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advising that "a trial court should resolve a close question of admissibility in favor of the defendant"
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SCWC-15-0000329
06-18-2020
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. YOKO KATO, Petitioner/Defendant-Appellant.
Myron H. Takemoto, Honolulu, for petitioner Stephen K. Tsushima, Honolulu, for respondent
Myron H. Takemoto, Honolulu, for petitioner
Stephen K. Tsushima, Honolulu, for respondent
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
The circuit court in this case precluded the defendant from presenting third-party culpability evidence because it determined that the proffered evidence failed to establish a "legitimate tendency" that the third party committed the crime. In this opinion, we reexamine the "legitimate tendency" test in light of the Hawai‘i Rules of Evidence (HRE) and subsequent decisions of jurisdictions whose decisions were considered when this court adopted the test. We conclude from our review that admissibility of third-party culpability evidence is properly governed by HRE Rules 401 and 403, without having to also satisfy a legitimate tendency test. We additionally conclude that the circuit court erred by excluding the defendant from presenting third-party culpability evidence at trial, evidence that was fundamentally important to the defendant receiving a fair trial in this case. Inasmuch as the defendant's right to present her defense was prejudicially affected by the circuit court's error, the error was not harmless beyond a reasonable doubt. We also address other contentions raised by the defendant as certain of these issues may arise on remand.
Accordingly, we vacate the conviction in this case, and the case is remanded to the circuit court for further proceedings consistent with this opinion.
I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS
Yoko Kato was arrested in connection with a stabbing that occurred on October 25, 2013, in the Diamond Head area of Honolulu, on the island of O‘ahu. She was subsequently charged by complaint in the Circuit Court of the First Circuit (circuit court) with attempted murder in the second degree in violation of Hawai‘i Revised Statutes (HRS) §§ 705-500, 707-701.5, and 706-656. Kato pleaded not guilty to the charge and a jury trial was held.
HRS § 707-701.5 (1993) provides in pertinent part as follows: "(1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person."
The Honorable Karen S.S. Ahn presided over the proceedings in this case.
A. State's Case at Trial
1. Complaining Witness
The complaining witness (CW), a Japanese national, testified through a Japanese-English interpreter as follows.
In the fall of 2013, she was living in Hawai‘i to study English. During this time, she met and began a romantic relationship with David Miller, a Caucasian janitor at the Shinnyo-en Temple that she attended. Because she did not have a permanent residence, she moved in with Miller for about a month in August 2013, and Miller arranged for her to stay with his ex-girlfriend Yoko Kato, a Japanese national, from October 12 through 13, 2013. While staying with Kato, Kato spoke to the CW about her past relationship with Miller. After staying at Kato's house, the CW had no contact or very limited contact with Miller and broke up with him.
While in Hawai‘i, the CW used the LINE application (LINE app), an internet application frequently used by Japanese nationals, to communicate with friends and organize outings. To contact someone on the LINE app, users either put their LINE identifications (LINE ID) directly into another user's LINE app or users must know the LINE ID of the other user they want to contact. Although the CW never gave Kato her LINE ID, Kato contacted her on the LINE app to request that she return a key that belonged to Miller's bicycle.
Shortly after moving out of Kato's apartment, the CW received a LINE message from an Ai Akanishi asking her to meet and have drinks. The CW did not know Akanishi, who claimed to have gotten the CW's LINE ID from "other people." Despite feeling that the situation was odd, she agreed to have drinks with Akanishi and Akanishi's boyfriend because Akanishi said that she was a Japanese student studying English like the CW. The CW agreed to meet Akanishi for drinks at Akanishi's boyfriend's house on October 25, 2013, on Kaunaoa Street.
On that day, the CW biked to Kaunaoa Street to meet Akanishi and arrived at around 9:45 p.m. A man was sitting down on a bench when she arrived, and he directed her, in poor Japanese, to a dark corner where she could park her bicycle. The man was wearing a short sleeved shirt, pants, and a baseball hat, had brown colored arms and neck, and appeared to be Asian. When he asked her name, his Japanese did not sound good; according to the CW, it was "Japanese spoken by a nonnative speaker."
While the CW was walking her bike to the dark corner, the man stabbed her multiple times in the arm, back, and abdomen with a knife. She screamed and began running away with the man chasing her. The CW ran into the Diamondhead Coffee Bean and Tea Leaf shop, and the employees called the Honolulu Police Department (HPD). She was taken to the hospital, where she spoke to HPD Officer Gilbert Trevino in Japanese. The CW described the clothing that the assailant was wearing, and she told the officer the height of her attacker in centimeters, which he converted to 5’9".
In an interview with Detective (Det.) Nakama on October 27, 2013, she described the person who stabbed her as a male. The next day, she told Det. Nakama that the assailant could have been a woman, and that the voice was high for a male.
In describing her injuries, the CW stated that she could no longer use her arm fully and still had scars from the knife wounds and post-stabbing surgeries. The CW testified that she did not believe that Miller was the individual who stabbed her because he spoke good Japanese, he did not have a motive, and he did not fit the physical shape of the person who stabbed her. The CW also testified that Kato was not the person who stabbed her.
Dr. David Inouye, an expert in surgery and surgery critical care, testified that he operated on the CW's wounds, that they were caused by a knife, and that the wounds were life threatening.
