader its I: counterpart, majority’s federal decision employ unavailability the federal view of necessity, to the rule of the Hawaii [A]s ignores past precedent. McGriff, See 76 Haw Supreme “parted ways Court has 156, (stating

ai'i at 871 at 790 this Supreme the United Court which States ways court “parted has with the United [Roberts,] held that has sixth after Supreme States Court which has held that amendment clause does not confrontation the sixth confrontation amendment clause showing a unavailability necessitate showing does not necessitate a of unavailabil falling evidence within certain hear ity falling hearsay for evidence within certain say exceptions.” [McGriff], 76 Hawai'i (internal exceptions” marks, quotation brack 156, (citing [at] 871 P.2d [at] United ets, omitted)); I, and citation Sua 92 Hawai'i Inadi, 387, 475 U.S. States 106 S.Ct. (confirming at 987 P.2d at 990 “that the (1986) (statements 89 L.Ed.2d Hawaii confrontation clause affords broader co-conspirator non-testifying may of a rights to Hawaii’s citizens than the federal against regard introduced the defendant in confrontation the sixth clause amend unavailability less of the declarant’s at ment”). trial); Illinois, White v. 502 U.S. (una S.Ct. 116 L.Ed.2d 848

A. vailability required for excited utter before, As noted court this has said that exception)). ance right cross-examination is at heart of the I, Sua n. Hawai'i at 86 of confrontation: added) (some n. (emphasis parallel cita right of confrontation affords the ac- omitted). Likewise, tions Sua II declared cused both opportunity challenge to that, regards part the first of the Rob “[a]s credibility veracity prosecu- test, that, erts we have ‘remained resolute an tion’s witnesses and occasion for the under the confrontation clause of the Hawaii jury weigh to the demeanor those wit- Constitution, showing of the declarant’s Thus, ... among nesses. the interests chief unavailability necessary promote is by secured clause confrontation integrity finding process of the fact and to ” right to one’s accuser. cross-examine ensure fairness to defendants.’ II, Sua 987 P.2d Hawai'i at at 968 Lee, at (quoting 987 P.2d at 969. added) (internal (emphasis quotation (other marks 925 P.2d cita omitted). previously apply citations omitted)). Further, tions and brackets this “ Roberts, ing was declared the admis ‘[unavailability court declared that by sion of is limited the unavailabili showing be demonstrated ... loss ” ty requirement: memory.’ (quoting Apilando, 79 Haw 144) (emphasis [T]he confrontation clause restricts ai'i add ed) (other omitted) range ways. (ellipses points admissible two citation original)). Thus, prior Crawford, even violation of guaran- the Hawai'i confrontation staunchly court unavailability retained re- tee. quirement that encompassed memory. lack of XXIV.

See Id. at 987 P.2d at 969. Throughout opinion, its re- peatedly attempts supposed draw dis- B. tinction between the “semantic statement paradigm, Under this to the extent that a ‘available for cross-examination’” statement, witness cannot remember her she added) and “constitutionally infused unavailable, must be considered at least with statement ‘available as a witness for the ” respect of such statement. See, prosecution.’ e.g., majority opinion at Manifestly Staggs’ presence mere at trial as 526, 168 majority proposes P.3d at 978. The a witness would not enable Petitioner distinguishing ap- between the declarant who cross examine her about the state- pears on the stand “available for cross-exam- ment through admitted Officer Ke. Conse- ination,” majority opinion at quently, there was no for Peti- 978, and the declarant iswho “available as a tioner challenge the assertions in that id., prosecution[,]” witness for the But for cross-examination. confrontation purposes, clause this is a dis- tinction without a difference inasmuch as the primary object “the of the consti- dual description are, identifies witnesses who tutional provision in [confrontation] fact, one and the same. The confrontation question prevent depositions was to guarantee, terms, clause applies its parte affidavits, ex such as were some- prosecution” to a “witness for the because cases, being times admitted in civil used protects only the clause It accused. against prisoner personal lieu of a only the enjoy defendant who “shall examination and cross-examination of to be confronted with the witnesses the witness in which the accused has an against I, § him.” HI Const. Art. 14. Be- opportunity, testing not the rec- of cause it is right established that the of cross- ollection sifting and the conscience of examination is the crux right of con- witness, the compelling but him to of frontation, purposes for of Staggs, this case stand jury with the in order face face as a prosecution,” “witness for the is the they may her, that look at him or and same witness “available for cross examina- judge by upon his or her demeanor the See, Peseti, e.g., tion.” State v. stand and the manner in which he or 172, 180, (2003) (stating 65 P.3d 127 that gives she testimony his or her whether Confrontation provides “‘[t]he Clause two worthy he or she is of belief” types protections of for a criminal defendant: Faafiti, 640-41,

State v. 54 Haw. right physically testify to face those who (1973) Mattox[, (quoting her], against him and [or to conduct ” U.S. at (emphases 15 S.Ct. 337] (quoting cross-examination’ Pennsylvania added) (brackets omitted)). Ritchie, 39, 51, 480 U.S. 107 S.Ct. (1987).)). L.Ed.2d 40 I, Sua 92 Hawai'i at (brackets omitted). extent, then, To the Further, majority it is curious that Staggs could not remember her statement to proposes that a whether witness is “available Ke, Officer she anwas “unavailable” witness for cross-examination” is not a matter of as to the matter of the statement importance, constitutional in that we have though testify even present she was and said pri- cross-examination is the defendant’s examination, subject Crawford, cross to mary confronting means of the witnesses contrary, notwithstanding. against e.g. Understand- him. See id. at “ then, ably, that, Petitioner (explaining observes “under ‘[c]ross-examination unavailability Sua [IIJ’s definition of as in- principal by means which the believabili- cluding loss, memory [Staggs] ty was unavail- of a testimony witness and the truth of his ” law, light In Alaska, able.” of our case (quoting the admission are tested[ ]’ Davis v. Staggs’ hearsay of thus was a U.S. 94 S.Ct. 39 L.Ed.2d 347 semantically (citations omitted))). for (1974) Finally, pro- available cross-ex- theless physical presence of his majority, amination virtue posed drawn with distinction trial,” majority opinion at enigmatic and respect, rests on an all due added); according to the ma- (emphasis majority The re- incomprehensible rubric. “thereby providing oppor- Sua jority, with employs supposed distinction28 peatedly id. One is Gooman,” tunity to cross-examine any authority para- citation to without for consti- contradictory either “available” or “unavailable” doxically maintains is not “[i]t “constitutionally purposes tutional suggest that a be constitu- witness hand and “semanti- unavailable” on the one tionally for the ‘unavailable’ as witness cally on the other.29 claimed available” prosecution virtue of that witness’ memory out-of- at trial as to loss semanti- statement, simultaneously yet court XXV. cally for cross-examination’ as ‘available of Sua import attempting to refute the physical presence on

