Lead Opinion
Petitioner/Defendant-Appellant Kevin Pond (“Pond”) seeks review of the Intermediate Court of Appeals’ (“ICA’s”) October 30, 2007 judgment on appeal, issued pursuant to its October 11, 2007 opinion,
Pond asserts that the ICA gravely erred by concluding that the Hawai'i Rules of Evidence (“HRE”) Rule 404(b)
Because the circuit court precluded Pond from cross-examining the complaining witness about whether she used marijuana on December 12, 2005 to show that her perception was inaccurate, it committed reversible error. Accordingly, we vacate Pond’s conviction of abuse of family or household member and Interference offense, and remand for a new trial consistent with this opinion.
I. BACKGROUND
A. Factual Background
The complaining witness, Miae Russell (“Ms. Russell”), met Pond in the summer of 2005, began dating him, and moved into Pond’s house in October 2005. Pond,
1. Ms. Russell’s account of December 12, 2005
The ICA’s published opinion set forth Ms. Russell’s account that Pond physically abused her on December 12, 2005, as follows:
On the evening of December 12, 2005, [Ms. Russell] was alone in Pond’s residence. At about 5:30 p.m., she had spoken by telephone with Pond, who was then at the Outback Steakhouse.
When Pond arrived home at around 10:30 p.m., she was already asleep. She woke up when she heard noises from the sliding glass door in the living room, which she had locked. [Ms. Russell] testified that she got up and walked to the living room to see who was outside and Pond “walked in through the bedroom screen door.” She then got back in bed and Pond“was jumping on [her] and climbing on [her], and was kind of like-he was drunk.” [Ms. Russell] testified that she knew Pond was drunk because “[h]e smelled really bad” and “when [she] spoke to him at five-thirty he also told [her] he was drinking.”
[Ms. Russell] testified that after she told Pond to get off her, he responded by jumping on her more. Pond “was piling the blankets on top of [her], and [she] was trying to kick them off. And then [Pond] went into the bathroom, and [Ms. Russell] was trying to fix the blankets.” [Ms. Russell] then “asked [Pond] what that smell was.” In response, Pond “came walking towards [her] and then he slammed [her] face into the bed” with one arm and “had his knee or something behind ... [her] arm,” so that her arm and face were in a “weird position” and she “was just buried into the bed and [she] couldn’t move.” [Ms. Russell] testified that she “hurt a lot,” “could not breathe[,]” and thought her jaw and arm were going to break. She also explained that while Pond was holding her down, he told her that “the reason why [she] was being punished was because [she] didn’t know how to be obedient. And that’s the last thing that he wanted to do, was to hurt [her], but that [she] needed to learn how to respect him.” [Ms. Russell] related that “[e]ventually, [Pond] let go[,]” and after he got off of her, he was “just ranting.” She was crying, still on her knees on her bed, and “screaming for help.”
Pond approached her again, “grabbed the back of [her] head[,]” told her “to shut up, and he bit down on [Ms. Russell’s] mouth and ... punctured the bottom part of [Ms. Russell’s] mouth” so hard that it “went all the way through. And the other side, it was just very swollen and hard .... and there was blood.” She received a scar from Pond’s bite.
Pond,
[Ms. Russell] was then asked how she got loose after Pond bit her. She responded, “I think he just let go, and I got up and I was reaching for my purse and phone, and I tried to call the police.” Thereafter, [Ms. Russell] testified as follows: [Pond] came over and grabbed the phone from me and knocked it out of my hand, because we were fighting for it, and everything got knocked on to the floor, the phone came apart, the battery came out. And by that time I was on my hands and knees on the floor and trying to pick everything up. And I—my stuff was right to the left of me, and I was also grabbing my things so that I could just get my things and leave.
According to [Ms. Russell], she told Pond she was calling the police and dialed 911 on her phone. She wasn’t sure if she pushed the enter button, “but [she] think[s she] did, because when [she] went to the police station, [she] looked at the phone [and] it was on there.” She further testified that as she was gathering her things and crying, Pond “said that he would help [her] carry it out or something. He was telling [her] to be quiet and shut up the whole time.” Pond then “took [her] arm and put it behind her, and shoved [her] face into the closet door, and sort of pushed [her] along the door[,]” causing her face and mouth to bleed.
[Ms. Russell] expressed that she felt scared and she hurt “[everywhere.” She also had bruises, welts, cuts, and fingernail marks, some of which lasted “at least a week” and “were still visible like ten days later.” Her “hair was [also] falling out.” [Ms. Russell] related that she then gathered some of her things, left the apartment, and drove to the Maui police station in Láhainá.
.... [Ms. Russell] also related that after the incident, she discontinued living with Pond and stopped dating him.
.... [Ms. Russell] testified that she informed Maui Police Department (MPD) Officer Jonathan Kaneshiro (Officer Kane-shiro) that she had told Pond she was calling 911.[When Ms. Russell] was then presented with the statement written by Officer Kaneshiro to “refresh [her] memory[,]” [t]he statement did not mention [her] claim that she had told Pond she was calling 911.
2. Pond’s testimony
Pond testified that on December 12, 2005, after running some errands, he had dinner with a female friend at Outback Steakhouse. He arrived home between ten to ten-thirty p.m., and he entered through the bedroom door because his normal office room entrance was locked. He saw Ms. Russell in the office room, smelled marijuana, and observed a half full bottle of vodka. He assumed that Ms. Russell bought the alcohol earlier that day and drank half the bottle because they do not normally keep alcohol in the house and she was the only person home.
Pond testified that when he walked into the office, he and Ms. Russell smirked at each other, “kissed for a few seconds,” and then Ms. Russell bit on his upper left lip, which resulted in a permanent scar. In response, Pond “bit down on her to release-to have her release.”
Pond testified that Ms. Russell attacked him, and he defended himself:
A. At that point, [Ms. Russell] backed up, she said, “Where the F’ have you been? Who have you been with?” And at that point, on the second phrase that she said that, she punched me in the face.
Q. And what do you mean punch you in the face? Where is this?
A. Well, the first punch was on my left side—the first punch, as she was punching me, she says, “Where were you?” And then I said, I told her, “You know that I was out,” and it was none of her business at this point. She punched me and continued, you know, raising her voice, starting to scream, “Where the F’ have you been?” Punched me again. And I told her, “Stop it, you can’t punch me, you’re—I don’t think because you’re a woman you can sit here and beat me because I’m bigger than you—you can beat me.”
Q. Were you trying to—
A. Not at that point, I verbally told her to stop at that point. She did it again, and then—as she started to do it, I started to defend, and try to protect myself from those punches.
Q. Can you demonstrate for the jury how you’re defending yourself?
A. Well, she’s swinging and I’m trying to block and throwing her arms off like this for the first few. She kept swinging and she kept swinging, and I kept trying to block them. And I blocked a lot of them and a lot of them. I blocked myself. I mean they were just coming—she was frantic and hysterical.
So at that point, I grabbed her—tried to grab and take her arm so she couldn’t continue swinging at me and hitting me in the face.
A. ... I pushed her back, and she came back towards me again. And then at that point, I took her and I pushed her back even further.
A. ... And as I pushed her, she went falling into, you know, into the corner of the bed.
A. She fell backwards. I pushed her off of me, she was facing me, and she went backwards with her back into the bed.
According to Pond, after [Ms. Russell] hit the bed, she sat on the bed, sobbed for a few seconds, “jumped back up,” ran around the office room and threw a candle. Thereafter, when Ms. Russell was making a phone call, he took the phone and “dropped it on the bed”:
[S]he ’picked up her telephone, and was making a phone call. I didn’t know what the phone call was. We had argued before, and she had made a phone call, and it was to a friend to go over an stay with her friend.
And I took the phone, and I was—you know, we were rummaging to grab the phone. I took the phone and just dropped it on the bed. I said, “You know what, you just need to get all your stuff, and youneed to get out of here. Let’s just get your things and let’s just end this.”
Pond testified that “as [Ms. Russell] was picking up and gathering herself, her stuff, she was kind of throwing her things around,” and theorized that during this time, she may have thrown her phone and broken it.