2. Other Witnesses
Emiko Morie, a woman who lived on Kaunaoa Street, testified through a Japanese-English interpreter that she observed the CW arrive and begin speaking to an individual that Morie believed was a man. Morie stated that she saw the man chase after the CW and fall. When she went to investigate, Morie testified, she discovered a flip phone where the man had fallen. Morie explained that she opened the phone and saw that a call had recently been made to a contact named "David." She stated that she called that contact, and a man answered and offered to retrieve the phone within thirty minutes. Morie said that a middle-aged Japanese woman, whom she later identified as Kato, approached her twenty minutes later and asked for the phone, but she refused to give it to the woman. Eli Mosher, who was talking with his friend seated outside of his church when the incident occurred, testified that he saw the CW being chased by a man who fell down. He stated that the man was about 5’6" to 5’8" with medium build. Mosher testified that he also described the person as a male in a written statement that he gave to police on the evening of the incident and when he was interviewed by Detective Nakama two days later. Mosher also said that the person could "possibly" have been a woman, although he acknowledged that he was making that statement for the very first time at trial.
HPD Officer Jonathan Locey related that he responded to the scene and interviewed the CW. He explained that because the CW could not speak Japanese, he was only able to communicate with her through hand signals and English. The officer testified that, based on the CW's statements, the suspected assailant was a Caucasian male, wearing a white or gray T-shirt, jeans, and a black baseball cap. The CW never told him that the attacker was Asian, Officer Locey stated.
HPD Officer William Ellis testified that he was investigating the scene of the incident when he was given a flip phone by Morie, who told him that she found the phone in the general area of the crime scene. Officer Ellis said that he was then approached by a woman who identified herself as "Yuri Mochizuki" and claimed that she lost her phone. The woman was able to describe and unlock the phone, so he gave it to her, the officer stated. The woman did not explain to him how she lost the phone, Officer Ellis testified, and he was unaware that the phone was connected to the incident. After giving her the phone, she went into a gas station to use the restroom and did not return although she had been requested to do so, the officer stated.
Christopher Lam, a worker at that gas station, testified that Kato came in to use the bathroom around 11:00 p.m. He told Kato that they did not have a public bathroom and she left, Lam stated. Kato was wearing a red shirt and red shorts, Lam testified, and she did not have a knife or blood on her.
Yui Mochizuki, Kato's roommate at the time of the incident, testified through a Japanese-English interpreter that she saw Kato's ex-boyfriend Miller at the apartment drinking beer with Kato at about 7:30 p.m. on October 25, 2013. Mochizuki explained that she left for a party about that time and got home around 1:30 a.m.; Kato was home and told her that she had lost her phone that night. Kato said that she had found an envelope at the door earlier that night containing $60 and a note written in Japanese with directions on where to find her phone, Mochizuki testified. Kato stated that she had followed the instructions, which said to go to the Coffee Bean and Tea Leaf shop in the Diamond Head area at 9:00 p.m., Mochizuki testified, but when she got there, someone pushed her, causing her phone to fall. After being pushed, Kato said she heard a scream and saw police officers in the area, Mochizuki stated. Mochizuki testified that Kato told her that she believed Miller wrote the note, which contained the words "I love you," but Kato was unsure because the Japanese in the letter was better than Miller's abilities. Mochizuki explained that she had heard Miller speak Japanese poorly, using only words and not complete sentences. Mochizuki testified that she never saw Kato with a knife and did not see any injuries on her on October 25 or 26, 2013.
HPD Det. Roy Nakama, the officer assigned to investigate the case, testified that he reviewed all the reports associated with the case and that based on the information therein, he believed that the suspect was possibly male, slim build, wearing dark clothes, and approximately 5’5" to 5’9" in height. The detective related that, during the CW's interview, the CW, when describing the assailant, stated that "on second thought it could have been a female," "possibly a male or a female," and that Kato might have done this to her. The police thereafter searched Kato's apartment and found her flip phone and an iPod Touch but did not recover any weapons or clothing. When Kato was arrested, Det. Nakama related, she had a bandage over her right knee and bruises on her left knee. Det. Nakama also testified that he interviewed Miller, but that he did not consider Miller to be a suspect, did not check Miller for physical injuries, and did not request his cell phone. Kristen Hamamoto, a digital forensics examiner, testified that she found LINE app communications between the CW and Akanishi, and between the CW and Kato, on the CW's phone, but she could not determine what device the Akanishi messages came from. The examiner explained that she found photos of texts from "David" on Kato's iPhone. Hamamoto testified that she also found that Kato's iPod either sent or received communications with an email address connected to Akanishi, but she was unable to date those messages.
The CW testified that she had not received any messages from Akanishi since the incident. Reyn Yoshinaga, a special agent with Homeland Security, testified that no one with the name Ai Akanishi entered the U.S. starting from the late 1990s.
Richard Sakurai, Anthony Loui, and Hien Ung, who were employed at a security equipment store during October 2013, testified that a woman, whom Sakurai and Ung identified as Kato, came into the store in October and was interested in knives. Ung stated that Kato purchased a knife from the store; Sakurai and Loui testified that they could not confirm a purchase.