result of witness’ II, majority purports rely fol- on the Majority opinion at the stand.” lowing passage from that case: added). To the con- P.3d at 978 matter, Similarly, in the Gooman on Sua II trary, concept the former rests jury grand made assertions before diametrically opposed latter so and is memory at trial. later claimed a loss of availability incorpo- that is called “semantic” opportunity to provided Sua was with nine. rated footnote Crawford’s regarding cross-examine Gooman his loss memory. grand respect, Inasmuch as Gooman’s regard, In this and with all due requirements met both testimony linguistic gymnastics jury majority engages test, the Roberts and Sua was able to cross to revise Sua II. in an effort to re- that “Sua examine Gooman [II] is consistent with contends failure incident, alia, alleged member the distinction, cannot inter holding, we say grand constitutionally that the admission Gooman’s Gooman ‘unavailable’ jury testimony right to con- prosecution by of his violated Sua’s a witness for the virtue frontation. memory, Gooman never- loss 804(a)(5) required majority argues per declarant example, that it is HRE that the 28. For hearing proponent erroneous substitution of the from the and the "[ids "the dissent's absent cross-examination,' phrase, 'available for the declarant's statement has been unable to prose- phrase 'available as a witness for the by process procure attendance the declarant’s cution,' foregoing appearance 269, that creates the of Hawai'i at other reasonable means.” 83 527, incompatibility!,]" majority opinion at 168 804(a)(5)). (quoting P.2d at HRE Rule 925 1093 979; and that "the dissent believes that P.3d at prosecution unable to make a Because the was application here mandates the of good showing procure faith of its efforts to Staggs constitutionally conclusion that was trial, at the statements declarants' attendance memory despite the fact that her loss 'available' “excep- were inadmissible and did not meet the constitutionally her 'unavailable' would render requirement.” clause tion to the confrontation 527, [II,] majority opinion 168 under Sua at 278, 1102. The case focused Id. at 925 at P.3d at 979. unavailability prong if it on the because was unavailable, were then shown that the declarants 275, Lee, majority at 29. The cites to their statements would be admissible under the 1100, proposition P.2d at for the that the 925 " testimony” hearsay exception. Id. at "former alternatively 'unavailability' paradigm has been ” 276, 925 P.2d at 1100. majority necessity!,]’ 'rule of referred to as the opinion case, notes, majority correctly In this as the 976, 524, "imposes P.3d at which at 168 conclusively "Staggs' 'unavailability' has been es- prosecution to demonstrate the a burden on the necessity by memory!,]” majority her lack of tablished introducing prior out-of-court of opinion at at 168 P.3d thus whether by demonstrating unavailability’ of unavailability by Respondent trial!,]” id., irrel- was shown "the consti- the declarant at but that Further, term, 'unavailable,' prior evant. because Lee was decided tutionally means that infused Crawford, had the Lee court found that the the declarant is unavailable as a witness for unavailable, trial[,J" Crawford, original). prosecution (emphasis were under at id. in declarants legally and is un- This distinction does not exist statement would nevertheless be inadmissible wholly absent in Lee. it could be shown that the defendant had less opportunity "prior the declar- prosecution to cross-examine” in Lee whether the The issue was which, unavailability ants. 541 U.S. at 124 S.Ct. 1354. could show the declarants'

553 Majority (brackets, opinion at 168 P.3d at Id. 987 P.2d at 977- at internal II, marks, omitted). (quoting quotation Sua at Hawai'i and citations It 973) (some emphases empha reliability omitted and prong was determined that the was original). Citing in paragraph, grand jury testimony sis this the met because Gooman’s majority that, although Staggs hearsay exception maintains fell within of “recollec- claimed she could not recall the incident tion recorded.” question Ke, or her statements Officer prong analysis, The second of the Roberts op Petitioner nevertheless “had a sufficient demonstrated, unavailability once has been portunity to cross-examine about her upon reliability focuses of the witness’ out-of-court statement” because grand statement. Inasmuch as Gooman’s “Staggs physically present was at trial and jury testimony “firmly falls rooted within thereby available cross examination.”30 hearsay exception,” “past as recollection Majority opinion at 168 P.3d at 976 recorded,” and therefore bears an ade- added). (emphasis plainly This misconstrues Ortiz, quate reliability, indicia of see passage. testimony Haw. satisfy should clause. confrontation