Ms. Russell then went into the bathroom and stalled to cry. Pond joined her in the bathroom to try to clean her lip. Id. “And then at that point, it was just land of—it was obvious that she wanted to leave.” Pond testified that he did not prevent her from leaving and that Ms. Russell did not tell him that she was going to the hospital or the police.
3. Other accounts produced at trial
Officer Jonathan Kaneshiro (“Officer Kaneshiro”) testified that he was working in the Láhainá district on the night of December 12, 2005 at approximately 11:30 p.m. when Ms. Russell arrived at the police station. Ms. Russell had a difficult time relating to him what had occurred because she “was still crying and she would break down from time to time.”
After officers arrested Pond at his home, he was transported to the police station to be processed.
Officer Kaneshiro testified that he did not notice any injuries on Pond’s body when the officers first arrived at Pond’s residence.... Officer Kaneshiro acknowledged that it was possible that Pond could have bitten his tongue or lips when he was on the ground lying face down. Officer Kaneshiro recalled that he had asked Pond at the police station whether Pond had any injuries and Pond responded that he had none. Pond also denied “having any land of physical altercation with [Ms. Russell]” or that he “picked up [Ms. Russell’s] phone and threw it.”
Pond,
Quetzal Chacon, Pond’s brother, testified that he picked Pond up on the street on December 13, 2005, and that he took a picture of Pond’s lip because Pond told him that he wanted evidence that Ms. Russell bit him. He further stated that the picture admitted into evidence fairly and accurately depicted Pond’s lip on December 13, 2005.
B. Procedural History
1. Pond’s motion for HRE Rule k0U(b) evidence and contimtance denied
On February 27, 2006, minutes before Pond’s jury trial was scheduled to begin, Pond orally moved for a continuance of trial in order to submit HRE Rule 404(b) evidence that Ms. Russell previously assaulted Pond. Pond’s counsel explained that he only pinpointed the date of the alleged attack that morning and could not have earlier filed a notice of intent to introduce such evidence. He also argued that the evidence “goes to the heart of our self-defense.”
The prosecution argued that defense counsel had the opportunity to present his defense “weeks ago” and that “he’s supposed to provide discovery way before trial and not ask for continuance.” Although the circuit court acknowledged that HRE Rule 404(b) allows notice of the intent to introduce evidence of bad acts to be given during trial, it ruled against Pond’s motion for a continuance and observed, “I got more than sixty jurors outside. This is the only trial left.” The circuit court also denied the HRE Rule 404(b) motion “for failure to provide notice,” opining that “[i]f [the evidence] goes to the
During direct examination, Pond described an argument he had with Ms. Russell “a couple weeks prior” to December 12, 2005. Pond explained that when he came home from work, he saw Ms. Russell lounging on his bed with her dog, even though he had previously told her that he was allergic to pets and that she could not bring any animals into his house. Pond testified as to the final outcome of the argument:
I asked her to take the dog off the bed and she just continued to try and argue with me about the dog. So I walked over to pick up the dog and take it off the bed, and as I walked over to move it, the dog ran and jumped off and went over—went to another part of the house. And she came over to me and started swearing at me because, you know, of my stance on it, and you know, proceeded to smack me.
(Emphasis added.) The prosecution objected and the court reminded Pond’s counsel of its HRE Rule 404(b) ruling and ordered the jury to disregard Pond’s last response.
2. Evidence that Ms. Russell was smoking marijuana on December 12, 2005
During Ms. Russell’s cross-examination, defense counsel asked whether she was smoking marijuana when Pond came home on December 12, 2005. The prosecution objected and the parties approached the bench. Pond’s counsel argued that this evidence is “impeachable” and “goes to her credibility.” However, the court ruled “[ijt’s a prior bad act” because the question asks whether “she committed a crime that evening before he came home,” and thus, required that Pond’s counsel give the prosecution HRE Rule 404(b) reasonable notice. The court thereafter struck the last question and ordered the jury to disregard it.
3. Jury instructions
After the close of evidence, the circuit court instructed the jury, inter alia, as to when a person acts with intentional (instruction 18), knowing (instruction 19), and reckless (instruction 20) states of mind. Then, it instructed the jury regarding the Interference offense:
Instruction 21. In Count II of the complaint, the Defendant, Kevin Pond, is charged with the offense of interference with reporting an emergency or crime. A person commits the offense of interference with reporting [sic] of an emergency or crime if that person intentionally or knowingly prevents a victim or witness to a criminal act from calling a 911-emergency telephone system, obtaining medical assistance, or making a report to a law enforcement officer. There are two material elements of the offense of interference with reporting an emergency or crime, each of which the [p]rosecution must prove beyond a reasonable doubt.
These elements, these two elements are that on or about December 12, 2005 in the County of Maui, State of Hawai'i, the Defendant, Kevin Pond intentionally or knowingly engaged in conduct; and that said conduct resulted in preventing a victim or witness to a criminal act from calling a 911-emergency telephone system, obtaining medical assistance, or making a report to a law enforcement officer. The intentional or knowingly [sic] state of mind applies to each element of the offense.
The circuit court also provided the following self-defense jury instruction:
The use of force upon or towards another person is justified when a person reasonably believes that such force is immediately necessary to protect himself on the present occasion against the use of unlawful force by the other person. A person employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating. If, and only if, you find that the [d]efendant was reckless in having a belief that he was justified in using self-protective force against another person, or that the [defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use offorce against the other person, then the use of such protective force is unavailable as a defense to the offense of abuse of family or household member.
4. Pond appealed his conviction
On March 1, 2006, the jury found Pond guilty of his charged offenses, and the circuit court filed a judgment convicting Pond on March 2, 2006. Pond filed a notice of appeal on March 28, 2006.
On October 11, 2007, the ICA affirmed the circuit court’s judgment in a published opinion and filed a judgment on appeal on October 30, 2007. The ICA held that the circuit court did not abuse its discretion by precluding evidence that Ms. Russell allegedly struck Pond on a prior occasion and that Ms. Russell had smoked marijuana on December 12, 2005 because “the notice requirement is a condition precedent to the admissibility of HRE Rule 404(b) evidence.” Pond,
II. STANDARDS OF REVIEW
A. Certiorari
This court considers whether the ICA’s decision reflects “(1) [gjrave errors of law or of faet[ ] or (2) [ojbvious inconsistencies ... with [decisions] of th[is] court, federal decisions, or [the ICA’s] own decision^]” and whether “the magnitude of those errors or inconsistencies dictates] the need for further appeal.” HRS § 602-59 (Supp.2007).
B. Admissibility of Bad Act Evidence
The admissibility of evidence requires different standards of review depending on the particular rule of evidence at issue. When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. [T]he
traditional abuse of discretion, standard should be applied in the case of those rules of evidence that require a “judgment call” on the part of the trial court.
State v. St. Clair,
Under HRE Rule 404(b), the proponent of “bad act” evidence “shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.” HRE Rule 404(b). Because the trial court’s determination of reasonable notice involves making a “judgment call,” the admission of this evidence is reviewed for abuse of discretion. See State v. Richie,
An abuse of discretion occurs when the court “clearly exceeds the bounds of reason or disregards rules or principles of law to the substantial detriment of a party litigant.” St. Clair,
C. Cross-Examination
Violation of the constitutional right to confront adverse witnesses is subject to the harmless beyond a reasonable doubt standard. In applying the harmless beyond a reasonable doubt standard the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.
State v. Balisbisana,
D. Jury Instructions
When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneousinstructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. [However, ejrror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.
.... [OJnce instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.
State v. Nichols,
HI. DISCUSSION
A. The ICA Did Not Gravely Err By Concluding That (1) “The Notice Requirement Is A Condition Precedent To The Admissibility Of HRE Rule 404(b) Evidence” And (2) The Circuit Court Did Not Abuse Its Discretion By Precluding Pond’s HRE Rule 404(b) Evidence That Ms. Russell Struck Him Two Weeks Prior To The Incident.
