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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 17-DEC-2021 07:58 AM Dkt. 70 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. ROSS K. MACARIOLA, JR., Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (SOUTH KOHALA DIVISION) (CASE NO. 3DCW-XX-XXXXXXX)
MEMORANDUM OPINION (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Ross K. Macariola (Macariola)
appeals from the September 20, 2018 Judgment and Notice of Entry
of Judgment (Judgment) entered against him by the District Court
of the Third Circuit, South Kohala Division (District Court).1
Macariola was convicted of Assault in the Third Degree
under Hawaii Revised Statutes (HRS) § 707-712(1)(a)(2014)2
(Assault Third) and sentenced to ten days of confinement with
1 The Honorable Mahilani E.K. Hiatt presided. 2 HRS § 707-712 provides, in pertinent part:
§ 707-712 Assault in the third degree. (1) A person commits the offense of assault in the third degree if the person: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Negligently causes bodily injury to another person with a dangerous instrument. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
eight days suspended and placed on probation for one year. On
appeal, Macariola requests that this court reverse the
conviction.
I. BACKGROUND
On May 2, 2018, the State of Hawai#i (State) filed a
Complaint against Macariola, alleging that Macariola had
"intentionally, knowingly or recklessly caused bodily injury to
another person, RAYNARD TORRES [(Torres)], thereby committing the
offense of Assault in the Third Degree, in violation of Section
707-712(1)(a), [HRS]."
During pretrial proceedings on August 7, 2018, the
District Court stated that pretrial motions were due on or before
August 23, 2018, and that responses to these motions, witness
lists, and exhibit lists were due on September 13, 2018. As
discussed herein, both the State and District Court subsequently
misstated the date that witness and exhibit lists were due. On
appeal, the parties concur that the deadline for witness and
exhibit lists was September 13, 2018.
On September 13, 2018, Macariola filed a witness list
and a Notice of Intent to Offer Character Evidence (Notice) under
Hawai#i Rules of Evidence (HRE) Rules 404(a)(2) and 404(b).
Macariola's Notice indicated his intent to introduce evidence
about Torres's prior criminal convictions, specifically, "an
assault in 2007, a TRO violation in 2013, a harassment case in
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2013, and a case of Abuse of a Family/Household Member in 2014;
as well as evidence of his Promotion of Dangerous Drugs in 2008."
Macariola's witness list named Harry Yim (Yim) as a
defense witness, though it did not provide an address or any
other contact information and stated that Yim's address was
unknown.
The District Court found the Notice was sufficient, but
excluded the character evidence as irrelevant. The District
Court also denied Macariola's request to present Yim as a
witness, as well as his request to continue the trial to permit
the State to interview Yim. The District Court's decision to
preclude Yim's testimony was largely premised on both the State
and District Court's mistaken belief that the witness list had
not been filed in accordance with trial milestones. MS. BAILEY: Um, the State does not have that witness list in its file, but the deadline was August 23rd, 2018. And pursuant to Rule 16, there also be -- needs to be a way for, especially if the person's not identified in discovery, a way for the State to -- to contact that individual, and there was no contact information provided.
. . . .
THE COURT: Uh, my understanding, from review of the minutes3 and from the procedure, uh, that I've seen the Court follow, is that the pretrial motion deadline is the same as the witness and exhibit list deadline. The trial -- the -- the third -- the week before trial is the response to any pretrial motions.
So if you filed your witness list on the 13th of September, that's past the deadline of the August 23rd, Mr. Miller.
3 The August 7, 2018 minutes read, in relevant part, "pretrial mot deadline 23-Aug-2018 witness/exhibit lists and response deadline 13-Sep-2018."