A. added). (emphasis Id. at already Although it had had decided Roberts First, quote from II nothing Stla had satisfied, been this court went to consider unavailability requirement, to do with the but testimony whether was also marked prong “reliability.” second of In- trustworthiness,” that, “guarantees stating of deed, Gooman, although this court found that highest protection “to ensure the standard of trial, present at was unavailable for confron- confrontation, of Sua’s constitutional of purposes grand jury tation as to his testimo- analyze grand jury we whether Gooman’s ny memory. because his lack testimony ‘particularized guarantees bore prong The first of the Roberts test was ” passage trustworthiness.’ Id. The cited Although satisfied case. he is found at the conclusion of trial, present at Gooman was unable “guarantees the discussion of of trustworthi- any to recollect substantive elements ness,” unavailability, and concerned not but and, grand jury testimony therefore, was reliability. “unavailable" virtue his loss mem II, supra, in Sua as noted this court ory. Apilando, See Hawai'i “resolutely]” unavailability reaffirmed the P.2d at 144. prong encompassing memory loss and II, Sua P.2d at grand jury testimony held Gooman’s added). This court then went on requirements it “met admissible because both “reliability” prong of Roberts. test, and[,]” addition, Roberts applying unnecessary reliability Upon demonstrating that a a second but witness is unavailable, test, stated that Sua had the under the second half of the test, only Gooman on his failure to re- Roberts statements that bear cross-examine 75, jury “adequate reliability” may grand transcript. member the Id. at indicia of be added). (emphasis explic- “Reliability” may 987 P.2d at 973 As admitted into evidence. First, itly passage, forth in the of ways. reliability in set admission be shown two jury grand transcript Gooman’s in Sua II may be inferred more if it falls without grand jury firmly hinged on the fact that Gooman’s excep- rooted within testimony requirements of the tion .... “met both added). (emphasis Roberts’ test.” Id. Alternatively, reliability may be demon- Roberts, upon showing particularized court’s of strated of Under this construction “unavailability” memory. guarantees of trustworthiness. includes loss of added), Although point majority 30. at one states the it rests its ultimate decision on whether question is whether Petitioner was afforded “a opportunity to was "suffi- cross-examine cross-examine,” meaningful opportunity to ma- cient.” jority opinion (emphasis at at Thus, concluding regarding examine Gooman his failure to re See id. that “both re- met, alleged quirements” Sua II that member the incident as a mere ‘cir were confirmed fact,’ ignores ... Gooman because lack cumstantial Sua’s citation was unavailable of v. ]Carey, memory. It be of A.2d [United [647 would inconsistent with States of (D.C.1994) II, then, ],” despite majority opinion that Sua to conclude Goo- at memory, reading lack of he fair man’s was available for P.3d at and “a of Sua purposes, majority pro- as the rejected confrontation indicates this court the confrontation II, poses. Likewise, on analysis independent based Sua it would clause on and dis- two decide, contradictory majority be as the positive grounds: coequal but both does, despite Staggs’ memory, lack that prongs of the Roberts test were met and she was available for confrontation clause Sua opportunity had sufficient to cross exam purposes as to her statement. ine[,]” majority opinion at 168 P.3d at 978. B. majority appears to assert that if neither prongs of the the Roberts test Second, to construe Sua’s “to II, testimony were met in Sua would regarding cross examine Gooman his failure grounds nevertheless on be admissible remember,” id. at 987 P.2d at as purported oppor that there “sufficient was more than a fact circumstantial would render tunity Majority opinion to cross-examine.” noted, internally Sua II inconsistent. As 168 P.3d at 977. This assertion is II, grand jury Sua admission of the testimo- wrong negates necessity because ny grand rested on the fact “Gooman’s following the test at all. Roberts As this jury testimony requirements met both of the II, court noted Sua court has re “[t]his Further, prescribed Roberts’ test.” Id. peatedly followed the test Roberts[.]” court, then, memory this lack Gooman’s Hawai'i at P.2d at 969 testimony grand jury as to his established added). ignores It Sua also II’s statement unavailability prong of the Roberts test. Carey employed additionally was con para- That conclusion must viewed as already firm holding rendered under Ha mount to the that Gooman observation was Roberts; supplant waii’s version of not to to cross-examination at holding. If other considered than a trial, i.e., available, unnecessary was which fact, Carey circumstantial would be contra the decision. This is because Sua II holds dictory Roberts, of Sua formulation of IPs that, clause, as to Hawaii’s confrontation memory because Gooman’s loss made him “unavailability may be demonstrated ... purposes unavailable for confrontation 969; memory,” loss id. Carey the same would deem him facts requirements” “both of Roberts were met Therefore, purported available. “two in II; according unavailability, to Sua one of dependent majority grounds,” opinion ... requirements, incorporates the two said loss 526, 168 by majority P.3d at asserted memory; unavailability of the satisfaction cannot coexist. prong necessary for admission grand jury testimony; grand jury testi- proposition further cites the mony court; was deemed admissible “forgetful that a declarant [is] available hence, Gooman deemed unavailable in Majority opinion cross examination.” requirement fulfillment of the first in Rob- (internal quotation erts. omitted). marks and citation The other con- aside, Carey inappli-

siderations discussed 2. First, statement, cable. the witness’s admits recorded, majority opines interpret past The ted Carey, “[t]o recollection the requirements.31 conclusion that Sua was able to cross- A.2d at satisfied four (2) original 31. The four criteria were: the written must be an (1) have the witness must had first-hand memorandum made at or near the time of event; knowledge of the approach post-Roberts, this court is Carey concluded that the declarant with our by ap required Supreme to the “was available for cross-examination not to adhere U.S. unavailability pellant’s trial because the forth in counsel” four Court’s view set II, requirements Id. at 59. at were shown. Un Sua 92 Hawai'i Crawford. Carey, supra in in like see note the at 969. case,

present not for has “vouch[ed] mentioned, majority adopts As the the accuracy” any written memorandum of Roberts test in “nontestimonial” situations. nothing Carey the statement. Thus affords 979; Majority opinion at P.3d at see upon Staggs’ which to base admission of —Davis, -, U.S. at 126 S.Ct. 2273-74 hearsay Additionally, statement. in its deci (“Statements are nontestimonial made when Carey solely sion relied States v. United police interrogation in the course of under Owens, 484 U.S. 108 S.Ct. objectively indicating that circumstances (1988), which, infra, L.Ed.2d 951 as noted purpose interrogation primary of the is to jurispru has been disavowed our own police ongoing enable assistance to meet an controlling dence. Because the facts and the ’ emergency.”) adopting In the Roberts test precedent play Carey indisputably in are situations,” majority “nontestimonial distinguishable inapplicable from preserves unavailability paradigm as ex ease, Carey support instant not does i.e., II, plained in Sua a witness is unavail majority’s use of it. purposes if able for confrontation the witness sum, preserve integrity of the memory lacks of the statement. But II, holding unavailability analysis in Sua situations, majority as to testimonial that, necessarily proposition must rest on the adopts that a the federal view witness is physically while Gooman was “available” be- purposes for if available confrontation even trial, present cause he was he was never- memory of the witness lacks purposes “unavailable” theless admit- for majority Because the saves the statement. ting forgotten grand jury testimony. unavailability paradigm in Sua II for nontes- Otherwise, the first factor referred to—una- situations, unavailability require timonial vailability under the Roberts test—could not logically applied in ment must be testimonial correctly have been satisfied. Read and in situations as well. context, then, the statement Sua II that provided “Sua was with The Court noted in that “[t]he regarding examine Gooman his failure cross text, history underly- constitutional like the remember[,]” confrontation, ing right of the common-law support the conclusion that would especially reflects an acute concern with the admission of out-of-court state- specific type of out-of-court statement complied ment the confrontation clause with (testimonial statements) 541 U.S. at [ ].” Constitution, majority in the Hawai'i as the affording Consequently, S.Ct. argues. protections for nontestimo- more substantial does, than nial as the statements