B. Defense's Case at Trial
Kato called David Miller as a witness. Although all of Miller's testimony was later stricken, as explained below, Miller testified that he met the CW in March or April 2013. Initially they were just friends but it developed into something more serious, Miller said. Miller testified that in August 2013, the CW had become his girlfriend and moved into his apartment. She had to move out on September 1, 2013, Miller explained, and their relationship lasted until about mid-October 2013. The defense asked Miller if he was aware the CW was dating other men while he was dating her; the State objected as to relevance and its objection was sustained. The State similarly objected to the defense's next question, asking Miller if he had seen the CW with other men, and again the objection was sustained on relevancy grounds. Defense counsel requested a bench conference to explain the relevance of his line of questioning.
In the bench conference, defense counsel explained that the defense was attempting to show that Kato did not have a motive to stab the CW whereas Miller did. Counsel argued that Miller wanted to marry the CW and thus was angry and upset with the CW for dating other men and leaving him, which resulted in his stabbing her. The State responded that Kato could not bring up evidence of Miller's motive under State v. Rabellizsa, 79 Hawai‘i 347, 903 P.2d 43 (1995). Counsel maintained that there was a sufficient nexus under Rabellizsa because Miller was angry and upset at the CW; the CW was saying that she loved Miller, missed him, and wanted to see him, and "then she just blows him off." And not only was Miller upset, counsel explained, but he went through the CW's phone, and he "saw these males’ names." The court asked defense counsel if Miller "said I'm going to kill [the CW]" and when counsel said that he had not, the court stated " Rabellizsa, no nexus."
Following the bench conference, the defense attempted to ask Miller if he had seen the CW with other men, prompting Miller to request a break and the court to excuse the jury and begin another bench conference. The court returned to the Rabellizsa issue. The court evaluated some of the evidence to determine if there was a nexus, noting that "nobody saw [Miller] near the scene," and "nobody says it was a Caucasian." Defense counsel responded that the CW had identified her assailant as a Caucasian to two different police officers. The court replied, "but there's testimony that it's an Asian person." The court then stated that Miller was 5’10" while testimony indicated that the person who assaulted the CW was 5’5" to 5’7". Defense counsel stated that Miller's build was similar to the person who stabbed the CW, and that the estimates of the witnesses varied from perception of height. The court also stated that Miller testified that he was not bothered now that the CW was going out with other men. Defense counsel again noted that Miller went through the CW's cell phone and saw numerous phone numbers of males and was unhappy about her relationships with other men. Additionally, counsel stated, on October 23, 2013, Miller told Kato that the CW was having sex with other men.
Having "heard the evidence," the court held that the defense "had to have some nexus between the other guy and the crime," and that the court didn't "see any here." The court then turned to Fifth Amendment issues with regard to Miller's testimony.
Prior to trial, Kato had filed a notice of intent (Kato's Motion in Limine #1) to introduce evidence that Miller had physically abused Kato in May 2013, that Miller had been arrested on June 24, 2013, for abuse of a family or household member based on a different incident with Kato, and that Miller had subsequently forced Kato to write a letter recanting her abuse allegations. Counsel explained that the defense would elicit testimony that in September 2013, Miller had told Kato that she ruined his life and that Miller had threatened to get revenge on her for having him arrested for the abuse offense. The defense's theory was that David Miller set Kato up and was the person who stabbed Kato or arranged it, defense counsel explained to the court.
Miller was subsequently prosecuted for harassment, but the case was dismissed without prejudice because of the prosecution's failure to secure a Japanese interpreter for Kato and for not providing the defense with a 911 tape relating to the offense.
During a pretrial Hawai‘i Rules of Evidence (HRE) Rule 104 hearing, Kato had called Miller to ask him questions regarding (1) the evidence proffered in her Motion in Limine #1, (2) questions relating to his relationships with Kato and the CW, (3) questions relating to his Japanese proficiency, and (4) questions relating to his motive to want to stab the CW. Before Miller testified, the defense argued that Miller should not be allowed to take the Fifth Amendment on those questions because, under State v. Kupihea, 80 Hawai‘i 307, 909 P.2d 1122 (1996), the chance of his prosecution for harassment, violations of a temporary restraining order (TRO), or the CW's stabbing was "slim to none." The court did not issue a ruling, and Miller was called to testify.
HRE Rule 104(a) (1993) provides, in relevant part:
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
A TRO had been issued against Miller, effective June 26, 2013, to December 25, 2013, that prohibited any contact between Miller and Kato, including texts, contact, and phone conversations. It was later amended to allow them to be at the temple at the same time.
Miller, with the assistance of court-appointed Fifth Amendment counsel, exercised his Fifth Amendment rights in response to defense counsel's questions as to multiple matters. The court ruled that Miller had properly asserted his Fifth Amendment privilege on questions regarding (1) June 24, 2013, the date of his arrest for abuse of family or household member; (2) any contact between himself and Kato from June 26, 2013, to December 23, 2013, as that could expose him to liability for violating the TRO; (3) and questions regarding his conversations with the CW that involved Kato. At this hearing, Miller answered questions relating to his feelings towards the CW before and after their relationship ended, his feelings about the CW dating other men, and the CW's two-day stay with Kato. Miller also testified that he carries a "quick release" knife with a four-inch blade for work.