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THE COURT: Well the -- the issue that I have is, um, is sufficient notice to the State. So if the deadline for the witness list was -- it -- which -- which it was, was August 23rd, you don't meet that deadline, um, by filing on September 13th. Um, and I wouldn't, uh, I mean if -- if you had filed on August 23rd and you had said, "address unknown," um, and then you did find him subsequently, uh, I would be inclined to allow him to testify, uh, because that would have been sufficient notice to the State, um, I think. But filing a witness September 23rd, or excuse me, on September 13th when it was due August 23rd, I understand we're all busy people but, uh, that's two weeks after the deadline.
THE COURT: So, Mr. Miller, it's not just some rule or just some procedure, uh, you know, for –- for no purpose. And really the rule is to allow notice to the other side, in this case the State, to prepare. And by filing something on the 13th and then calling him today, I -- I just don't see that the State had proper notice and an ability to prepare.
So, uh, I am not going to allow his testimony. Uh, and I understand you're busy, but I'm busy, too, and the State's busy. We're -- we're all busy.
You were in front of the Court on September 11th, um, and at that time could have had the opportunity to let the Court know what the status was of your investigation and what your calendar looked like, and the Court could have entertained a motion to continue trial at that point. But and then to come here today for trial and say you're prepared to proceed, and then call somebody that is, uh, not previously disclosed, uh, Court not -- Court's not going to allow him.
(Emphasis added).
The State called three witnesses during its case-in-
chief, including Torres. Torres testified that he was in the
area to sell a tattoo gun to Lovelyn Yamamoto (Yamamoto). Torres
further testified that Shane Batalona (Batalona) accompanied
Yamamoto to Torres's vehicle and examined the tattoo gun.
Shortly thereafter, the encounter became violent and Torres was
struck by both Batalona and Macariola.
Macariola was the only witness in the defense case-in-
chief. He testified that he had acted in defense of Batalona and
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of himself, and that Torres was the initial aggressor. The
District Court found that Macariola struck Torres in the face and
that Macariola did not have a reasonable belief to act in self-
defense or in defense of another.
II. POINTS OF ERROR
Macariola asserts three points of error on appeal: (1)
the District Court's refusal to allow the Defense to introduce
complainant's prior acts, including a drug conviction and
convictions for charges involving violence and aggression,
prevented Macariola from presenting a complete defense; (2) the
District Court abused its discretion in precluding Macariola from
presenting the testimony of a percipient witness to the incident
based on an erroneous belief that trial counsel had missed the
deadline for filing his witness list; and (3) Macariola's
conviction must be reversed because the State failed to adduce
substantial evidence that any physical contact Macariola made
with the complainant was not in defense of others or in self-
defense.
III. APPLICABLE STANDARDS OF REVIEW
"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. The traditional abuse of
discretion standard should be applied in the case of those rules
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of evidence that require a 'judgment call' on the part of the
trial court." State v. Pond, 118 Hawai#i 452, 461, 193 P.3d 368,
377 (2008) (citing State v. St. Clair, 101 Hawai#i 280, 286, 67
P.3d 779, 785 (2003)) (bracket omitted).
Evidentiary rulings made pursuant to HRE Rule 404
require a "judgment call," and therefore we apply the abuse of
discretion standard. State v. Williams, 147 Hawai#i 606, 613,
465 P.3d 1053, 1060 (2020) (citing State v. Richie, 88 Hawai#i
19, 37, 960 P.2d 1227, 1245 (1998)). An abuse of discretion
occurs when the trial court "clearly exceeds the bounds of reason
or disregards rules or principles of law or practice to the
substantial detriment of a party litigant." Id. (citing Samson
v. Nahulu, 136 Hawai#i 415, 425, 363 P.3d 263, 273 (2015)).
"A trial court's determination that evidence is
'relevant' within the meaning of HRE Rule 401 [] is reviewed
under the right/wrong standard of review." St. Clair, 101
Hawai#i at 286, 67 P.3d at 785. HRE Rule 401 defines relevant
evidence as "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence."
We review the sufficiency of evidence on appeal as
follows: [E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not
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whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact .
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citation omitted).