Pond argues that the ICA gravely erred by concluding that under HRE Rule 404(b), he was required to' give the prosecution reasonable notice prior to introducing HRE Rule 404(b) evidence because it violates his constitutional right to present a defense and examine witnesses. Pond contends that the purpose of the notice requirement does not “ ‘trump’ [his] constitutional rights, particularly where ... there was no prejudice to the prosecution.” Specifically, he asserts that he should have been permitted to introduce evidence that Ms. Russell attacked him two weeks prior to December 12, 2005. We disagree.
1. HRE Rule W(b)’s notice requirement is not unconstitutional.
HRE Rule 404(b) was amended in 1994 to provide in pertinent part,
In criminal cases, the proponent [offering] evidence [of other crimes, wrongs, or acts] shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.
(Emphasis added.) Legislative history of HRE Rule 404(b) provides that the notice requirement “was modeled after a change recently made to the FRE.” Hse. Stand. Comm. Rep. No. 567-94, in 1994 House Journal, at 1088.
The Advisory Committee Note to the 1991 Amendments to FRE Rule 404(b), the federal counterpart to HRE Rule 404(b), explains that the notice requirement “is intended to reduce surprise and promote early resolution on the issue of admissibility.”
As the ICA pointed out in Pond, HRE Rule 404(b)’s notice requirement differs from
“The sixth amendment to the United States Constitution and article I, section 14 of the Hawaii Constitution guarantee a criminal defendant’s right to confront adverse witnesses.... ‘[C]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” State v. Sabog,
At the same time, the United States Supreme Court has ruled that “[t]he right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Rock,
Thus, “[i]n applying its evidentiary rules a [s]tate must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.” Rock,
The Supreme Court applied the “legitimate interest” rule in Lucas.
The Supreme Court recognized that the rape shield statute implicates the sixth amendment and that, “[t]o the extent that it operates to prevent a criminal defendant from presenting relevant evidence, the defendant’s ability to confront adverse witnesses and present a defense is diminished. This does not necessarily render the statute unconstitutional.” Id. at 149,
Pursuant to this rule, the Supreme Court recognized the state’s interest in the policy underlying the rape shield statute’s procedural prerequisites—to protect rape victims from surprise, harassment, and invasions of privacy, and permit the prosecution to investigate the evidence. Id. at 149-50,
The [Supreme] Court observed that the notice requirement ‘by itself in no way affected [the defendant’s] crucial decision to call alibi witnesses.... At most, the rule only compelled [the defendant] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that [he] planned to divulge at trial.’ [Williams,399 U.S. at 85 ,90 S.Ct. 1893 .] Accelerating the disclosure of this evidence did not violate the Constitution, the [Supreme] Court explained, because a criminal trial is not ‘a poker game in which players enjoy an absolute right always toconceal their cards until played.’ [Id. at 82, 90 S.Ct. 1893 .]
Id. at 149,
In determining whether HRE Rule 404(b)’s notice requirement is also not per se unconstitutional, we next consider the policy governing the rale’s notice requirement. As stated above, the Lucas court described sound reasons for requiring pre-trial notice. See Lucas,
Moreover, HRE Rule 404(b) is not unconstitutional merely because it implicates a defendant’s constitutional right to confront witnesses and its federal counterpart does not. As the Advisory Committee’s Note to FRE Rule 404(b) observed, the notice requirement is “in the mainstream with notice and disclosure provisions in other rules of evidence,” such as FRE Rules 412 (written motion of intent to offer evidence under rule), 609 (written notice of intent to offer conviction older than 10 years), 803(24) and 804(b)(5) (notice of intent to rely on residual hearsay exceptions). Advisory Committee’s Note to FRE Rule 404(b). These federal rules of evidence, by their plain language, apply equally to the prosecution and the defense. Like these rules and other Hawai'i rules of evidence,
The Dissent compares the HRE Rule 404(b) notice requirement to statutory privileges that “preclude the admission at trial of certain classes of confidential communications” and that may “interfere[ ] with a defendant’s constitutional right to cross-examine.” State v. Peseti,
In Peseti, this court considered whether the statutory victim-counselor privilege violated defendant Peseti’s constitutional right to confront adverse witnesses as guaranteed by the sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution.
The Dissent contends that defendants should be permitted to bring forth HRE Rule 404(b) evidence if they satisfy the statutory privilege test laid out in Peseti because it “‘operate[s] to preclude the admission at trial of certain’ information,”
Although the Dissent indicates that it is not claiming that a “rule that impinges on a defendant’s constitutional right ... is unconstitutional per se,” see Dissent at 482,
As explained above, HRE Rule 404(b), like many discovery rales, is designed to reduce surprise during the criminal trial and maintain fairness for both parties. Similar to the notice of alibi rule, the HRE Rule 404(b) notice requirement “ ‘[a]t most, ... only
Having concluded that HRE Rule 404(b) is not per se unconstitutional, we next consider whether the circuit court abused its discretion by excluding Pond’s HRE Rule 404(b) evidence in the present case. See Wood v. Alaska,
2. The circuit comi did not abuse its discretion by prechiding evidence that Ms. Russell previously “smacked” Pond under HRE Rule Jf0b(b).
As discussed above, Pond attempted to introduce “HRE Rule 404(b) evidence” on the first day of trial by arguing that it is “highly relevant to the issue of ‘first aggressor,’ ” but the circuit court ruled that Pond gave unreasonable notice of this evidence. The circuit court excluded this HRE Rule 404(b) evidence, opining, “If it goes to the heart of the defense, then it should have been something given more prominence earlier. I can’t believe that it’s that much to the heart of it based on the way it’s dribbling in.”
As the Dissent points out, Pond’s proffered evidence may implicate HRE Rule 404(a)(2). See Dissent at 477,
The record indicates that the circuit court did not abuse its discretion by denying Pond’s request to introduce Ms. Russell’s prior acts under HRE Rule 404(b). On the first day of trial, defense counsel explained to the court that he was previously aware of the “[HRE Rule] 404(b) event,” but did not give the prosecution notice because he “wasn’t able to pinpoint the day until [that] morning.” This argument was disingenuous at best. When Pond’s counsel attempted to introduce the alleged HRE Rule 404(b) evidence at trial, both Pond and his counsel merely approximated the date of the event. On direct examination, the following colloquy took place between Pond and his counsel:
Q. The reason you’re here today is because of the event that happened on late December 12, do you remember an incident that happened about a week and a half prior?
A. Ido.
A.[T]hat day, a couple weeks prior to what, the 12th, she had—I had come home from work and she had the dog and it was laying up on my bed, and just lounging on the bed.
(Emphases added.) Pond’s argument for excusing pretrial notice is inconsistent with his testimony, which clearly did not “pinpoint” the date of the prior incidents. Accordingly, Pond did not establish good cause for delaying the notification of the HRE Rule 404(b) evidence until the day of trial.
We further note that defense counsel could have given the prosecution general notice prior to trial to eliminate undue surprise and allow the prosecution the opportunity to prepare for this matter. See Pond,
B. The Circuit Court Committed Reversible Error By Precluding Pond From Cross-Examining Ms. Russell About Whether She Smoked Marijuana on December 12, 2005.
Pond next argues that the ICA gravely erred by concluding that he was required to provide reasonable notice of his intent to cross-examine Ms. Russell about using marijuana on December 12, 2005 to attack her perception and recollection. It is well recognized that a defendant may cross-examine the witness “as to her drug use and addiction at or near the time of the incident to the extent that it affected her perception or recollection of the alleged event.”
The application of HRE Rule 404(b) is limited to other crimes, wrongs, or acts “[that] is probative of another fact that is of consequence to the determination of the action.” HRE Rule 404(b). United States v. Tomblin,
Here, contrary to the conclusion of the ICA and the ruling of the circuit court, Pond was not required to provide the prosecution HRE Rule 404(b) “reasonable notice” prior to cross-examining Ms. Russell about whether she used marijuana on December 12, 2005 because he intended to show the jury that her perception and testimony about the incident were not credible. See United States v. Baskes,
The circuit court committed reversible error in limiting the cross-examination of Ms. Russell as to her marijuana use.
In convicting Pond of the two offenses, the jury found Ms. Russell credible and believed Ms. Russell’s testimony about December 12, 2005 over Pond’s testimony. There was a reasonable possibility that the errors complained of contributed to Pond’s conviction. Therefore, we conclude that the circuit court’s error was not harmless beyond a reasonable doubt, and we vacate Pond’s convictions.