Specifically, Miller testified that he fell in love with the CW and hoped to marry her, although he never communicated this to the CW. Miller also testified that the CW told him that she loved him and would see him soon, before she stopped contacting him. Miller explained that he was not angry at the CW for ending their relationship.
Miller said that he wasn't sure if the CW was seeing other men but that he never saw her with other men. Miller also explained that he was not upset about the CW dating men before him.
Miller stated that he told the CW not to tell Kato that he and the CW were in a relationship. Miller also explained that the CW told him that she never told Kato she was in a relationship with Miller.
But at trial, after Kato attempted to ask Miller if he had seen the CW with other men, Miller's court-appointed Fifth Amendment lawyer informed the court that counsel would be instructing Miller, for the first time, to exercise his Fifth Amendment rights to any questions that would "arguably give [Miller] a motive to assault [the CW]." The court then held another HRE Rule 104 hearing during a trial recess because of Miller's intention to exercise the Fifth Amendment to questions he had answered at the pretrial HRE Rule 104 hearing. Kato argued that Miller should be forced to testify because he had already answered these questions with counsel present and because, under Kupihea, the chance of Miller's prosecution for the stabbing of the CW was remote.
Miller's court-appointed counsel at the pretrial hearing and at trial was the Office of the Public Defender, although different attorneys appeared on his behalf at the two proceedings.
At the trial HRE Rule 104 hearing, the court overruled Kato's objections and allowed Miller to invoke the Fifth Amendment on (1) "motive related questions" because Kato was trying to blame Miller for the crime, (2) communications he had with Kato because "it's going to lead directly to [Miller] fixed [the stabbing] up, allegedly," and (3) communications with the CW after she moved out because it would "infer that he had communications with [the CW] up to the 24th" of October, which could furnish a link. The court further permitted Miller to exercise his Fifth Amendment rights on questions he had previously answered, including questions relating to his feelings towards the CW before and after their relationship ended, Miller's feelings about the CW dating other men, the CW's two-day stay with Kato, and whether he owned a knife. The court explained its ruling by noting that Kato was trying to blame Miller for the stabbing, and thus any questions about his motive could implicate him. The court did not rule on defense's contention that Miller had waived his Fifth Amendment privilege by answering those questions at the pretrial Rule 104 hearing with appointed counsel present, instead remarking, "when there's a change of lawyer, are you stuck with your old assertions of the Fifth, or are you not? I don't know."
In light of the court's ruling, defense counsel argued that much of the information that would be excluded by Miller asserting his Fifth Amendment privileges could not come out through Kato's testimony because it would be excluded as hearsay statements. Kato's right to a fair trial would be violated unless Miller was considered unavailable so that his statements could come in under HRE Rule 804, defense counsel maintained. The court reaffirmed its rulings on Miller's Fifth Amendment privileges but does not appear to have ruled on Kato's argument that eliciting the evidence through Kato would not be viable.
Kato originally informed the court that she would testify. The court, in rendering its ruling allowing Miller to exercise the Fifth Amendment, stated its assumption that Kato would be able to testify as to what Miller had told her.
After the court's rulings to essentially preclude all testimony from Miller related to the incident, his prior relations with Kato, and his relationship with the CW, the court convened the jury, and struck all of Miller's trial testimony with Kato's consent. Kato exercised her right to remain silent and did not testify; according to defense counsel, Kato made this decision because of the court rulings regarding Miller's exercise of his Fifth Amendment rights.
At the close of the State's case, Kato moved for a judgment of acquittal; that motion was denied.
C. Jury Instructions and Verdict
During the settling of jury instructions, the court ruled that, under Rabellizsa, Kato could not argue that Miller stabbed the CW, but Kato could argue that someone besides her was the person who stabbed the CW. The court explained that there was nothing tying Miller to the scene nor did Miller match the physical description of the assailant provided by witnesses. In her closing argument, Kato referenced the fact that the CW and witnesses identified a male suspect, but, complying with the court's ruling, Kato did not argue that it was Miller.
The court instructed the jury on the included offenses of attempted murder in the second degree, including reckless endangering in the second degree. The jury was not instructed on accomplice liability nor did the parties raise an accomplice liability theory in their closing arguments.
During the discussion on the defense motion for judgment of acquittal, the court asked if accomplice liability was "involved here." The State responded that "it could be" and defense counsel answered "I mean, theoretically. But even that is a stretch.... So either [Kato's] the stabber, or she's not. She's an accomplice, or not."
During jury deliberations, the jury asked the court if it could "consider whether someone else aided [Kato]?" In response, the court told the jury, "During this trial, you received all of the evidence which you may consider to decide this case. You must follow all of the court's instructions to you." The jury communicated with the court again, stating,
After deliberating yesterday afternoon and all morning, we are still hung almost 50/50. One major point of confusion is how we interpret the legalese of the charge itself on page 23 of our instruction [for attempted murder in the second degree]. Some of us feel that [Kato] is not guilty because there is reasonable doubt whether [Kato] actually held the knife and stabbed [the CW]. Others feel that there is proof beyond a reasonable doubt that [Kato] took actions to lead [the CW] to Kaunaoa St. where someone was waiting to stab [the CW].
Our question is, in layman's terms, does the charge include [Kato] intentionally conspiring to have [the CW] stabbed without actually being the stabber?
In response to the jury's second question, the court responded "No."