"'Substantial evidence' as to every material element of
the offense charged is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion. And as trier of fact, the trial
judge is free to make all reasonable and rational inferences
under the facts in evidence, including circumstantial evidence."
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) (citation omitted).
IV. DISCUSSION
Macariola's main argument on appeal is that his
constitutional right to present a complete defense was violated.
The protections granted to an accused by article 1, section 14 of
the Hawai#i Constitution include "a meaningful opportunity to
present a complete defense." State v. Pulse, 83 Hawai#i 229,
246, 925 P.2d 797, 814 (1996) (citation omitted). The right to
present a complete defense includes the "constitutional right to
present any and all competent evidence to support a defense."
State v. David, 149 Hawai#i 469, 481, 494 P.3d 1202, 1214 (2021)
(citing State v. Abion, 148 Hawai#i 445, 448, 478 P.3d 270, 273
(2020)). The Hawai#i Supreme Court held in Abion: Where the accused asserts a defense sanctioned by law to justify or to excuse the criminal conduct charged, and there is some credible evidence to support it, the issue is one of
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fact that must be submitted to the jury, and it is reversible error for the court to reject evidence which, if admitted, would present an essential factual issue for the trier of fact.
Abion, 148 Hawai#i at 448, 478 P.3d at 273 (emphasis added)
(quotation marks omitted).
In David, the defendant-appellant was convicted of
assault in the first degree after he stabbed and killed his
cousin at a family gathering. 149 Hawai#i at 471, 494 P.3d at
1204. The trial court permitted the introduction of evidence
that the victim had been drinking and was aggressive that evening
as evidence of the defendant's self-defense. However, the trial
court also excluded evidence of the victim's .252 blood alcohol
concentration (BAC), absent expert testimony. Id. The supreme
court vacated the conviction and held that excluding the BAC
evidence violated the defendant's constitutional right to present
a complete defense, and that expert testimony was not required to
present the BAC evidence. Id. at 481, 494 P.3d at 1214. The
supreme court reasoned that the defendant's case "hinged on his
credibility" and that because his defense "depended on his
account of [the victim's] behavior before the fatal altercation
and, by extension, on his credibility, we hold that there is a
reasonable possibility that excluding the BAC evidence affected
the trial's outcome." Id. Thus, the defendant's due process
rights were violated because he was not permitted to "present any
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and all competent evidence tending to show that he acted in self-
defense." Id. at 482, 494 P.3d at 1215 (citing Abion, 148
Hawai#i at 448, 478 P.3d at 273)).
In Williams, the defendant-appellant was convicted of
attempted murder in the second degree. On appeal, he alleged
that the trial court erred in precluding admission of several
statements in the weeks leading up to the incident that supported
the defendant's self-defense claim. Williams, 147 Hawai#i at
607-08, 465 P.3d at 1054-55. The defendant attempted to
introduce evidence that the victim had "boasted" about the
following seven acts: (1) doing time for the crime of murder in
California; (2) that he did hard time in California; (3) that he
knew how to fight because of the time he spent in jail and that
he had to learn to fight to survive; (4) that he knew about gang-
bangers and gang-members; (5) that he had experience with
violence from spending time in jail; (6) that he "got away" with
murder by beating the charge – because someone else took credit
for it; and (7) that he did the crime but got off on a
technicality. Id. The trial court permitted the defendant only
to testify that "[victim] knows how to fight. He learned how to
fight in jail." Id. at 609, 465 P.3d at 1056. The supreme court
held that the trial court's "curtailment of the defendant's
testimony as to his state of mind at the time he committed the
offense bespeaks a misapprehension of the discretion available to
the court." Id. at 615, 465 P.3d at 1062. The supreme court
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reasoned that the trial court had "prevented [the defendant] from
offering his own version of facts relevant to his self-defense
claim" and thus "violated his constitutional right to present a
complete defense." Id. at 614, 465 P.3d at 1061.