XXVI. statements, incompati- testimonial would infirmity majority’s reading greater constitutional concerns of ble with the inconsistency regarding statements. To rule expanded II is testimonial Sua produce majority’s apply thusly the federal the anomalous result decision would unavailability allowing inculpatory matters into ev- version of in testimonial state- unavailability ments, despite the declarant’s apparently but to retain Sua II’s Rob- idence requiring una- unavailability respect in testimonial situations but of erts test of non- vailability to be shown nontestimonial situ- testimonial statements.- As was case States, A.2d had a clear Mitchell v. United 517-18 the event and while the witness and accurate it; memory curiam) (citation (D.C.1977) (per internal lack a recollec- omitted). witness must quotation marks event; tion of the Carey, 647 A.2d at 58. accuracy the witness must vouch for the of the written memorandum. departure testify.32 A ations. from Sua II’s unavaila- But under Hawaii’s version of Rob- bility erts, II, paradigm respect explicated to testimonial as in Sua a declarant is compromises “integ- present testify statements the unavailable even if at trial to rity” process memory and “fairness” of the if lacking heretofore the declarant is as to enveloped fact, then, hearsay subject our state constitution’s confron- the In matter. “unavailability” tation clause. employed the term as it is majority disparate refers to two con- cepts. concepts The two are not identical as XXVII. but, rather, majority implies contradicto- opposition foregoing, majority ry. baldly ‘unavailability’par- contends that “the core, then, At its the “result achieved” adigm is retained in both testimonial and majority, majority opinion at situations, nontestimonial and the re- [that] at P.3d is indeed anomalous. men As Majority not sult achieved is anomalous.” before, said, tioned this court has in adminis opinion at at According 979. clause, tering Hawaii’s confrontation that majority, “if an out-of-court statement is integrity finding process “the of the fact and testimonial, subject it is to the Crawford ensuring] ... fairness to defendants” en analysis, which that mandates the witness compasses proposition that a witness who ‘unavailable,’” an “[i]f out-of-court memory lacks is unavailable in the confronta nontestimonial, subject statement is it is II, tion Sua sense. 92 Hawai'i at analysis, requiring showing the Roberts a ” eschewing approach, P.2d at 969. In this the declarant is ‘unavailable[.]’ majority abrogates safeguax-d long place Majority opinion at 168 P.3d at 980 in our constitution. added). (emphases previously, But as noted term,—“un- although employing the same majority

available”—the XXVIII. applies the term dif- ferently opposed in testimonial as to non- emphasized It must be that Staggs’ hear- testimonial situations. say statement was used as substantive evi- “unavailability” For by Respondent. under does dence Our cases have rec- Crawford apply not at if present ognized all the witness presence amenability that mere examination, asserts, majority as the itself to cross-examination in the context of a wit- majority opinion memory see at satisfy ness’ loss would not confron- 969-70, even if the statement respect otherwise tation interests with to admission of Contrastingly, “testimonial.” under this as substantive evidence. See East- test, Clark, court’s version of the supra, Roberts a witness man and This is infra. is considered “unavailable” toas the relevant consistent with the rationale in Sua II. matter, subject present subject Thus, brief, even if opening “urges Petitioner cross-examination, if the witness lacks memo- court to reach the same conclusion as did ry reiterate, pur- matter. To Canady complainant’s court: Crawford, alleged suant declarant is unavailable statement was not admissible only present if the declarant is not at trial to subjected because she could not be to cross it, majority 32. present maintains does would have one is to defend and "Crawford constitutionally explain state a declarant is though ‘un- one’s statement even he or she present if available’ the declarant Further, is not at making has no recollection of ever it. trial,” but asserts instead that the confrontation prior page, majority posits on the that in Sua clause "does not bar admission of a statement II, so semantically "Gooman was nevertheless avail- long present as the declarant is at trial to defend physi- able for cross-examination virtue of his explain it. at 541 U.S. at 60 n. trial, presence thereby providing cal Sua with Majority opinion 124 S.Ct. 1354.” to cross-examine Gooman.” Ma- However, majority does not jority opinion (emphases explain how these two are statements distin- added). both footnote nine and Crawford’s guishable in the case. majority’s own statements lead to the conclu- majority being "present long There is no difference between sion that believes so de- "being present merely present at trial" and at trial to defend or clarant is on the stand for exami- if, nation, explain” as the the confrontation clause is satisfied. concerning subject examination matter of includes situations which the declar- the statement as envisioned under the rule.” ant: Canady,

In the ICA noted that the draft- rejected ers of the HRE had the Owens memory Testifies to a lack- of approach embraced in the subject matter of the declar- Canady instant case. An issue ant’s statement. prior whether inconsistent state- 80 Hawai'i at 479-80 n. 911 P.2d at 114- ment was as admissible substantive evidence However, 15 n. 13. in contrast to the U.S. precondition under the in HRE Rule 802.1 Owens, Supreme Canady Court’s stance in subject “the declarant is to cross-exami- explained that the HRE drafters decided concerning subject nation matter of the prior might inconsistent statements statement.” 80 Hawai'i at [declarant’s] evidence, used as substantive unless the wit- 802.1(1)). 112 (quoting at HRE Rule longer ness could no recollect the events in ICA, As noted Owens had construed the statement. language similar in Federal Rules of Evi- commentary to HRE Rule 802.1 (FRE) 801(d)(1)(C). dence Rule Id. at law, explains that under prior the common 911 P.2d at 113. inconsistent statements were considered that, The Court reasoned under a “natural impeach and could not be used to reading” phrase “subject to cross- Commentary a witness. to HRE Rule concerning examination the statement” in (1993). 802.1 The FRE the com- modified 801(d)(1), required FRE Ride all that is prior mon-law rule and allowed inconsis- stand, placed that the witness “is on the tent statements to be used as substantive oath, responds under willingly to ” proof the matters asserted the state- questions, even the witness was unable if “ ment, if ‘given the statement was under testify any about the events set forth subject penalty perjury oath to the at a [Owens, prior in the statement. 484 U.S.] trial, hearing, proceeding, or other or in a 561, 108 S.Ct. at 844. ” deposition.’ (quoting Id. FRE Rule 801(d) (citing Id. FRE Rule add 801(d)(1)(A)). HRE adopted Rule 802.1 ed) (brackets quotations and internal omit exception law, to the common federal ted)). however, compared The court the lan by adding and went further two more ex- 801(d)(1) guage FRE Rule to FRE Rule ceptions hearsay objection 804(a)(3) an “which defined unavailable wit signed adopted statements and recorded person ness who ‘testifies to lack of statements. Id. memory matter of the declar- ” (brackets omitted) ant’s id. 911 P.2d at statement^]’ added). (emphases (brackets omitted) (empha and footnote added) Owens, (citing 562, 108 sis 484 U.S. at precept. Sua II corroborated this 804(a)(3))), (quoting S.Ct. at 844 FRE Rule [Canady Sua relies on for the assertion ] opining that the “difference that “a witness is unable recall the ‘Congress ... chose not to make witness allegedly prior events described in the forgetfulness exception to the admissibili satisfy require- statement does not ty of a out-of-court identification FRE under 802.1[,] ments of HRE Rule and therefore ” 801(d)(l)(C)[,]’ Owens, (citing Rule id. not be statement would admissi- (quoting U.S. at 108 S.Ct. FRE Canady, complaining In ble.” witness 804)(a)(3)) (brackets omitted). Rule “testified that she could not recall Canady the ICA noted that HRE Rule allegedly events that she described 804(a)(3) “subject employs the same matter” statement.” 80 Hawai'i at language, stating that: matter, In the wit- [the provides: HRE Rule 804 nesses,] Kaowili and denied Puahi[] ever Hearsay exceptions; having Rule 804. de- made the relevant statements to the unavailable, (a) Therefore,