C. The ICA Did Not Gravely Err By Concluding That The Circuit Court Properly Instructed the Jury On Self-Defense Inasmuch As It Adequately Tracked the Self-Protection Defense Statute.
Next, Pond contends that the ICA gravely erred by concluding that the circuit court did
Under HRS § 703-304(3) (1993 & Supp.2006), the statute regarding the use of force in self-protection as a defense, “a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be ivhen the force is used without retreating, surrendering, possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.” (Emphasis added.) See State v. Pemberton,
The self-defense jury instruction provided: The use of force upon or towards another person is justified when a person reasonably believes that such force is immediately necessary to protect himself on the present occasion against the use of unlawful force by the other person. A person employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating. If, and only if, you find that the [defendant was reckless in having a belief that he was justified in using self-protective force against another person, or that the [defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of force against the other person, then the use of such protective force is unavailable as a defense to the offense of abuse of family or household member.
This instruction sufficiently tracks HRS § 703-304(3) inasmuch as it informs the jury that the reasonableness of Pond’s belief must be viewed from his perspective. Because the jury must consider whether the defendant’s belief was reasonable “under the circumstances as he reasonably believes them to be,” it necessarily evaluates the situation from the defendant’s perspective. Therefore, the ICA properly determined that the circuit court’s jury instruction was consistent with the language of the self-protection defense statute.
D. We Clarify that There Are Two Attendant Circumstances: (1) Ms. Russell Was a Victim of a Crime and (2) The Call Was Made to 911-Emergency Telephone System.
Finally, Pond argues that the ICA gravely erred by ruling that the circuit court erred by combining the elements of the Interference offense but ruling that this error was harmless. The ICA, in agreement with the prosecution and Pond, ruled that the jury’s instructions as to the Interference offense consisted of two elements, results of conduct and attendant circumstances. Pond,
Under HRS §§ 702-204 and 702-205 (1993), “[A] person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense, (1) conduct, (2) attendant circumstances, and (3) results of conduct.” In State v. Aiwohi,
In the instant case, Pond is guilty of the Interference offense if he “intentionally or knowingly prevents a victim or witness to a criminal act from calling a 911-emergency telephone system, obtaining medical assistance, or making a report to a law enforcement officer.” HRS § 709-906. Applying this court’s definition of attendant circumstances, the conduct is any voluntary act or omission, the result is preventing Ms. Russell from making a telephone call, and the attendant circumstances are that (1) Ms. Russell was a victim of a crime and (2) the call was to 911-emergeney. As previously quoted, and worth repeating here, the jury instruction on the Interference offense mistakenly stated in pertinent part that the intentional or knowing state of mind is required for too elements: (1) that Pond “engaged in conduct” and (2) “that said conduct resulted in preventing a victim or witness to a criminal act from calling a 911-emergeney telephone system, obtaining medical assistance, or making a report to a law enforcement officer.”
Thus, on remand, the elements of “results-of-conduct” (that Pond successfully prevented Ms. Russell from making a telephone call) and “attendant circumstances”—(1) that Ms. Russell was a victim of a criminal act and (2) that the call was made to 911—emergency telephone system-should be separately listed.
IV. CONCLUSION
Based upon the foregoing analysis, we vacate Pond’s conviction of abuse of family or household member and Interference, and remand for further proceedings consistent with this opinion.
Notes
. The published opinion was authored by Associate Judge Corinne K.A. Watanabe and joined by Associate Judges Daniel R. Foley and Alexa D.M. Fujise.
. The Honorable Richard T. Bissen presided.
. HRS § 709-906, entitled "Abuse of family or household members; penalty,” states:
(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.
For the purposes of this section, "family or household member” means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.
(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.
(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a "repeat offender” and serve a minimum jail sentence of thirty days.
. HRS § 710-1010.5, entitled "Interference with reporting an emergency or crime,” provided as follows:
(1) A person commits the offense of interference with reporting an emergency or crime if the person intentionally or knowingly prevents a victim or witness to a criminal act from calling a 911-emergency telephone system, obtaining medical assistance, or making a report to a law enforcement officer.
(2) Interference with the reporting of an emergency or crime is a petty misdemeanor.
. HRE Rule 404(b) provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to prove the character of a person in order to show conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.
. When Officer Kaneshiro asked Ms. Russell to explain what happened, she stated that after Pond came home, "[they] got into a verbal argument; he began pushing her, and ... at one point pushed her against the wall. She stated that he hit her in the head, and threw her cell [phone] against the wall while she was trying to call 911. And he bit her in the lip or on the mouth, something like that.”
. The Advisory Committee Note to the 1991 Amendments to FRE Rule 404(b) further explains:
Other than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case.
The amendment requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal. The court in its discretion may, under the facts, decide that the particular request or notice was not reasonable, either because of the lack of timeliness or completeness.
. HRE Rule 404(b) and the FRE Rule 404(b) also differ because HRE Rule 404(b) requires a more detailed form of notice ("date, location, and general nature of any such evidence”) whereas FRE 404(b) merely requires “reasonable notice ... of the general nature of any such evidence.” Pond,
. Cf. Holmes v. South Carolina,
. HRE Rule 412 requires a defendant accused of committing sexual assault intending to submit evidence of an alleged victim’s past sexual behavior to submit written notice fifteen days prior to the introduction of evidence unless the court determines that the evidence or an issue is newly discovered, and HRE Rule 803(24) requires a notice of intent to admit hearsay evidence that has circumstantial guarantees of trustworthiness.
. Peseti declared that a defendant's constitutional right of confrontation trumps a statutory privilege
when the defendant demonstrates that: "(1) there is a legitimate need to disclose the protected information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists.”
Peseti,
. In Pond, the ICA explained that FRE Rule 404(b) "does not extend to evidence of acts which are ‘intrinsic to the charged offense.’ ” Pond,
. FRE 608(b) provides,
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
. As the Supreme Court explained in Delaware v. Van Arsdall,
The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.
Van Arsdall,
Concurrence Opinion
Concurring and Dissenting Opinion by
I concur except, respectfully, I believe that the Intermediate Court of Appeals (ICA) did gravely err (1) in affirming the decision of the Second Circuit Family Court (the court) to exclude, based on a purported violation of the notice provision in Hawai'i Rules of Evidence (HRE) Rule 404(b) (Supp.2007), evidence submitted by Petitioner/Defendant-Appellant Kevin Pond (Petitioner) that the Complainant herein (Complainant) struck him prior to the incident in question; (2) in affirming the court’s decision to deny Petitioner’s request for a continuance; and (3) in affirming the ruling of the court that the jury instruction on self-defense was proper. State v. Pond,
I.
First, while the majority herein overturns the ICA’s holding excluding the Complainant’s marijuana use, with all due respect I believe it incorrectly fails to treat the assault evidence proposed by Petitioner similarly.
A.
The ICA and the majority note that in consonance with parallel changes made in 1991 to the Federal Rules of Evidence (FRE), “reasonable notice” was added to HRE 404(b) by the legislature in 1994. Id. at 347,
But the term “condition precedent” in the federal commentary is not contained in HRE 404(b), Rule 404 Commentary, or legislative history.
Significantly, the majority references to differences between HRE Rule 404(b) and statutory privileges fail to mention that the notice requirement in FRE Rule 404(b) applies only to the prosecution. This patent difference makes the cases citing FRE Rule 404(b) and the commentary to FRE Rule 404(b) inapplicable to the instant case. Stricter enforcement of the notice requirement under FRE Rule 404(b) is implicated inasmuch as a violation of the requirement may result in a violation of the defendant’s constitutional rights. See discussion infra. Thus, the 1991 Advisory Committee Note to FRE Rule 404(b), cited in the majority opinion at 465,
Similarly, the majority’s argument that FRE Rule 404(b) is “ ‘in the mainstream with notice and disclosure provisions in other rules of evidence,’ such as FRE Rule[s] 412[,] ... 609[,] ... 803(24) and 804(b)(5),” majority opinion at 465,
First, as repeatedly noted, see infra, it is not argued in this opinion that an evidentiary rule applicable to both the prosecution and the defense is per se unconstitutional. Rather, it is contended, see infra, that rules precluding a defendant from introducing evidence relevant to his defense should not be applied automatically without balancing the enforcement of the rule against a resulting violation of the defendant’s constitutional rights.