A defendant's right to present evidence is not,
however, limitless and "may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial
process." Abion, 148 Hawai#i at 454, 478 P.3d at 279 (citing
State v. Kassebeer, 118 Hawai#i 493, 514, 193 P.3d 409, 430
(2008)).
In Kassebeer, the supreme court held that the trial
court's two evidentiary rulings did not violate the defendant-
appellant's constitutional right to present a complete defense.
Kassebeer, 118 Hawai#i at 514, 193 P.3d at 430. The trial court
permitted the prosecution to ask the police officer, who had
responded to a report of sexual assault and kidnapping, whether
"[w]hat she told you, did - did that jive with the injuries that
she had?" but prevented Kassebeer from asking the same police
officer, "[i]nsofar as the injuries, do you recall that [the
complainant] told you that the injuries that you saw were from a
prior incident?" Id. In upholding the trial court's ruling, the
supreme court reasoned that the defendant had "other potential
avenues of laying the required foundation as to the source of the
complainant's injuries, and he was not denied the opportunity to
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do so." Id. Accordingly, his constitutional rights to present
evidence and to confront witnesses were not violated. Id.
A. The Evidence re Acts Involving Drugs and Violence
Macariola contends that the District Court abused its
discretion in precluding cross-examination of Torres regarding
his "knowledge of drugs" and character for violence. Macariola
argues that Torres's convictions were relevant character evidence
on the issue of Torres's credibility, who was the first
aggressor, and to Macariola's state of mind, and thus the
exclusion of this evidence violated his constitutional right to
present a complete defense.
As to the first issue, Macariola attempted to cross-
examine Torres on his "knowledge of drugs" after Torres expressed
confusion as to why Macariola confronted him about drugs on the
night of the altercation. A. –- yeah. Um, he had walked in about I'd say halfway through, and to the passenger window, and asked my wife if –- if "that is JR," and then came around the car and then –-
Q. Okay, so –-
A. –- tried to confront me about –-
THE WITNESS: –- drugs, and it –- it's, like –-
Q. (BY MR. MILLER) Why –- what is that so amazing to you?
A. Because –- I mean for him to like just walk up and just start asking me if I'm there to sell drugs is –- kinna make –- I'm kind of dumbfounded. I don't know what to say to that. Like, its like --
Q. Well you –-
A. –- I don't know what even gives him that impression or why, you know, to just go and just start –-
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Q. You don't know –-
A. –- I mean it –-
Q. –- why he had that impression?
A. Yeah, I don't.
Q. . . . Okay.
So –- and my question is, uh, weren't you in the –- in the past, previously, involved in some drugs?
After the State's objection, Macariola rephrased the
question and instead asked whether Torres had "knowledge about
different kinds of illegal drugs." After the District Court
sustained the State's relevance objection, Macariola's attorney
stated, "Your Honor, he's saying he doesn't know why they were
bringing up this stuff about drugs, and I wanted to establish,
well, he's not a totally innocent person regarding knowledge of
drugs, that he knows about drugs. That's all." The District
Court then again sustained the State's relevance objection.
Because the District Court excluded the line of
questioning as irrelevant, we analyze under a right/wrong
standard. We also note that HRE Rule 607 states that, "[t]he
credibility of a witness may be attacked by any party, including
the party calling the witness." Torres's testimony that he "had
no idea" why Macariola would mention drugs opened the door for
defense counsel to challenge that assertion and test Torres's
credibility. Thus, the District Court erred in prohibiting this
cross-examination, which tended to impugn Torres's testimony that
he had no idea why someone might think he was selling drugs.