clarant Definition of una- detective. unlike the witness in vailability. “Unavailability Canady, as a witness” who was rendered “unavailable" loss, memory virtue her Kaowili and examine the witness about the events con of statement, in citing Puahi were “available” tained the Eastm both cross-ex- for fulfilling an.34 Clark reiterated that Accordingly, the agree amination. while we requirement HRE cross-examination under reading Canady, inappo- with Sua’s it is of Rule 802.1 also satisfies the to confron site to the matter. Clark, in tation criminal cases. See 83 Ha 77, 92 Hawai'i at (emphasis 987 P.2d 294, (stating wai'i at 926 P.2d at 199 added). subject the “[b]ecause witness is to cross- Eastman, this court held that the com- examination, the substantive use his [or of plainant’s prior inconsistent statement con- prior inconsistent statements does not her] Voluntary tained in a “Victim’s Statement infringe the sixth amendment confrontation (WSF) gave Form” police which she to a ” rights (quot in accused criminal cases of requirements officer “met all the under HRE Eastman, ing 913 P.2d at 802.1(1)(B) admissibility Rule for as substan- (citing Commentary to HRE Rule 802.1 guilt.” tive evidence of [the defendant’s] Green, (citing 399 U.S. 90 S.Ct. Hawai'i at 913 P.2d at Canady, 63. Like 489)) added))). (emphasis L.Ed.2d Clark ex Eastman confirmed that HRE Rule trial, plained that “at [the defendant’s] 802.1(1)(B) required, precondition as a of ad- prosecution directly examined [the declarant] missibility, testify that “a witness must about testimony as a witness and elicited from her subject prior matter his or her state- regarding surrounding the circumstances subject ments so that the witness is to cross- September prior 1993 incident and her concerning subject examination matter statement to [the detective] wherein she had prior (emphasis those Id. statements[.]” stated that in [the defendant] stabbed her added).33 Subsequently, Eastman further and, thus, the chest” the declarant was “sub concluded that the cross-examination of the ject concerning to cross-examination the sub complainant constitutional ject “satisfied prior matter her statement to [the admitting trustworthiness concerns over [the Id. at detective].” 926 P.2d at 200. complainant’s] prior inconsistent statements ultimately In Clark it was held that evidence, in the WSF into because the cross- declarant’s “cross-examination satisfied con- gave oppor- examination [the defendant] stitutional and trustworthiness concerns tunity complainant] fully to have [the ex- admitting over prior into evidence her incon- plain to the why trier her in-court of fact sistent statements to [the detective] because statements were inconsis- out-of-court [the defendant] afforded tent, which, turn, in enabled the trier of fact fully explain to have [the declarant] to the lay.” to determine where the truth Id. at why trier her in-court and fact out-of- added). (emphases inconsistent, which, court statements were Clark, Subsequently in turn, this court reaffirm- enabled the trier to deter- of fact justification allowing ed that the the use lay." (citing mine where the truth East- man, 65) statements as substantive evi- 81 Hawai'i at added). opponent’s ability dence was the (emphases to cross- Eastman and Clark indi- requirement, 33. As to this Eastman concluded The situation envisioned is one where the prosecution directly “the because examined witness has testified about an event and his complainant] [the as a witness and elicited testi- prior or her written statement also describes mony argument from her about her [the with that event but is inconsistent with his or her September defendant] on the events testimony. Since witness can be cross- eyebrow, that caused her to suffer a statement, swollen left examined about the event and the prior alleging ..., and her statements in the WSF the trier to credit his or her of fact free slapped [the had defendant] her present testimony or his or her prosecution complainant] subject [the made detennining where the truth lies. ... opposing concerning counsel’s cross examination Eastman, 81 Hawai'i at subject complainant's] prior [the matter of (citing Commentary to the to HRE Rule statements in the WSF.” 81 Hawai'i at 802.1.). 913 P.2d at 63. 83 Hawai'i at (brackets omitted) added) (ellipsis points origi- nal). 34. Clark stated: that, direct, cate para- consistent the Sua II When she testified on claimed digm, requirement memory questions under HRE a loss of Rule as to all relevant “subject pertaining 802.1 that the declai’ant to cross- events state- concerning examination matter ment: satisfy

the statement” -will confrontation Q. you Reginald Do know Fields? requirement clause well. A. Yes. jurisprudence Our has confirmed on evi- dentiary grounds, and constitutional Q. your you Can relationship describe

proposition that a witness who cannot recall with Mr. Fields? events related in my boyfriend. A. He’s is to that to extent not cross-exami- Q. you April living And on 13 were to- nation so as to “trier of allow the fact ... to gether? II, truth lies.” determine[ ] where the Sua (citations 92 Hawai'i at P.2d at 975 A. Yes. Clark, omitted); see also at Hawai'i Q. night April The 13th where were Eastman, 200; 926 P.2d at Hawai'i you? 65; Canady, 913 P.2d at recollect, actually. A I can’t majority’s 911 P.2d at 116. The reliance on Q. you evening Do Reg- recall an where Owens misplaced. majority thus is mis- gie got arrested? apprehends our II inappo- case law. Sua A. No. site. Owens was disavowed virtue of Ca- Eastman, nady, Carey and Clark. was Q. long you Reggie How have been used as confirmation of the result in Sua II together? that already had reached under been Ha- A. We’ve been for at friends least four In adopting waii’s version of Roberis. its years. position, has in effect overruled Q. you boyfriend/girlfriend? And are still sub silento Clark. Eastman and A. still We’re friends. Q. living you Are place still the same

XXIX. A. No. A proceeding review the transcribed Q you And don’t recall incident that necessary properly majority’s assess the April happened po- back in where the contrary “meaningful oppor- assertion that a lice came times? over two cross-examine,” tunity majority opinion remembering A. I have a hard time afforded case. Q. happened if something So had back in April, your memory would been have Regarding April the events today? than better back then Officer Ke testified that recounted necessarily. A. Not following: Q. you talking police Do recall to a Reggie got argu- She said she and into a offi- just April cer midnight on 13th Reggie upset. guess I ment. her before living? you at where were brought mom friends over some earlier evening police by. had and the to come A. No They they upset arguing. were so were Q. you police Do asking recall a officer laying And she said she was down on the you happened? what had TV, guess couch and I watching Reggie (No response.) A. audible up holding came behind and started her Q. you telling police Do recall a officer down, pressing her her neck with both of April you around on 13th 11:4.0 hands, like, holding her kind down your got boyfriend argu- into an then the couch. And she also said he ment? face, punched her in left side of her No, face. A. I don’t remember. might that a threat to Mr.