The jury found Kato guilty of reckless endangering in the second degree. Kato was sentenced to one year incarceration with credit for time served, with the jail sentence stayed pending appeal. Kato timely appealed from the circuit court's March 11, 2015 Judgment of Conviction and Sentence (judgment) to the Intermediate Court of Appeals (ICA).
HRS § 707-714(1)(a) (Supp. 2012) provides as follows: "A person commits the offense of reckless endangering in the second degree if the person ... [e]ngages in conduct that recklessly places another person in danger of death or serious bodily injury[.]"
II. ICA PROCEEDINGS
Kato raised the following four points of error on appeal: (1) the circuit court erred in instructing the jury on reckless endangering in the second degree as a lesser-included offense; (2) there was not substantial evidence for the jury to convict Kato for reckless endangering in the second degree; (3) the court abused its discretion in failing to compel Miller to testify over his assertion of his Fifth Amendment privileges; and (4) the court erred in precluding Kato from adducing evidence that Miller had a motive to commit the crime charged.
The State acknowledged in its answering brief that it failed to convince the jury beyond a reasonable doubt that Kato was the person who stabbed the CW. The State, while noting that the jury was not instructed on accomplice liability, asserted that it would have been improper to do so as the State did not present accomplice evidence. The State argued that a reckless endangering in the second degree verdict does not require Kato to have been an accomplice; it merely required the State to prove that Kato had placed the CW in danger of death or serious bodily injury. As to Miller's Fifth Amendment privileges, the State noted that it did not offer him immunity and therefore the risk of prosecution for violations of the TRO or the CW's stabbing was not remote under Kupihea. Finally, the State argued that Kato failed to present any evidence linking Miller to the stabbing of the CW and thus failed to show a legitimate tendency that Miller was the assailant.
The ICA, in its memorandum opinion, stated that the State pursued a theory that Kato was the person who stabbed the CW, but it determined that there was substantial evidence upon which the jury could have found Kato to be an accomplice. Thus, the ICA concluded that it was not error for the circuit court to instruct on reckless endangering in the second degree, and there was sufficient evidence to support Kato's conviction on this offense.
The ICA's memorandum opinion can be found at State v. Kato, No. CAAP-15-0000329, 436 P.3d 1220, 2019 WL 1253370 (App. Mar. 19, 2019) (mem.).
The ICA ruling on this issue states as follows:
In this case, there was substantial evidence upon which the jury could have concluded that Kato, pretending to be someone named "Ai Akanishi," used the LINE application to lure [the CW] to the Kauna‘oa Street address where someonewho may or may not have been Kato herself - was waiting there to stab her. Jury Communication No. 2 bears this out, as does the extremely short time - twelve minutes - between the Circuit Court answering the jury's question and the return of the verdict.
(Emphasis added.)
Turning to the circuit court's allowance of Miller's assertion of his Fifth Amendment privilege, the ICA noted that the privilege applies to testimony at any proceeding if it might tend to show the witness committed a crime. The ICA explained that Kato attempted to introduce evidence that would show that Miller violated a TRO, violation of which was still subject to prosecution at the time of the pretrial motions and trial, as well as evidence that could "furnish a link in the chain of evidence needed to prosecute him" for the CW's stabbing. Accordingly, the ICA held that the court did not abuse its discretion when it did not compel Miller to answer questions after he invoked his Fifth Amendment right against self-incrimination.
In evaluating whether the circuit court erred in precluding evidence of Miller's motive to attack the CW, the ICA stated that, in order to introduce evidence that a third person committed the crime, there must be a nexus between the third person and the commission of the crime, motive evidence alone would be irrelevant and collateral. (Citing Rabellizsa, 79 Hawai‘i at 349-50, 903 P.2d at 45-46 ). The ICA recited certain evidence proffered, namely that the CW described her attacker as a non-native speaker of Japanese and a Caucasian male with a height between 5’4" to 5’8" tall, and weighed the evidence implicating Kato and tending to show that Miller was not the stabber. The ICA noted that there was no evidence connecting Miller to the LINE app or to messages sent by "Ai Akanishi," nor was there evidence that Miller had access to Kato's phone. After evaluating the evidence, the ICA held that the evidence proffered did not have a legitimate tendency to show that Miller was the person who stabbed CW or that he framed Kato for the attack. Thus, the ICA held that the circuit court did not err in precluding Kato from eliciting evidence of Miller's alleged motive to murder the CW, the ICA held.
The ICA accordingly affirmed the judgment of the circuit court. Kato timely filed an application for writ of certiorari, which this court accepted.
III. STANDARDS OF REVIEW
A. Evidentiary Rulings
The standard employed when reviewing the admissibility of evidence varies with the particular evidentiary rule at issue. State v. West, 95 Hawai‘i 452, 456, 24 P.3d 648, 652 (2001) (citing Kealoha v. Cty. of Haw., 74 Haw. 308, 319, 844 P.2d 670, 676 (1993) ). When a rule is amenable to objective application such that it can result in only one correct answer in a given situation, the lower court's application of the rule is reviewed under the right/wrong standard. Id. The evaluation of whether evidence is "relevant" within the meaning of HRE Rule 401 (1993) falls into this category of determinations, and we are thus not required to give weight to the trial court's application of the rule. State v. St. Clair, 101 Hawai‘i 280, 286, 67 P.3d 779, 785 (2003).