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Next, we turn to whether the District Court erred when
it declined to admit any evidence concerning Torres's past
convictions for crimes that would indicate a character of
aggressiveness and violence. We recognize that here, as in
David, Macariola's defense "hinged on his credibility" and the
believability of his testimony about Torres's violent behavior
and how it influenced Macariola's conduct. See David, 149
Hawai#i at 481, 494 P.3d at 1214 (citing State v. Lealoa, 126
Hawai#i 460, 470, 272 P.3d 1227, 1237 (2012) (recognizing that in
a self-defense case, the defendant's credibility is "at the crux"
of the case because the jury must decide "whether the defendant
did in fact subjectively believe the use of force was
necessary")).
However, as stated in Abion, a defendant's right to
present relevant evidence "is not without limitation and may, in
appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process." Abion, 148 Hawai#i at 454, 478
P.3d at 279. Laying the requisite evidentiary foundation is a
legitimate interest in the criminal trial process. See
Kassebeer, 118 Hawai#i at 430, 193 P.3d at 514; see also State v.
Maddox, 116 Hawai#i 445, 460, 173 P.3d 592, 607 (App. 2007)
(requiring that foundation be established before permitting the
introduction of character evidence under HRE Rule 404(a)(2)).
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Accordingly, our analysis turns on whether Macariola laid
sufficient foundation to admit character evidence under HRE Rule
404(a)(2).4
A party may introduce "specific instances of conduct
[under HRE Rule 405(b)] to prove character when character is an
essential element of, inter alia, a defense to the crime." State
v. DeLeon, 143 Hawai#i 208, 215, 426 P.3d 432, 439 (2018). When
there is a factual dispute as to who was the initial aggressor,
"a victim's pertinent character trait is an 'essential element'
to a claim of self-defense, and therefore, evidence of specific
instances of conduct concerning that character trait, such as the
victim's prior violent acts, may be admissible under HRE 405(b)."
Id. A factual dispute about who was the first aggressor arises
when there is some evidence to support such a finding. Id. at
215-18, 426 P.3d at 439-42. The trial court has "discretion to
determine to what extent, and in what manner, evidence" of a
victim's criminal record may be permitted. State v. Basque, 66
Haw. 510, 515, 666 P.2d 599, 603 (1983).
In DeLeon, the defendant argued that he acted in self-
defense when he shot and killed a person in a group that was
allegedly threatening him. In support of his defense, he
4 HRE Rule 404(a)(2), Character of victim, provides an exception to HRE Rule 404's general prohibition against admitting evidence of a person's character to show that the person acted in conformity with that trait. HRE Rule 404(a)(2) permits "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor."
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testified that he got out of his vehicle and heard someone behind
him say, "[t]here's that fucking Mexican." DeLeon, 143 Hawai#i
at 217, 426 P.3d at 441. He then turned and saw three to four
men, including Powell and Beaudoin, approaching him that he
recognized from an altercation earlier that night. Id. at 217-
18, 426 P.3d at 441-42. DeLeon then pointed his gun at Powell
and shot him while his hands were open and raised. Id. at 218,
426 P.3d at 442. At the completion of the defense case, DeLeon
sought to introduce evidence of Powell's and Beaudoin's prior
violent acts to support his position that Powell and Beaudoin had
been the first aggressors. Id. at 212, 426 P.3d at 436. The
trial court excluded the evidence and held that no factual
dispute existed because Beaudoin's conduct was remote in time,
place, and to the incident, and Powell's conduct was roughly one
hour before the confrontation that resulted in Powell's death.
Id. at 212, 426 P.2d at 436. The supreme court, viewing the
totality of the circumstances, concluded that a factual dispute
as to who was the first aggressor existed, and thus the trial
court erred in excluding evidence of two of the witness's prior
bad acts. Id. at 218-19, 426 P.3d at 442-43. The DeLeon court
held that a factual dispute existed because (1) DeLeon, by himself, faced Powell and his group, which consisted of three to four people, including Beaudoin; (2) someone from that group said, "[t]here's that fucking Mexican"; (3) Powell, and possibly two others from the group, which may have included Beaudoin, continued to approach after DeLeon fired warning shots into the air and ground and told them several times to stay back; [and] (4) as Powell continued to approach, Powell stated, "[w]hat, you
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think one gun is going to stop us all?" when he was within arm's length of DeLeon.