Second, with respect to the aforementioned evidence rules cited by the majority, the notice provisions in FRE and HRE Rule 412
B.
To support its holding, the ICA cited United States v. Long,
In citing Long, the ICA noted that the United States District Court of Kansas held that “[t]he court has the discretion to determine whether a particular notice is not reasonable due to incompleteness. The notice requirement is a prerequisite to admissibility of the Rule 404(b) evidence.” Id. at 348,
C.
1.
The same must be said about the state cases relied on by the ICA. In Hatcher, the defense objected to the prosecution’s 404(b) notice six days before trial, arguing that “no good cause was shown by the [prosecution] for failing to give earlier notice.”
In Scott, the defendant appealed the admission of “evidence of extraneous offenses” on the ground that the provision of only six-days’ notice was unreasonable. 57 S.W.3d at
In Scott, the defense counsel was retained to represent the defendant in connection with three separate sexual assault charges involving different complainants. Id. at 481. Ten days before trial, the prosecution decided not to pursue two of those cases. Id. Six days before trial, the prosecution notified the defendant that it intended to introduce twenty-two “extraneous offenses,” id. at 479, eleven of which related to the two dropped charges of sexual assault, id. at 481. The prosecution was allowed to introduce some of this evidence during the guilt phase of the trial. Id. at 479-80. Before the “punishment phase” of trial, the prosecution again gave the defendant notice of its intent to introduce evidence of the twenty-two extraneous offenses. Id. at 480. The evidence was admitted over the defendant’s objection for lack of notice. Id. On appeal, the defendant argued that the trial court erred in admitting the evidence over his objection. Id. at 478.
Analyzing the “facts and circumstances” of that ease, the Scott court concluded that, because defense counsel was made aware of and investigated the evidence that the prosecution sought to introduce before the guilt phase of trial—but did not object to admission of the evidence at that point, the defendant was not “surprised or disadvantaged because of lack of preparation time.” Id. at 482-83. Thus, the Texas court concluded that the trial court did not abuse its discretion in “finding that notice was reasonable.” Id.
2.
With all due respect, the ICA inappropriately based its holdings on Hatcher and Scott for several reasons. First, as discussed infra, like the federal rule, the “reasonable notice” requirement in Indiana and Texas applies to the prosecution only. The reasonable notice requirement is triggered when the defendant in a criminal case makes a timely request for such notice to the prosecution. See Hatcher,
Second, no constitutional issues relating to the defendant’s due process rights were raised in any of the cases relied on by the ICA, since, obviously, the notice obligation ran only to the prosecution. Thus, the defendant’s
Third, in both cases the defense sought to exclude evidence the prosecution sought to introduce at trial. Thus, the evidentiary issues in Hatcher and Scott differ from the instant ease. In Hatcher and Scott, it was the prosecution’s unreasonable notice that was in dispute. The evidence sought to be admitted would have enhanced the credibility of the prosecution’s 404(b) evidence as the complainants in both cases were not the sole witnesses of the evidence (in Hatcher, the victim was deceased).
In this case, Petitioner sought to introduce evidence over Respondent’s objections. Petitioner testified that the Complainant had struck him on a prior occasion. However, Respondent objected and the court sustained the objection, ordering that Petitioner’s testimony on this issue be stricken and that the jury disregard it. In conjunction with constitutional right claims, Petitioner argued that because the Complainant in this case was the sole witness to the prior alleged assault, it was highly relevant to his defense of self-defense. Unlike in Hatcher and Scott, where additional witnesses were available to address the credibility of the complainant’s 404(b) evidence, apparently Petitioner and the Complainant were the only witnesses germane to Petitioner’s defense of self-defense. The evidence was particularly critical to Petitioner’s defense because based on Petitioner’s representation, he and Complainant were the sole witnesses to the alleged prior attack by Complainant. There was no other means by which Petitioner could adduce evidence of Complainant’s alleged attack other than by testifying himself on the matter and by cross-examining Complainant about it. Thus, in striking Petitioner’s testimony on the alleged prior attack, the court denied Petitioner his only opportunity to adduce evidence about the attack.
II.
A.
Petitioner argues, also, that “the interests forwarded by the notice requirements” of HRE Rule 404(b) do not prevail over “[Petitioner’s] constitutional rights” including the “rights to fair trial, to present a defense and [to] cross-examination.” Respondent contends that HRE Rule 404(b) may properly serve as a basis for excluding evidence proffered by Petitioner insofar as Petitioner “fail[ed] to give reasonable notice of the 404(b) evidence in advance of trial.” The ICA agreed with Respondent that HRE 404(b) is a “valid basis” for excluding evidence, and therefore, “the [court’s] decision to preclude the admission of evidence that [Complainant] allegedly struck [Petitioner] on a prior occasion did not constitute an abuse of discretion.” Pond,
However, this does not sanction unconstitutional application of the rule. Neither the court nor the ICA balanced the interests of enforcing the notice requirement of HRE
B.
The court and the ICA did not consider State v. Peseti,
This court recognized that “statutory privileges, such as the victim-counselor privilege at issue ... operate to preclude the admission at trial of certain classes of confidential communications.” Id. at 180,
Because the right to confrontation guaranteed by article I, section 14 of the Hawaii Constitution “will not trump a statutory privilege in every ease in which a conflict arises between the two[,]” id. at 182,
C.
1.
The instant case is analogous to Peseti Here, Petitioner argues that the court, in prohibiting him from introducing evidence about the Complainant’s prior attack on him, “violat[ed] his constitutional rights to present a defense and [to] eross-examin[e]” a witness. Because HRE Rule 404(b), like the privilege provision of HRE Rule 505.5(b), “operate[s] to preclude the admission at trial of certain” information, id. at 180,
2.
The circumstances identified by this court under which the defendant’s constitutional rights will control over a statutory privilege are met here. First, “there [was] a legitimate need to disclose the [prohibited] infor-mationf.]” Id. at 182,
Petitioner had proffered evidence of Complainant’s prior attack under HRE Rule 404(b)(2) because the evidence was “relevant to the issue of ‘first aggressor’ and the reasonableness of [Petitioner’s] belief that he was justified in using protective force against her.” After the court precluded Petitioner from introducing the evidence under HRE Rule 404(b) due to Petitioner’s failure to comply with that subsection’s notice requirement, Petitioner requested that the court admit his testimony regarding the prior attack as HRE Rule 404(a) evidence, over Respondent’s objection. However, the court sustained the objection, struck the testimony, and instructed the jury to disregard it.
Contrary to the majority’s position that the court did not err by precluding this evidence under HRE Rule 404(b), as discussed infra, the court’s preclusion constituted error. See HRE Rule 404(a)(2) (providing that “[evidence of a pertinent trait of character of the victim of the crime offered by an accused” may be admitted “for the purpose of proving action in conformity therewith on a particular occasion”); State v. Basque,
Second, the evidence proffered by Petitioner was “relevant and material to the issue before the court[.]” Peseti, 101 Hawai'i
Third, Petitioner, as “the party seeking to [introduce the evidence,] show[ed] by a preponderance of the evidence that no less intrusive source for that information exists.’ ” Id. Petitioner testified that the alleged prior attack by Complainant occurred when they were at home together. Because there were no other witnesses to that alleged attack and no documentation or other evidence that the attack occurred, the only means by which to introduce evidence of the Complainant’s prior attack was by Petitioner’s testimony. Thus, the court, in prohibiting Petitioner from providing such evidence, denied Petitioner the only opportunity available to him to introduce the evidence. Accordingly, HRE Rule 404(b) should have given way to Petitioner’s constitutional right to present the evidence he proffered in this case.
D.