Q. you tellmg police And involve Do recall a O’ officer you lying Fields that if he left were you were chest down on going to break his surfboard? living your room? sofa occurred. I think that have No, A. I remember that. don’t <S Okay. you laying recall on his Do telling police Q. you recall Do officer <o way, guess maybe I board such Reggie you in behind came chair, was between the table and the push your down neck with started threatening on it and then to sit his hands? both of that—something like that? A. No. Yeah, I do remember that. i> Q. telling police you recall Do officer Okay. you perhaps Do recall Mr. your pain caused neck? that this <© your trying to hold Richards wrists Nope. A. him, keep you slapping from et cetera? Q. you telling police Do recall a officer youDo recall that at all? you could not breathe while he No, I don’t remember that. holding you was down? added.) foregoing it (Emphasis From the No, A. I don’t recall that. testimony Staggs’ a to mischaraeterization Q. you recall—telling police officer Do willingly informatively claim that “she Reggie punched you in the once responded virtually questions all of the your causing pain face face? Majority posed by counsel.” [Petitioner’s] response. A. No audible opinion at added). added.) cross-examination, (Emphases On memory

Staggs testimony, confirmed her lack of as to Nothing Staggs’ either on charged cross-examination, corresponds event. direct or testimony Staggs’ Officer Ke’s about accusa recall, Q. you Staggs, Do Ms. on this tory hearsay The actual record statement. night, April talk- particular 13th we’re majority controverts the assertion that “[t]he being present? ing, David Richards point protections guaranteed here is that the believe—yes, I A. I believe he was been Hawaii’s confrontation clause have Q. You David Richards is know who fully afforded to an accused where the hear then? say declarant attends trial and is cross-exam A. Yes. prior hearsay ined about statement.” Majority opinion, at 168 P.3d at 976. Q. Who is David Richards? demonstrates, Obviously, transcript A. A friend of mine. oppor equate trial attendance does not to an Q. yours. Okay. you And Friend of do tunity meaningful cross-examination be you night on recall whether were Staggs testify respect could not cause anything? drinking she had no remem statement which Yes, A. I was. Any “meaningful opportunity” to brance. you Q. drinking? What were necessarily Staggs in cross-examine would informative,” response, “willing clude a A. Beer. 523, 168 majority opinion at P.3d at as to Q. Okay. you drink? Did have lot to However, no statement. such A. Yes. testimony forthcoming because Q. perhaps why you Is that have no rec- memory. Staggs’ claimed loss of ollection? Therefore, ruling that the admission of Perhaps. A. Staggs’ hearsay statement did not violate you recall, Q. you—do you under—do Do clause, majority Hawaii’s confrontation any involving perhaps, incident Mr. strips any significance phrase from Fields’ surfboards—board? “meaningful to cross-examine.” memory every Staggs claimed loss as to A. Um-hmm. question regarding any phys- tunity develop circumstance of those theories cast Staggs’ ical altercation and Petition- doubt on earlier out-of-court state between herself ment, gravamen voluntarily er that of the constituted but declined to do so charge family terminating Majori abuse of a household the cross-examination.” 709-906(1) member, 523, 168 (Supp.2003),35 ty opinion § HRS P.3d at 975. and rendered cross-examination on the hear- relevance, Assuming, arguendo, their say meaningless, statement rather than majority proposes, theories the with all due meaningful. respect, gross speculation.36 rest at best any Officer Ke did not corroborate XXX. testify three matters. Officer Ke did not “given also maintains home, presence about Richards’ in the he did foregoing, oppor- do not think we Fields’ testify Staggs’ to the extent of intoxi- tunity for cross-examination was insufficient” cation, testify regarding and he did not because Staggs’ supposed threat to break Petitioner’s provided trier of fact was with ade- [t]he surfboard. None of these matters are incor- quate credibility information to test porated Staggs’ hearsay statement. veracity Staggs’ prior there no connection between tes- reasonably it could insofar as have inferred timony and Officer Ke’s rendition of the (1) Staggs’ drunken state rendered her hearsay statement. Before cross-examina- unreliable, prior statement inaccurate or already explicitly tion had claimed a (2) Staggs was not an innocent and/or memory loss of as to the on the events aggressive participant victim but an the (a evening April of 13 at ten times least who, Fields, angry gave incident while at a responses number of inaudible and were police. false to the statement transcript) were not recorded the on direct Majority opinion respect, at at 975- the 168 P.3d examination. with all due First, Staggs’ testimony “meaningful” employed by 76. as to what she term as is the majority recalled of in this context nonsensical. was not related to the substance becomes Staggs’ hearsay Staggs statement. dis during three cussed matters her cross-exami XXXI. First, believing

nation. recalled that she Second, noted, significantly, Richards was at her home on the and as before Second, evening April Staggs’ alleged of she statement admitted as 13. testified was “perhaps” impeach- that she had a lot to drink substantive evidence and not for which effect, memory. Finally, purposes. to her lack of she ment even if not rec- led acknowledged by majority, possibly involving ognized or the is remembered incident hearsay Placing threat to break Fields’ surfboard. that its decision means that state- emphasis points, majority are admissible as evidence on these three ments substantive certainly oppor if the declarant cannot be eross-exam- asserts that “Fields had the even statement, 709-906(1) Staggs’ provides, pertinent part § incident 35. ed that version of the HRS any person, singly rational, coherent, that shall be unlawful for “[i]t presented de was in a concert, physically family or in abuse a mem- Machado, tailed manner. See State v. 109 Ha section, 'family purposes ber. ... For the of this (2006) (con wai'i persons jointly or member’ means ... household admitting cluding that the trial court erred in formerly residing residing the same dwell- complainant's statement as related the officer ing unit.” exception under the excited utterance to the hearsay rule when the statement related was being characterizing Staggs In in a "drunk "detailed, coherent”). logical, and state,” Staggs majority en re overreaches. sponded "Yes” when asked whether or not she theory Additionally, majority’s as to the that had had a lot to drink and Officer Ke testified ag- "Staggs was not an innocent victim but an Staggs “appeared Offi to be intoxicated." who, gressive participant in the incident while Staggs' gave Ke no indication that drunken cer Fields, gave angry a false statement to question veracity him to of her ness led majority opinion police,” 168 P.3d at point any the witnesses statement. At no do any there was no indication from witness Staggs was in a "drunken state.” On the state hand, Staggs aggressor. the initial Ke who relat other because it was Officer ined about events in the statement. ^[31] M. Graham, Federal Practice and (inter-, § Procedure: Evidence at 764 regard, majority argues that the founda- ed.1992). im tional interests confrontation clause preserved “are where an accused is afforded Canady, n. (brackets cross-examine, omitted) opportunity there- 114 n. 10 add ed). Thus,