Id. at 218, 426 P.3d at 442.
In Maddox, the trial court granted the State's motion
in limine precluding Maddox from cross-examining the complaining
witness (Mota) on Mota's character for violence, as evidenced by
petitions for restraining orders and judgments of conviction for
violating two restraining orders in Oregon. 116 Hawai#i at 458,
173 P.3d at 605. After Mota testified, Maddox renewed his
request to cross-examine Mota about the bad acts alleged in the
restraining order petitions. Id. at 459, 173 P.3d at 606. The
trial court denied the request and noted that the evidence did
not raise a factual issue as to whether Mota had been the first
aggressor. Id. On appeal, this court held that the trial court
had not erred in excluding the character evidence. Id. at 460,
173 P.3d at 607. We also noted that the disputed character
evidence would have been admissible later in trial, after Maddox
had laid the requisite foundation. Id. Once Maddox testified in the defense case, there was ample evidence to support a finding that Mota was the first aggressor. . . . At that point in the trial, Maddox was clearly entitled to question Mota about the past acts of violence reflected in the Oregon court documents. Maddox, however, did not attempt or seek permission to question Mota about past acts of violence after Maddox had introduced evidence supporting a finding that Mota was the first aggressor. Thus, the circuit court was never called upon to rule on whether such questions were permissible after the required evidentiary foundation had been laid. Under these circumstances, we cannot say that the circuit court erred.
Id.
Here, as in Maddox, Macariola attempted to cross-
examine Torres about prior acts of violence without laying the 16 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
requisite foundation. Viewing the totality of the circumstances
at the time of the request, no factual issue had been raised as
to who was the first aggressor. Only Officer Ines and Torres had
testified when Macariola requested to cross-examine Torres on his
character for aggressiveness and violence. Neither witness's
testimony raised a factual issue as to Torres being the first
aggressor. Rather, Officer Ines's testimony regarding
Macariola's voluntary statement indicated that Macariola was the
initial aggressor. A. Yes. When I spoke with him [Macariola], he stated that, um, he was outside, having a few beers. That –-
THE WITNESS: Mr. Macariola was out on Opelo Road having some –- few beers. He saw a vehicle pull up, um, with a male driver, who was the victim, uh, and –- in this case, and was yelling out the window "who wanted to buy ice?" Uh, he repeated that again. Mr. Macariola then said, "You know what, get the F out of here. We don't –- we don't want that kind of stuff."
THE WITNESS: And, uh, then Mr. Macariola hit him [Torres] in the face with a closed fist.
On cross-examination of Officer Ines, Macariola's
questions did not raise the issue of self-defense or defense of
others. There was only one question that may have been trying to
get to the defense-of-others defense – with Batalona being the
other – and the response was insufficient to establish a factual
issue.
MR. MILLER: Q. Did Mr. Macariola tell you how Mr. Batalona was involved?
A. He –- he says that he was involved also.
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Q. Okay.
Did he tell you any more detail about how he was involved?
A. That I don't remember. I don't know.
Torres testified during the State's case-in-chief that
he had not initiated the altercation with Macariola. Torres then
testified consistently on cross-examination.
Q. Um, when you got out of the car to get your stuff back, did you, you know, how were you –- did you –- did you push Mr. Batalona or hit him or shove him in any way?
A. No.
Q. No.
A. He [Batalona] grabbed me.
Q. And when Mr. Macariola came over, did you try to swing at him?
Q. You didn't try to swing at him?
Q. Do you ever remember grabbing, uh, Mr. Batalona by the necklace around his neck?
A. No. I don't remember that.
After Torres's testimony, there was no factual question
raised as to who was the first aggressor. Thus, we conclude that
the District Court did not err in excluding the character
evidence at that time.