The holding in Peseti that a defendant’s constitutional rights may take precedence over enforcement of evidentiary rules, is supported by other case law. In State v. French,
Previous to this case, the ICA itself had held that “the circuit court did abuse its discretion by not conducting an in camera review of the complaining witness’s APD records!.]” Id. In reaching that holding, the ICA cited Peseti, stating that case “specifically held ‘that, when a statutory privilege interferes with a defendant’s constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness’ statutory privilege must, in the interest of the truth-seeking process, bow to the defendant’s constitutional rights.’” Id. at 95,
In Chambers v. Mississippi,
The charges against McDonald were dropped and the prosecution proceeded with the murder prosecution against Chambers. Id. At trial, Chambers alleged that McDonald had indeed shot the officer. Id. at 289,
In reversing the court, the U.S. Supreme Court recognized that “[t]he rights to confront and cross-examine witnesses and to call ■witnesses in one’s own behalf have long been recognized as essential to due process.” Id. at 294,
Although some cases uphold the exclusion of evidence in the face of a constitutional challenge by the defendant, those cases are distinguishable. In State v. Calaro,
Calan is distinguishable from the instant case in that the grounds for excluding the evidence was the court’s determination that under HRE Rule 403 (1993), the probative value of the evidence was outweighed by the danger of prejudice, confusion of the issues, misleading the jury, and undue delay. In general, such determinations are within the province of the court and should not be disturbed by an appellate court. See Sato v. Tawata,
In contrast, here, the court apparently did not consider HRE Rule 403 in excluding the evidence proffered by Petitioner. Thus, this case is unlike Calan where the court exercised its discretion on a matter which it is “eminently suited” to determine, namely, the balancing of the probative value of evidence against the dangers that the evidence is prejudicial, confusing, misleading, or a waste of time. Rather, as noted above, the problem with the court’s exclusion of Petitioner’s evidence lies in the fact that it did not exercise any discretion in balancing Petitioner’s constitutional rights against the strict enforcement of the HRE 404(b) notice requirement.
In State v. Iwatate,
Iwatate is distinguishable from the instant case in that the circuit court, under HRE Rule 510(e)(3), was at liberty there to exercise discretion regarding whether the information “received from an informer [can be] reasonably believed to be reliable or credible.” Thus, the ICA deferred to the circuit court’s judgment on this issue. As in Calato, the ICA in Iwatate did not disturb the determination of the circuit court on matters for which it was authorized to exercise discretion where there was no indication that the circuit courts’ determinations were erroneous. Contrastingly, here, the court did not properly exercise discretion in precluding Petitioner’s evidence because the court strictly applied the notice requirement of HRE Rule 404(b) without considering other factors such as the harm to Petitioner’s constitutional rights.
In sum, consistent with the precedent in our jurisdiction, we must balance the rights to present a fair defense and to cross-examine with “other legitimate interests in the criminal trial process.” State v. Nizam,
E.
The majority argues that “[t]he Peseti rule[
Peseti stands for the proposition that the enforcement of statutes precluding admission of evidence by a defendant requires that the defendant’s constitutional rights be weighed
An evidentiary “rule may not be applied mechanistically to defeat the ends of justice.” Chambers,
The majority also argues that the Peseti rule is inapplicable in the instant ease because “the Peseti rule was not designed or intended to address evidentiary notice requirements.” Majority opinion at 466,
III.
The majority also argues that “applying the Peseti test to otherwise admissible HRE Rule 404(b) evidence invariably renders the rule’s notice requirements unconstitutional” because “it appears that relevant HRE Rule 404(b) evidence would always satisfy the Pes-eti test and therefore, be rendered admissible.” Majority opinion at 466,
A.
The majority cites Michigan v. Lucas,
Lucas concerned whether the trial court could preclude evidence proffered by the defendant, who was accused of criminal sexual conduct, regarding his past sexual relations with the victim where the defendant failed to comply with the rape shield statute’s eviden-tiary notice requirements. As posed by the Supreme Court, the issue there was whether the “notice-and-hearing requirement [of the rape shield law] is unconstitutional in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant.”
It is not argued in this dissent that a statute or rule that impinges on a defendant’s constitutional right, including the right to confront witnesses and the right to present a defense, is unconstitutional per se. The error committed by the court and the ICA did not involve a determination that HRE Rule 404(b) was per se unconstitutional. Rather, as discussed supra, the error was the failure of the court to balance the interests of enforcing the notice requirements of HRE Rule 404(b) against the interests of protecting Petitioner’s constitutional rights. In accordance with Peseti, a defendant’s constitutional right to confrontation, guaranteed by article I, section 14 of the Hawaii Constitution, may prevail over statutory provisions that preclude the admission of certain evidence, under the three factors discussed previously. See Peseti,
Indeed, the proposition that a statutory provision precluding the admission of evidence may violate a defendant’s constitutional rights, is supported by Lucas insofar as Lucas remanded the case to the Michigan court to determine “whether, on the facts of this case, preclusion violated [the defendant’s] rights under the Sixth Amendment.” Lucas,
Taylor, like Lucas, is inapplicable because it too involved the question of whether a rule precluding the admission of evidence proffered by the defendant was per se inappropriate. There, the petitioner, convicted of attempted murder, argued “that the sanction of preclusion of the testimony of a previously undisclosed witness is so drastic that it should never be imposed.” Taylor,
That court held that “[t]he integrity of the adversary process ... must also weigh in the balance.” Id. at 414-15,
This case is distinguishable from Taylor as it does not involve an argument that HRE Rule 404(b) is per se inappropriate or unconstitutional. This case is also distinguishable in that there was no finding by the court and no argument made by the parties that the delayed notice regarding the HRE Rule 404(b) evidence was attributable to “willful misconduct.” Moreover, Taylor supports this dissent’s position that in deciding whether to enforce a rule that precludes evidence, the court must “balance” the defendant’s rights against the interests in enforcing the rule. Id. at 414-15,
Nobles is also not analagous to the instant case. There, the defendant was convicted of bank robbery. The U.S. Supreme Court upheld the trial court’s refusal to allow the defense investigator to testify about his interviews with prosecution witnesses inasmuch as the defense stated that “it did not intend to produce the [investigator’s] report” for examination by the prosecution.
Nobles observed that the trial court “did not bar the investigator’s testimony” but instead, “merely prevented [the defendant] from presenting to the jury a partial view of the credibility issue by adducing the investigator’s testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights.” Id. This situation is entirely different from the instant case where Petitioner was not presented with a choice to introduce the evidence, but was instead summarily denied that right despite the explanation he offered for the delayed notice.
Wardius is likewise inapplicable. The question before the court was whether an Oregon statute precluding the introduction of alibi evidence where notice of the alibi defense was not given prior to trial violated a defendant’s due process rights because it did not provide for reciprocal discovery.
Wardius is manifestly inappropriate inasmuch as the “reciprocal discoveiy” provision of a statute is not at issue. Moreover, this dissent does not take issue with the statement in Wardius, quoted by the majority, that “ ‘the growth of [ ] discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system[.]’ ” Majority opinion at 464,
B.
The majority also cites Williams v. Florida,
IV.
Second, in my view the court should have conducted an inquiry into whether a continuance was required in this case in light of Petitioner’s right to present a complete defense and to cross-examine. Even though not expressly raised in the certiorari application, a trial court should consider whether a continuance would cure a discovery-like violation.
However, neither the court nor the ICA conducted the requisite inquiry into the relative equities related to a decision regarding a requested continuance, i.e., Petitioner’s constitutional rights to present a defense and to cross-examine and prejudice to Respondent. “An abuse of discretion occurs when the court clearly exceeds the bounds of reason or
A.
In Dowsett, prior to trial and pursuant to HRPP Rule 16,
The prosecutor admitted knowing about the document “ ‘approximately two weeks before trial’ but stated he ‘forgot about it.’” Id. The defendant maintained that the prosecutor’s failure to disclose the document was “extremely prejudicial” and requested a mistrial. Id. The trial court granted the defendant’s motion, dismissing the case with prejudice, on the ground that the document “was a ‘substantial part of [defendant's defense and was necessary for [defendant for his use in cross examination of the complaining witness.’ ” Id.