by challenge credibility veracity of, Staggs reason lacked memory, whether reason of a “drunken hearsay regarding prior declarant dr her state,” submits, as the or some oth Majority opinion out-of-court statement.” reason, finding er is irrelevant to of una (citations omitted).37 524, 168 P.3d at 976 and, thus, vailability question majority’s impeachment But the allusion to whether statement is admissible Staggs’ is irrelevant because the as substantive evidence. The effect of determination of whether the state- memory claimed lack of is that “the ment admissible as substantive evidence trier of fact” afforded the must be decided the statement itself before lies, despite to determine where the truth and, therefore, may placed in evidence her recollection of “other M. events.” Gra subjected impeachment. For fact ham, § supra, at 764. For that reason questions could answer about other the statement would not be admissible at matters did not make her available as to the Eastman, Canady, all.38 See and Clark. statement. Like HRE Rule view, point From another similar be- 804(a)(3), Graham, as noted Professor “[tjhere cause is no inherent contradiction 804(a)(3) provides FRE Rule that a wit- a recitation of an between event and a subse- memory ness who testifies to a lack of ..., quent memory potential failure matter of his or her state- impair [Staggs’] credibility wanting, ment is A unavailable. witness ei- only legitimate thrust of the ac- truly ther lack recollection or for a vari- independent proof count is as of the matters ety reasons, including concern of a Bowman, asserted.” A. Hawaii Rules of possible perjury prosecution, feign lack (2d. ed.1998). Thus, Evidence Manual 391 event, of recollection. In either the wit- using Staggs’ proof statement as of the mat- ness is unavailable to the extent that he squarely presents ters asserted hear- “[t]he or lack ..., she asserts recollection the say problem and [HRE 802.1 R]ule of of statement, subject prior matter the play.” into comes Id. “lack[ed] who of even present memory the witness recalls other events. of the events related in a if Wigmore, by majority, majori- puts majority’s cited to the see 38. This to rest the assertion that 524, 976, ty opinion Staggs' at memory permit- 168 P.3d at is not contra- "the fact of further loss dictory. by Wigmore, As set forth "The main prior ted the trier of fact to test the truth of her purpose and essential of Majority opinion confrontation is to se- out-of-court statement.” 523, at opponent opportunity Owens, cure the the (citing cross- 168 P.3d at 975 484 U.S. at for for opponent 559, ("It The examination. tion, demands confronta- 108 S.Ct. 838 is sufficient that the purpose gazing upon not for the idle of the bring defendant has the out such witness, him, being gazed upon by bias, or of but for matters as the witness’ [or her] his lack of cross-examination, purpose the attentiveness, of which cannot eyesight, poor care and [or her] except by personal putting be had the direct (what and prime objective and even cross-examination, is often a of questions obtaining and immediate answers." 5 Wigmore, 3A J. Evidence 1395, (Chad- Wigmore, § J. on Evidence at 150 995, (J. 1970)) pp. § 931-32 Chadbourn rev. the 1974) (some emphasis original bourn rev. in very memory.”). fact that he [or she] has a bad added). Wigmore recognizes some a also sec- 523, Majority opinion at 168 P.3d at 975. ondary, dispensable, purpose albeit of confronta- inquiries speak impeaching These all the states, is, Wigmore tion. however, Id. at 153. "There credibility presupposes of a witness and the ad- secondary advantage to be obtained missibility witness; the statement. The instant case personal appearance the question involves of whether Petitioner judge jury and the are enabled to obtain the “meaningfully able to ant, cross-examine” the declar- elusive and incommunicable evidence aof wit- question deportment testifying, ness' which must be resolved before while and a certain Owens, course, subjective produced upon the statement moral effect is the wit- is admitted. has jurisdiction. ness.” Id. Both are in factors satisfied been disavowed See discus- positions supra of this dissent. sion and infra.

563 prior ‘subject before, statement is not to cross-exam- As stated Owens is inimical to the concerning given ination matter’ of the broad construction the Hawai'i Consti- statement,” required by prior HRE Rule 802.1. in tution’s confrontation clause deci- Therefore, II, (citing Canady, supra). “the sions of this court. See Sua 92 Hawai'i at 8, substantively (“Although statement cannot be admitted n. n. 73 8 (citation omitted) (em- Roberts, 66, 2531, under rule.” Id. 448 U.S. at S.Ct. 100 65 added). Furthermore, 597, phasis suggests there is not L.Ed.2d that the of a existence “any impeachment ‘firmly hearsay exception’ room under rooted alone suf- [HRE 613(b) Rjule satisfy ‘adequate the absence of contradiction.” ficient to indicia of relia- Therefore, test, contrary major- bility’ Id. at 392. not this court will hesitate to assertion, ity’s credibility veracity” protections “the extend the Hawai'i Consti- Staggs’ prior beyond (Citing statement cannot be tested. tution federal standards.” 524, Richie, Majority opinion 42, 1250; at 168 P.3d at 976. As 88 at at Hawai'i 960 P.2d clear, abundantly 3, Quitog, made cannot n. witness who State v. 938 testify (1997); Arceo, being as to the matter she is P.2d 561 n. 3 State v. about, (1996); questioned must be considered “un- Hawai'i State 446, 453-54, Lessary, available” a confrontation sense. 75 Haw. (1994); Aplaca, n. 74 Haw. It also observed that HRE 802.1 2.)). plainly 837 P.2d at 1305 n. Owens does requires prerequisite aas to admissibili- support jurisdiction’s “this version of ty, prior “given statement must be under analysis[,]” majority opinion Roberts oath” writing signed or “reduced to or explicated 168 P.3d at which in Sua adopted approved by otherwise the declar- II. substantially ant” or “recorded verbatim mechanical, by stenographic, fashion electri- Clark, As to Eastman and cal; contemporaneously or other means “[bjecause maintains that the witness is sub- making statement.” HRE cross-examination, ject to the substantive use 802.1(1)(A)-(C). The rationale that bars ad- of his inconsistent statement [or her] missibility when the witness is unable to infringe does not amendment con- sixth testify about the events state- rights frontation of accused in criminal ment, Clark, Eastman, Canady, see su- Majority opinion cases.” pra, compelling is even more here. Clark, (quoting statement bears even less indicia of reliabili- added). 199) However, P.2d at as, ty recalling inasmuch in addition to not foregoing misleading. quotation said, to, Staggs what was never swore quote commentary to from Clark is from the signed, adopted hearsay or the statement 802.1, requires HRE which not that to allegedly made. be admissible a statement must bear certain reliability by way by