During the defense case-in-chief, Macariola testified
that he went towards the altercation to protect his uncle,
Batalona, then struck Torres in self-defense. Macariola did not,
however, subsequently seek permission to question Torres about
his character for violence after the requisite foundation had
been laid. Macariola had ample opportunity to do so during the
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defense case-in-chief, or during his cross-examination of Torres
after the State called Torres as a rebuttal witness. As in
Maddox, the District Court in this case was never called upon to
rule on whether such questions were permissible after the
required evidentiary foundation had been laid, and we cannot
conclude that the District Court erred.
B. Exclusion of Yim Testimony
discretion in precluding testimony of an eye witness to the
incident (Yim), based on allegedly late identification of the
witness, as well as rejecting Macariola's request for a recess or
brief continuance to allow the State to interview the witness.
The parties dispute which Hawai#i Rules of Penal
Procedure (HRPP) discovery rule applied in this case. Macariola
argues that HRPP Rule 16.1 applied because this was a misdemeanor
trial, and thus excluding Yim's testimony constituted an abuse of
discretion because he did not fail to meet his discovery
obligations. The State argues that the trial court was
exercising its discretion under HRPP Rule 16(d) and was
"effectively allowing discovery pursuant to HRPP Rule 16."
Generally, HRPP Rule 16 applies to felony cases. HRPP
Rule 16(a). In misdemeanor cases, "[u]pon a showing of
materiality and if the request is reasonable, the court in its
discretion may require disclosure as provided for in this Rule 16
in cases other than those in which the defendant is charged with
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a felony, but not in cases involving violations." HRPP Rule
16(d). HRPP Rule 16.1 applies to "non-felony criminal and
criminal traffic cases." HRPP Rule 16.1(a). Under HRPP Rule
16.1 "a request for discovery shall be made to the opposing side
in writing and shall list the specific materials being sought.
Unless otherwise ordered, the request shall not be filed with the
court." HRPP Rule 16.1(b).
There is no evidence in the record that there was a
showing of materiality that caused the District Court to exercise
its discretion to apply HRPP Rule 16 to the entire proceedings.
The record does, however, reflect that the District Court
exercised its discretion to set certain discovery deadlines for
the parties. MS. BAILEY: And then, Your Honor, may we set some motion deadlines and responses?
THE COURT: How much time do you need beforehand?
MS. BAILEY: I'm looking at maybe August 23rd for motions. And then responses due by the 13th of September a week prior.
THE COURT: Okay. So we'll go with those dates. And pretrial motions will be due on or before August 23rd. And responses to those motions shall be due September 13[th]. And witness lists and exhibit list shall also be due September 13[th].
We presume that the District Court's pretrial order,
and subsequent sanctioning for failure to abide by that order,
was issued pursuant to HRPP Rule 16. See State v. Inman, 121
Hawai#i 195, 198-99, 216 P.3d 121, 124-25 (App. 2009).
Accordingly, we conclude that the District Court exercised its
discretion to apply HRPP Rule 16 to witness and exhibit lists.
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Thus, Macariola arguably was required to disclose to
the prosecutor "[t]he names and last known addresses of persons
whom the defendant intends to call as witnesses, in the
presentation of the evidence in chief, together with their
relevant written or recorded statements[.]" HRPP Rule
16(c)(2)(i). On September 13, 2018, Macariola submitted his
witness list. The witness list included Yim, but stated that his
address was unknown. At the trial on September 20, 2018,
Macariola's counsel represented that he did not know where Yim
lived until "this past Sunday," which was September 16, 2018.