On appeal, the ICA in Dowsett noted that although the trial court has broad discretion in considering a motion to dismiss, “before the court orders dismissal of a case because of the [prosecutor’s] violation of HRPP Rule 16,[
Despite the fact that the existence of the relevant document in the Dowsett case was revealed after the trial had begun and the complaining witness had already testified, the ICA noted that the prosecution had not yet closed its case when the document came to light. Id. at 495,
B.
In State v. Estrada,
On the third day of trial, during an in limine hearing to determine the relevance of the former girlfriend’s testimony, the girlfriend revealed the existence of another abuse complaint against the complainant that was documented in the Ogawa Report. Id. Had the witness not mentioned the Ogawa Report, the defendant would not have known of its existence. It was also found that the report was prepared in September 1985, about two months after the discovery request. Id.
The defendant asked for a continuance to review the Ogawa Report and investigate the former girlfriend’s allegations, which she had subsequently recanted. Id. The trial court denied the request, ruled both reports inadmissible, and precluded the former girlfriend from testifying, concluding that “[her] charges had been exaggerated, were not relevant, or alternatively, even if they were relevant, their probative value would be substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or waste of time.” Id.
On appeal, this court held that although the trial court had discretion to deny the continuance, it abused its discretion. Id. at 214-15,
V.
Analogous to the present case, Dowsett and Estrada involved the impact of new evidence on a defendant’s ability to fairly and adequately present a defense. First, the discovery rule involved in Dowsett and Estrada, HRPP 16(b), and the notice requirement of HRE Rule 404(b) implicated in this case, are alike. In Dowsett, the ICA explained that strict adherence to the discovery rules was essential to the truth-finding function of finals and a necessary component of judicial efficiency.
VI.
However, the violation of the discovery rule in Dowsett and Estrada was not enough to preclude admission of the evidence at trial.
Respondent argued Petitioner failed to “give reasonable notice of the HRE Rule 404(b) evidence in advance of trial[,]” and he “failed to show good cause to excuse pretrial notice.” According to Respondent, “[the court] did not find an adequate showing to excuse pretrial notice,” given that Petitioner “could have gave [sic] notice of at least a[n] estimated time period, the location, and general nature of the evidence” he sought to admit even though he could not remember the exact date of the prior attack.
But in Estrada, this court held that a continuance was “an appropriate remedy to cure the harm created by [the prosecution’s] unexplained delays in providing discovery of essential information.”
VII.
Assuming, arguendo, that the notice was not “reasonable notice in advance of trial[,]” the court made no finding regarding whether, in light of Petitioner’s constitutional claim and the lack of any expression of prejudice by Respondent, a continuance was appropriate or not. Respondent restated the court’s rationale in denying the continuance on grounds that “if the evidence went to the heart of [Petitioner’s defense, the evidence should have been given more prominence.” On the other hand, Petitioner asserted that “the [HRE Rule] 404(b) evidence was central to [his] self-defense defense and without it counsel could not adequately defend [Petitioner.]”
VIII.
Indeed, the court did not at all consider the impact that excluding the evidence would have on Petitioner’s constitutional rights, and weigh that right against any prejudice shown by Respondent because of a continuance. The court made no inquiry as to the feasibility of investigating the alleged prior assault. There was no evidence that -witnesses other than the Complainant would be a witness, or that other witnesses would be necessary, and, if so, that the delay would prevent Respondent from being able to prosecute. Cor-relatively, Respondent did not make any showing that it had been prejudiced by the failure to disclose the incident earlier.
In light of the holdings in Dowsett and Estrada, the court should have at the least conducted an inquiry into the feasibility of a short continuance to cure any perceived prejudice suffered by Respondent in order to preserve the integrity of the criminal proceedings. The court was required to “consider whether less severe measures would rectify [any] prejudice,” Dowsett,
As noted in Estrada, the court “made no inquiry regarding ... whether any prejudice resulted from [Petitioner’s] misconudct.”
IX.
Third, I would vacate the court’s and the ICA’s judgments and remand the case because the self-defense instruction given was incorrect. Petitioner argues that the ICA erred in affirming the court’s instruction to the jury on self-defense. The court issued the following jury instruction on self-defense:
The use of force upon or towards another person is justified when a person reasonably believes that such force is immediately necessary to protect himself on the present occasion against the use of unlawful force by the other person. A person employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating. If, and only if, you find that the defendant was reckless in having a belief that he was justified in using self-protective force against another person, or that the defendant was reckless in acquiring or failing to acquire any knowledge or belief winch was material to the justifiability of his use of force against the other person, then the use of such protective force is unavailable as a defense to the offense of abuse of family or household member.
In Estrada, this court held that the following instructions on self-defense were proper:
INSTRUCTION NO. 19
(STATE’S INSTRUCTION NO. 8)
A person is justified in using force upon or toward another when the person using the force reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
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INSTRUCTION NO. 23
(DEFENDANT’S INSTRUCTION NO. 4)
The reasonableness of the Defendant’s belief shall be determined from the point of view of a reasonable person in the Defendant’s position under the circumstances as he believed them to be.
In State v. Pemberton,
The reasonableness of the Defendant’s belief shall be determined from the viewpoint of a reasonable person in the Defendant’s position under the circumstances shown in the evidence.
(Emphasis added.)
The Pemberton court held that the standard for evaluating a claim of self-defense requires the jury to “consider the circumstances as the Defendant subjectively believed them to be at the time he tried to defend himself.” Id. (emphasis added). This court explained that “[t]he instruction given in this case allowed the jury to consider all the circumstances show by the evidence, regardless of whether or not Defendant was aware of them” and the instructions given above were therefore “misleading and erroneous.” Id. Hence, this court agreed with the defendant’s argument there that in requiring the jury to “consider all the circumstances shown by the evidence, regardless of whether or not Defendant was aware of them[,]” the instruction “allowed the jury to disregard Defendant’s perception of the alleged incident” and “directed] them to apply an objective standard instead.” Id. (emphasis added).
The Hawai'i Committee on Pattern Jury Instructions-Criminal (HAWJIC) relied on this court’s express statements in Estrada
In Augustin, a majority of this court dismissed a certiorari proceeding brought by a petitioner who argued that the self-defense instruction given during his trial for murder was erroneous. The majority sanctioned the HAWJIC pattern instruction. The instruction read as follows:
The use of deadly force upon or toward another person is justified when a defendant using such force reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death or serious bodily injury. The reasonableness of the defendant’s belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be.
The eommentaiy to the self-defense statute, HRS § 703-304, states that “Hawaii case law require[s] that the defendant’s belief [regarding the necessity of using force in self-defense must] be reasonable.” Commentary to HRS § 703-304. The commentary cites the case of State v. Clyde,
The law of self-defense is founded on the principle of necessity, either actual or apparent, and in order to justify the taking of human life on this ground the slayer, as a reasonable man, must have reason to believe and must believe that he is in danger of receiving great bodily harm; and further, the circumstances must be such that an ordinarily reasonable person, if he were in those circumstances and if he knew and saw what such person in real or apparent danger knows and sees, would believe that it was necessary for him to use, in his defense and to avoid great bodily injury to himself, such force or means as might cause the death of his adversary.
Id. at 354-55,
In light of the foregoing eases, and as the HAWJIC Advisory Committee indicated, a proper jury instruction on self-defense contains both a subjective prong and an objective prong. Under the objective prong, emphasis is placed on the reasonable person standard so the defendant’s use of force must be “determined from the point of view of a reasonable person[.j” Estrada,
Under the subjective prong the jury is required to evaluate the use of force from the defendant’s perspective. Under the subjective prong, the focus is on the circumstances known to the defendant, thus directing the jury to consider the actions of a “reasonable person in the [defendant's position under the circumstances as he believed them to be.” Estrada,
In the instant case, Petitioner is correct that the instruction was erroneous because the necessary reference to the subjective prong of the self-defense test was lacking. The statement in the instructions that the use of force may be “estimated ... under the circumstances as [the defendant] reasonably believes them to be” (emphasis added) is not equivalent to an instruction that the use of force must be evaluated from a person in defendant’s position. The statement, “under the circumstances as he reasonably believes them to be,” omits the requirement that the viewpoint be that of a person who is “in the defendant’s position” which would satisfy the requirement that the defendant’s subjective belief is accounted for. Similar to Pemberton, the reference to “reasonable belief’ results in an incomplete instruction
There was insufficient guidance to the jury here to evaluate the use of force from Petitioner’s point of view because the instruction lacked express language pertaining to Petitioner’s position. The question of whether the defendant’s subjective view of the circumstances was reasonable is a separate question. This distinction was recognized in Estrada, in Pemberton, in HAWJIC, and in Augustin.