B. Sufficiency of the Evidence
Appellate courts review the sufficiency of the evidence at trial for "substantial evidence." State v. Kalaola, 124 Hawai‘i 43, 49, 237 P.3d 1109, 1115 (2010). Substantial evidence in this context is defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction. State v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992). C. Fifth Amendment Privilege Against Self-Incrimination
"Whether a trial court should compel a witness to testify over the witness's assertion that his answer might tend to incriminate him or her is a matter within the sound exercise of its discretion, and is thus reviewed for an abuse of discretion." Kupihea, 80 Hawai‘i at 312, 909 P.2d at 1127 (citation omitted).
D. Jury Instructions
The propriety of jury instructions, or their omission, is a question of law reviewed de novo using the following standard: "[w]hether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Bovee, 139 Hawai‘i 530, 537, 394 P.3d 760, 767 (2017) (quoting State v. Frisbee, 114 Hawai‘i 76, 79, 156 P.3d 1182, 1185 (2007) ); Kobashigawa v. Silva, 129 Hawai‘i 313, 320, 300 P.3d 579, 586 (2013).
IV. DISCUSSION
A. The Circuit Court Erred in Precluding the Defense from Adducing Third-Party Culpability Evidence that Miller Was the Person Who Assaulted the CW.
Kato contends that there was sufficient evidence under Rabellizsa, to show a legitimate tendency that Miller was the person who committed the stabbing, and thus the court erred in not allowing her to elicit testimony about Miller's motive to assault the CW with a knife.
In Rabellizsa, this court considered as a matter of first impression the admissibility of "evidence of a third person's motive to commit the crime for which the defendant was charged." 79 Hawai‘i at 350, 903 P.2d at 46. The Rabellizsa court, citing a series of cases from other jurisdictions, noted that generally motive alone is not sufficient to establish relevance; rather, there must be a "nexus between the proffered evidence and the charged crime." Id. (quoting Winfield v. United States (Winfield I), 652 A.2d 608, 613 (D.C. 1994) (stating that evidence must "clearly link" a third party to the commission of the crime)).
The court in Rabellizsa quoted from People v. Green, which held that, to be admissible, a third party's motive to commit the crime "must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." Id. (quoting 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, 480 (1980) ). This court stated that the California Supreme Court "[f]ollowing Green," held in People v. Hall that "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." Id. (emphasis omitted) (quoting 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d 99, 104 (1986) ).
The Rabellizsa court additionally cited State v. Denny, wherein the Wisconsin Court of Appeals held that, for third-party culpability evidence to be admissible, "there must be a ‘legitimate tendency’ that the third person could have committed the crime." Id. (quoting 120 Wis.2d 614, 357 N.W.2d 12, 17 (Wis. Ct. App. 1984) (requiring a defendant to show motive, opportunity, and "some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances" for the evidence to be admissible)).
In light of the authority that it had reviewed, the Rabellizsa court adopted Denny’s "legitimate tendency" test, stating that it "comports with the relevancy test set forth in HRE Rule 401." Id. at 351, 903 P.2d at 47. Thus, while this court recognized the applicability of HRE Rule 401 to the admissibility of third-party culpability evidence, such evidence was additionally required to meet a "legitimate tendency" test. Id. Although the court in Rabellizsa did not specifically define the "legitimate tendency" test, our trial and appellate courts in applying the test have frequently required the defendant, when offering third-party culpability evidence, to meet varying standards, such as by showing "substantial evidence" or "direct evidence" that the third party is "directly connected," "clearly linked," or has a "nexus" to the commission of the charged offense." Here, the circuit court, as part of its ruling on the admissibility of the third-party culpability evidence, stated that, "But I don't know if that's a nexus. I mean nobody saw [Miller] near the scene" and that under " Rabellizsa, no nexus."
See, e.g., State v. Griffin, 126 Hawai‘i 40, 54, 266 P.3d 448, 462 (App. 2011) (quoting Rabellizsa as holding that "there must be a nexus between the proffered evidence and the charged crime" and that third-party motive "must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense"); State v. Peralto, 95 Hawai‘i 1, 3 n.1, 18 P.3d 203, 205 n.1 (2001) (holding there was no trial error relating to any alternative theory of the crime absent "evidence to directly connect [a third party] to the crime charged" that is not remote in time, place or circumstances (quoting Rabellizsa, 79 Hawai‘i at 350, 903 P.2d at 46 )); State v. Kato, No. CAAP-15-0000329, at 15-17 (quoting Rabellizsa’s recitation of the standard set forth in Green ).
In the 25 years since Rabellizsa was decided, almost all of the decisions underlying our holding in Rabellizsa have been clarified or modified by subsequent caselaw in those jurisdictions. It is therefore appropriate to reassess our continuing application of the "legitimate tendency" test.