Sanctions under HRPP Rule 16 are governed by HRPP Rule
16(e)(9), which allows a court to order a party to "permit the
discovery, grant a continuance, or it may enter such other order
as it deems just under the circumstances." HRPP Rule
16(e)(9)(i).5 "A trial court's imposition of sanctions pursuant
to HRPP Rule 16 for a discovery violation is reviewed for abuse
of discretion." Inman, 121 Hawai#i at 199, 216 P.3d at 125
(citing State v. Ahlo, 79 Hawai#i 385, 398, 903 P.2d 690, 703
(App. 1995)). In Ahlo, this court recognized that [W]hile [discovery] sanctions are designed to accomplish the purpose of discovery[,] it is clear that the imposition of sanctions should not encroach on a fair trial. In particular, the exclusion of defense evidence in criminal cases as a means of sanction is a drastic measure for the right of a defendant to adduce evidence in his behalf is one of the fundamentals inherent in the due process guarantee of a fair trial.
5 HRPP Rule 16(e)(9)(ii) addresses willful violation of discovery rules by counsel; there is no evidence to suggest that section applies to this case.
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Ahlo, 79 Hawai#i at 399, 903 P.2d at 704 (emphasis added)
(brackets, citation, quotation marks, and ellipses omitted).
When determining an appropriate sanction, a trial court must
consider: "(1) whether the defendant was acting maliciously or
in bad faith; (2) the extent of the prejudice to the prosecution
caused by the violation; (3) whether the prejudice could have
been cured by measures less severe than excluding evidence; and
(4) any other relevant circumstances." Inman, 121 Hawai#i at
199, 216 P.3d at 125 (citing Ahlo, 79 Hawai#i at 400, 903 P.2d at
705)).
In Inman, the trial court excluded two defense
witnesses as a sanction for the defendant's failure to comply
with a discovery order and limited the testimony of a third
witness. Id. at 196, 216 P.3d at 122. Specifically, the
defendant failed to provide a witness's birth date by the
established deadline and failed to advise the State of the
defendant's whereabouts at the time of the alleged offense, as it
related to his alibi defense. Id. at 198, 216 P.3d at 124.
There, we held the trial court abused its discretion in
precluding the defense witness testimony "essentially based on
failure of the defense to provide the birth date for [the
witness]." Id. at 199, 216 P.3d at 125.
Applying those factors, here, there was no evidence the
defendant acted maliciously or in bad faith. The extent of the
prejudice to the prosecution was minimal and could have been
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remedied without excluding the defense witness. Macariola's
failure to provide contact information for Yim could have been
remedied by a brief recess or continuance.
The District Court erred in finding that Macariola's
witness list filing was late. On appeal, the parties agree that
witness lists were due on September 13, 2018. Under the
circumstances, we conclude that the District Court abused its
discretion when it disallowed a defense eyewitness based on a
mistaken belief about the court-imposed discovery deadlines and
rejected Macariola's request for a recess or brief continuance to
allow the State to interview the witness.
C. Sufficiency of the Evidence
"It is well-settled that, even where this court finds
trial error, challenges to the sufficiency of the evidence must
always be decided on appeal." State v. Davis, 133 Hawai#i 102,
116, 324 P.3d 912, 926 (2014) (citing Kalaola, 124 Hawai#i at 59,
237 P.3d at 1125). The Double Jeopardy Clause bars retrial of a
defendant where the evidence is insufficient to support a
conviction. State v. Kaulia, 128 Hawai#i 479, 496, 291 P.3d 377,
394 (2013) (citing State v. Silver, 125 Hawai#i 1, 9, 249 P.3d
1141, 1149 (2011)).
Here, the testimony presented by the State provided
substantial evidence to support the District Court's findings and
conclusions as to Macariola's conviction for Assault Third.
Thus, a new trial is permissible.
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V. CONCLUSION
For these reasons, the Distict Court's September 20,
2018 Judgment is vacated; this case is remanded for a new trial.
DATED: Honolulu, Hawai#i, December 17, 2021.
On the briefs: /s/ Lisa M. Ginoza Chief Judge Donald L. Wilkerson, for Defendant-Appellant. /s/ Katherine G. Leonard Associate Judge Leneigha S. Downs, Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka County of Hawai#i Associate Judge for Plaintiff-Appellee.