indicia of of affirmation (i.e., oath, recorded, under declarant XXXII. writing), into the additional as- reduced but “[tjhis “subject majority concept not a the declarant be The claims is surance one[,]” concerning and maintains that “even under cross-examination novel Clark, jurisdiction’s this version of the Robert’s matter statement.” Hawai'i analysis, (citing cross-examination of the at 926 P.2d at 199 to the Com- sufficient 802.1) (citation mentary omit- hearsay declarant at trial terminated the in- to HRE Rule ted) added). quiry.” Majority opinion (emphasis at at added). oath, given writing, (emphasis This statement does was not under reduced advance, merely any in could but assumes the matter or recorded fashion (or issue, subjected to cross examination re- in for what is a “sufficient” rather a not be meaningful) opportunity garding “subject examina- matter of the state- for cross memory ment” she had no question posed tion is the this case. The because Clark, Eastman, Eastman nor majority refers to and Ow- statement. neither majority’s support proposition. for this Clark validates the assertion ens as “sufficient” for cross-examina- forded the Hawai'i as rec- [Constitution present ognized by Majority tion existed case. this court Sua [II].” n.14,

opinion at 527-28 168 P.3d at 979-80 XXXIII. added). n.14, (emphasis despite For the wit- memory, majority de- ness’s absence result, a and for the reasons discussed As meaningful opportuni- cides there was before, majority wrong declaring is ty to cross-examine this case. protections guaranteed “that the Hawaii’s fully confrontation clause have been afforded ... where the declarant attends trial XXXIV. Majority opinion and is cross-examined[.]” attempt In an to deflect the effect of its at 168 P.3d at 976. This view contra- ruling, majority contends that dissent venes the rationale reaffirmed in our case “attempts] conjure disparity[,]” majority law, supra, as observed that where the de- opinion at 168 P.3d at and “the memory, “credibility clarant lacks appropriate principle gleaned Craw- [from veracity regarding declarant of[ ] analysis is that the confrontation clause ] ford statement!,]” prior his or her out-of-court apply does not to exclude a out-of-court majority opinion at P.3d at statement where a declarant at is by way cannot be tested of cross-examina- it[,]’ explain trial to ‘defend or not that a tion. presence declarant’s at trial man- assertion, then, The that “foundational in- dates the conclusion that the declarant is id., by way preserved!,]” terests are of im- (i.e. constitutionally ‘available’ not ‘unavail- peachment supra is erroneous as stated be- able’)[,]” majority opinion at 168 P.3d at when cause substantive use of the statement added). stake, determination as to admissibili- First, “conjure dispari- there is no need to ty precede any impeachment proce- would ty” an actual because there is conflict be- majority’s following dure. The claim that majority applies tween how the availabili- paradigm unavailability II the Sua in testi- ty requirement and this court’s confrontation “expandfs] protections monial situations before, jurisprudence. pur- clause As stated “beyond purpose,” of’ the clause its id. Crawford, a suant to declarant is “unavail- n.9, n.9, simply untrue purposes only able” for confrontation clause doing merely ap-

because so adheres to the if he or she never takes stand. jurisdic- proach heretofore followed in our point by repeated reiterates hand, majority’s tion. On the other references to footnote nine and adoption approach significantly of the federal Craivford’s jurisdictions. summations of from other cases protections presently diminishes the afforded See, Gomez, e.g., (stating 183 S.W.3d at 91 in our state constitution and invites inconsis- fact that Perez “[t]he testified ivas avail- unjust consequences tent and from the un- Appellant able cross examine her application McGriff, even of the law. See inapplicable (empha- makes here” 790; I, Hawai'i Sua added)). sis 987 P.2d at 990. Second, Despite protestation contrary, majority its to the statements holding that a statement is admissi- seems to attribute dissent were never memory if posited. ble even the declarant has no It position is not the dissent’s presence statement or the events described “a at trial man- declarant’s statement, directly majority contradicts dates the conclusion that the declarant is holding inherently constitutionally available,” II. majority opinion Sua Such a is incon- 979; rather, majority’s with the claim that it sistent ad- it “ ‘unavailability’ analysis paradigm majority’s heres to the em- own leads to the jurisdiction’s majority bedded within this version of Staggs conclusion that viewed analysis ... purposes must be as available for the of confrontation. [that] Crawford interpreted majority Staggs’ to include witness’ lack Because the finds that hear- memory, pursuant greater protection say af- statement is admissible and that a Craiv- analysis unnecessary, it comport must follow case law in an effort to its result ford majority that the Staggs has concluded jurisdiction’s precedent with this but instead purposes “available” for the confrontation aligns our confrontation clause with the clause under footnote nine. It majori- is the protective less federal standard. The ramifi- ty’s approach own that mandates that a hear- approach cations of this bodes ill for the say appears declarant who on the stand and vitality of guarantee the confrontation clause memory denies subject of the relevant mat- prior and our insistence that the ter, is considered “available” for confronta- cross-examine witness on the purposes. tion matter of his or her statement be meaningful. majority appears agree also this dissent it when states that “the ‘unavail- ability’ paradigm juris- embedded within this XXXVI. diction’s analysis version of the Crawford In line foregoing, with the I would reverse interpreted must be to include a wit- May published ICA’s opinion memory,

ness’ lack of pursuant to great- and the court’s October judgment. protection er afforded the Hawaii Consti- recognized by tution as this court in Sua ACOBA, Concurrence and dissent J. Majority 527-28, n.14, opinion [II].” But, Having P.3d at n.14. having published dissented to opinion, concluded that a witness grant is unavailable when he I would or she reconsideration on the basis of trial, memory claims loss of majority my herein, dissent and the Order of Amend- and, mystifyingly contradicts itself although ment filed even date herewith. In that such, it to acknowledge refuses regard, decides I May would reverse the instead that was available for published opinion con- of the Intermediate Court purposes frontation despite her claimed loss Appeals, and reverse the October memory as to the matters in the judgment family court of the fifth statement. circuit.

XXXV. I reiterate that we need not reach the issue because admission of alleged hearsay statement plain constituted error. respect, With all due language

contorts the and substance of our

Case Details

Case Name: State v. Fields

Court Name: Hawaii Supreme Court

Date Published: Oct 10, 2007

Citation: 168 P.3d 955

Docket Number: 25455

Court Abbreviation: Haw.