Initially, it is noted that the Rabellizsa court, in the beginning of its analysis, set forth the following: "As stated in People v. Green" and then quoted its standard for the admission of third-party culpability evidence. Rabellizsa, 79 Hawai'i at 350, 903 P.2d at 46 (quoting Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d at 480 ). Immediately after the quotation, the Rabellizsa court stated: "Following Green, the California Supreme Court held that" and then quoted from People v. Hall. Id. (quoting Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d at 104 ). However, the Hall court had overruled the Green standard and held that it was "not to be followed." Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d at 104 n.3. The Rabellizsa court did not reference the overruling of Green, and although it did not adopt the test set forth in Green, the passage quoted in the Rabellizsa decision has been followed or quoted in subsequent Hawai‘i cases that have cited Rabellizsa. Further, the California Supreme Court in Hall, in articulating a requirement that a defendant present direct or circumstantial evidence linking the third person to the commission of the crime, stressed that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352)." Id., 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d at 104 (emphasis added).
The quoted passage states as follows:
It is settled ... that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense.... The rule is designed to place reasonable limits on the trial of collateral issues ... and to avoid undue prejudice to the People from unsupported jury speculation as to the guilt of other suspects....
Rabellizsa, 79 Hawai‘i at 350, 903 P.2d at 46 (emphasis added) (alterations in original) (quoting Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d at 480 ). The underlined clause was applied, for example, by the ICA in State v. Griffin and nearly quoted in full by the ICA in this case. See supra note 19.
California Evidence Code (Cal. Evid. Code) § 350 (1967) provides that "No evidence is admissible except relevant evidence."
Cal. Evid. Code § 210 (1967) states that " ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
Cal. Evid. Code § 352 (1967) provides as follows: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Rabellizsa also relied on Winfield I to establish that there "must be a nexus between the proffered evidence and the charged crime." Rabellizsa, 79 Hawai‘i at 350, 903 P.2d at 46 (internal quotations omitted) (quoting Winfield I, 652 A.2d at 613 ). But upon rehearing en banc in the same case, the D.C. Court of Appeals made clear that the test for relevance for third-party culpability evidence is the same test as for any other crime, noting that it had "explicitly tied the relevance standard to the usual meaning of that concept." Winfield v. United States (Winfield II), 676 A.2d 1, 4 (D.C. 1996). Further, the court in Winfield II concluded "that the phrase ‘clearly linked’ is unhelpful and should be discarded from our lexicon of terms governing the admissibility of third-party perpetrator evidence." Id. at 3. The court explained that "[a] requirement that evidence ‘tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense’ sufficiently accommodates" the concern about distracting the jury from the issue of the defendant's guilt. Id. at 5 (first emphasis added) (citations omitted).
The court in Winfield II noted that a trial judge could exclude evidence of third-party motivation "unattended by proof that the party had the practical opportunity to commit the crime, including at least inferential knowledge of the victim's whereabouts." Id. However, the court explained that a defendant did not need to place the third-party at or near the murder scene at the relevant time given the "combined force of the proffered circumstances." Id. at 6 ; accord Johnson v. United States, 136 A.3d 74, 80 (D.C. 2016) (holding that "practical opportunity" in the third-party culpability context did not require proof actually placing the third party at or near the crime scene). The court also cautioned that "the trial court must resolve close questions of admissibility in [third-party culpability cases] in favor of inclusion, not exclusion," because "[u]nduly restricting admission of third-party perpetrator evidence would raise concerns of unequal treatment." Winfield II, 676 A.2d at 6-7 ; accord Turner v. United States, 116 A.3d 894, 917 (D.C. 2015) ("[C]lose questions of admissibility should be resolved in favor of inclusion, not exclusion.").
Justice Nakayama's dissent (dissent) states that the Winfield II court reaffirmed the holding of Beale v. United States, 465 A.2d 796, 803 (D.C. 1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984), as it relates to third party culpability evidence. Dissent at 147 Hawai'i at 509 n.26, 465 P.3d at 956 n.26. However, the Winfield II court specifically stated, "To the extent our decisions in Brown [v. United States, 409 A.2d 1093 (D.C. 1979) ], Beale, and later cases, e.g., Watson v. United States, 612 A.2d 179, 182 (D.C. 1992), impose a more exacting standard of relevance [than FRE 401 ], we disavow them." Winfield II, 676 A.2d at 5.
The "legitimate tendency" analysis applied by the Wisconsin Supreme Court in Denny has also been revisited by that court because "it does not provide complete clarity as to the meaning and contours of two of its prongs." State v. Wilson, 362 Wis.2d 193, 864 N.W.2d 52, 64 (2015). While the Wilson court reaffirmed the use of the Denny test in evaluating the admissibility of third-party culpability evidence, it also concluded that the "ambiguity" in the three prongs of the "legitimate tendency" test is "understandable in light of the multitude of fact situations in which the Denny test may be employed." Id. In addition to the Wilson court's clarifications to the "legitimate tendency" test, the Wisconsin Supreme Court has also curtailed its application in other contexts:
The Denny "legitimate tendency" test requires third-party culpability evidence to show three prongs: (1) motive, (2) opportunity, and (3) a direct connection to the crime. Wilson, 864 N.W.2d at 64-67, 362 Wis.2d 193.
If we were to apply Denny’s legitimate tendency test to unknown, third-party evidence, the bright line test established in Denny would be rendered meaningless.... [W]e hold that the test is not applicable to the introduction of allegedly similar crime evidence that is committed by an unknown third party.