By approving the language used in the self-defense instruction in the instant case as a substitute for the language sanctioned in the foregoing cases, the majority has reduced the self-defense instruction to one of an objective standard only. In doing so, “the substantial rights of the defendant have been affected adversely,” Nichols,
. The ICA held that "[the court's] decision to preclude the admission of evidence that [Complainant] allegedly struck [Petitioner] on a prior occasion did not constitute an abuse of discretion[]” and that "no abuse of discretion occurred when the [court] precluded [Petitioner] from cross-examining [Complainant] about her alleged marijuana use[.]”
. The legislative history states that "[t]he notice provision parallels the change made in 1991 to the [FRE].” Sen. Stand. Comm. Rep. No. 2744, in 1994 Senate Journal, at 1092; see also Hse. Stand. Comm. Rep. No. 567-94, in 1994 House Journal, at 1088 (the modification was "modeled after a change recently made to the [FRE]"). This is not accurate, however, inasmuch as under HRE Rule 404(b), the notice provision applies to both parties and the FRE 404(b) notice provision applies to the prosecution only.
. HRE 404(b) states, in relevant part: "In criminal cases, the proponent of evidence to be offered under the subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.” (Emphasis added.)
. HRE Rule 609 does not impose a notice re-quiremenl with respect to the offer of evidence.
. Texas Rules of Evidence Rule 404(b) provides in pertinent part that evidence of other crimes, wrongs or acts
may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the [prosecution’s] case-in-chief such evidence other than that arising in the same transaction.
(Emphases added.)
. Indiana Rules of Evidence Rule 404(b) provides in pertinent part that evidence of other crimes, wrongs, or acts
may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
(Emphasis added.)
. Because the court denied Petitioner's request to introduce evidence that Complainant allegedly attacked Petitioner on a prior occasion, on the ground that Petitioner had not given the requisite notice to Respondent under HRE Rule 404(b), Petitioner was effectively precluded from cross-examining Complainant about this alleged prior attack as well, as noted herein.
. HRE Rule 505.5(b) governing the victim-counselor privilege provides in relevant part:
(b) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made lo a victim counselor for the purpose of counseling or treatment of the victim for the emotional or psychological effects of sexual assault, domestic violence, or child abuse or neglect, and to refuse to provide evidence that would identify the name, location, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim.
(Emphasis added.)
. HRE Rule 504.1(b) governing the psychologist-client privilege provides:
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential com-municalions made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse, among oneself, the client's psychologist, and persons who are participating in the counseling or psychotherapy under the direction of the psychologist, including members of the client's family.
(Emphasis added.)
.Article I, section 14 of the Hawaii Constitution provides in relevant part that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accusedf.]" The sixth amendment to the United States Constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[J”
. HRS § 806-73 governs the duties and powers of probation officers and adult probation records. In general, under that statute, “all records of the Hawaii state adult probation divisions shall be confidential and shall not be deemed to be public records.” HRS § 806—73(b)
. HRE Rule 510 provides that "[t]he government ... has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation." HRE Rule 510(a). An exception to this general rule exists under HRE Rule 510(c)(3) whereby the "judge may require the identity of the informer to be disclosed” in certain instances where "the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible[J”
. The rule referred to by the majority is the holding in Peseti that " 'when a statutory privilege interferes with a defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant’s constitutional rights.’ ’’ Majority opinion at 466,
.The majority notes that the goal of the victim-counselor statutory privilege in Peseti was to "assuref ] victims that 'their thoughts and feelings will remain confidential’ and thereby promotes successful counseling." Majority opinion at 466,
. This issue was not expressly raised in the Amended Application for Writ of Certiorari (Application). However, Petitioner did include it in his "Points of Error” raised with the ICA. ("The court erred when it ... denied [djefense counsel’s motion to continue trial and allow him time to file written notice under HRE [Rule] 404(b).”) Nevertheless, because, as discussed infra, I believe that in denying the continuance the court abused its discretion and substantially prejudiced Petitioner's constitutional right to put forth a defense, see State v. Vliet,
. Defense counsel maintained that he was unable to communicate with Petitioner until the day of trial to obtain the date of the prior assault. In addition, defense counsel stated that he was "stuck in court all day in trials” on the Friday before and did not receive notice until that Friday that Petitioner's trial had been moved ahead in the court's schedule and would therefore begin sooner than anticipated.
. HRPP Rule 16 (1991), the version in effect when the trial court in Dowsett issued its discovery order, required that "the prosecutor shall disclose” certain "material and information within the prosecutor’s possession or controlf,]” including, pertinently, "any books, papers, documents, photographs, or tangible objects ... which are material to the preparation of the defense and are specifically designated in writing by defense counsel." HRPP Rule 16(b)(l)(iv).
. HRPP Rule 16, entitled "Discovery,” reads, in pertinent part:
(e) Regulation of discovery.
(9) Sanctions.
(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances.
. Similarly, the majority’s argument that the explanation offered by Petitioner for failure to provide advance notice of the Complainant's alleged prior attack was “disingenuous at best[,]” and that Petitioner’s explanation that he wasn’t able to pinpoint the day of the alleged prior attack until the morning of the trial, did not constitute "good cause for delaying the notification,” majorily opinion at 468,
. In this case, Petitioner requested a continuance to allow time to file the HRE Rule 404(b) notice before trial. Petitioner maintains that (a) “there was no evidence that defense counsel intentionally delayed until the morning of trial to give HRE 404(b) notice to [Respondent] or did so to gain unfair advantage,” and (b) prior notice of intent to introduce the 404(b) evidence was not given because “[Petitioner] did not remember the date [of Complainant’s prior attack] until the morning of trial.” The ICA affirmed the court’s ruling, holding that the court “did not abuse its discretion when it precluded the admission of HRE 404(b) evidence and denied [Petitioner’s] motion to continue trial.” Pond,
. HRS § 703-304 reads in relevant part:
Use of force in self-protection. (1) ... [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
(3) ... [A] person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(Boldfaced font in original.)
. Here, Petitioner did not object at trial to the instruction. This court has recognized that “the duty to properly instruct the jury lies with the trial court[.]” Nichols,
. It should be noted that "while the HAWJIC 'have been approved for publication, the Hawai'i Supreme Court has not approved the substance of any of the pattern instructions' ... and the courts are not bound by them." State v. Gomes,
. As noted in the Augustin dissent, in my view the petitioner's application for certiorari in that case "should have been granted primarily to clarify the state of our case law with regard to the use of force defense to protect oneself or others” that was raised by the petitioner. Augus-tin,
First, under the subjective portion of the test, it must be asked whether a defendant's belief that self-defense was necessary under the circumstances as he or she believed them to be, is actual and real.... Second, assuming it was, the fact finder must consider whether the prosecution has proved that the defendant’s view of the circumstances was unreasonable. [Third, i]f the prosecution fails to do so, then the fact finder must decide whether the prosecution has established that a reasonable person under those circumstances would believe the force used was necessary.
Id. at 135,
Thus, the "jury [was] seemingly foreclosed from considering whether the defendant's interpretation of the circumstances was reasonable." Id. at 134,
Although this was a published order dismissing certiorari, unpublished orders rejecting applications for certiorari and dissents thereto may be found in the LexisNexis database at http://www. lexis.com.
. The standard of review for jury instructions is “whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading." State v. Crail,
. However, because this case has been remanded, and with all due respect, the court is at liberty to give the HAWJIC instruction although its giving was not reversed.
Concurrence Opinion
Concurring and Dissenting Opinion by
I concur with the majority opinion with one exception: I believe the Intermediate Court of Appeals (ICA) erred in its finding that the circuit court’s jury instruction on self-defense was proper. State v. Pond,