State v. Scheidell, 227 Wis.2d 285, 595 N.W.2d 661, 668 (1999) (determining that the standard for admissibility of similar crime evidence would be governed by other crimes, wrongs, or acts evidence). The Scheidell court opined that a defendant simply could not establish a plausible motive for an unknown defendant and thus would face "an insurmountable barrier to admissibility." Id., 227 Wis.2d 285, 595 N.W.2d at 668. The Wisconsin Supreme Court further determined that the "legitimate tendency" test would also not apply to "frame-up evidence," i.e., evidence that the defendant was being framed for the crime. State v. Richardson, 210 Wis.2d 694, 563 N.W.2d 899, 903 (1997). Finally, even prior to our holding in Rabellizsa, the Wisconsin Supreme Court had determined that proffered third-party culpability evidence "must connect that person to the crime, either directly or inferentially." Michael R.B. v. State, 175 Wis.2d 713, 499 N.W.2d 641, 646 (1993) (emphasis added).
The dissent asserts that Richardson would not apply here because Kato was able to introduce, through Mochizuki's testimony, evidence of the note she argued Miller used to frame her. Dissent at 147 Hawai'i at 510 n.27, 465 P.3d at 957 n.27. Kato's defense was that Miller committed the crime and framed her by luring her to the crime scene by the note left at her door; however the circuit court precluded her from arguing this defense to the jury. The dissent also argues that this opinion does not consider language from Michael R.B. that distinguishes "inferential" from "speculative connection." Dissent at 147 Hawai'i at 510 n.27, 465 P.3d at 957 n.27. On the contrary, we simply note that Michael R.B. does not require a defendant to show a direct connection, but rather allows the defendant to present third-party culpability evidence that inferentially connects the third party to the crime.
The Hawai‘i Rules of Evidence "govern proceedings in the courts of the State of Hawaii." HRE Rule 101 (1993). We have explained that "the basic precondition for admissibility of all evidence is that it is relevant as that term is defined in HRE Rule 401." Medeiros v. Choy, 142 Hawai‘i 233, 245, 418 P.3d 574, 586 (2018) (quotations, alterations, and emphasis omitted) (citing Commentary to HRE Rule 402 (1980)). 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." In Rabellizsa, this court stated that "we are persuaded that the ‘legitimate tendency’ test comports with the relevancy test set forth in HRE Rule 401." 79 Hawai‘i at 351, 903 P.2d at 47. However, requiring a defendant to satisfy a "legitimate tendency" test to admit third-party culpability evidence exceeds the "any tendency" threshold of HRE Rule 401, and thus the test is not fully consistent with the Hawai‘i Rules of Evidence.
Accordingly, we hold that the threshold for admissibility of third-party culpability evidence should be understood as applying the same relevancy test that is applied for all other evidence, whether it is offered by the State or by the defendant. HRE Rule 401 ; accord Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d at 104 ("[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [ ] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [ ]."); Winfield II, 676 A.2d at 4 (noting that it had "explicitly tied the relevance standard to the usual meaning of that concept" for third-party culpability evidence); Gray v. Commonwealth, 480 S.W.3d 253, 267 (Ky. 2016) ("At its heart, the critical question for [a third-party culpability theory of defense] is one of relevance: whether the defendant's proffered evidence has any tendency to make the existence of any consequential fact more or less probable. And the best tool for assessing the admissibility of [third-party culpability] evidence is the Kentucky Rules of Evidence." (footnote omitted)); State v. Gibson, 202 Ariz. 321, 44 P.3d 1001, 1004 (2002) (en banc) (" Rules 401, 402, and 403, Arizona Rules of Evidence, set forth the proper test for determining the admissibility of third-party culpability evidence."); People v. Primo, 96 N.Y.2d 351, 728 N.Y.S.2d 735, 753 N.E.2d 164, 168 (2001) (" ‘Clear link’ and similar coinages, however, may be easily misread as suggesting that evidence of third-party culpability occupies a special or exotic category of proof. The better approach, we hold, is to review the admissibility of third-party culpability evidence under the general balancing analysis that governs the admissibility of all evidence."); Tibbs v. State, 59 N.E.3d 1005, 1011 (Ind. Ct. App. 2016) ("Evidence which tends to show that someone else committed the crime makes it less probable that the defendant committed the crime and is therefore relevant under [Evidence] Rule 401" (alteration in original)).
Thus, when a defendant seeks to introduce third-party culpability evidence, the defendant must initially clear no higher hurdle than that set by HRE Rule 401. The lack of a "direct" link does not mean that the evidence is not relevant under HRE Rules 401. A defendant need not place the third party at or near the scene of the crime; it is sufficient for relevancy considerations that the defendant has provided direct or circumstantial evidence tending to show that the third person committed the crime. See HRE Rule 401. Further, we agree with the Washington D.C. Court of Appeals that a trial court should resolve a close question of admissibility in favor of the defendant. Winfield II, 676 A.2d at 6-7.
To the extent that Rabellizsa and any other decision of this court or the ICA have held that defendants must show that the third-party is "directly connected to the commission of the charged offense" or that the third party has a "nexus" or "direct link" to the offense, such tests are superseded by this opinion. See Rabellizsa, 79 Hawai‘i at 350-51, 903 P.2d at 46-47 ; Peralto, 95 Hawai‘i at 2 n.1, 18 P.3d at 204 n.1. Likewise, we reject the formulation set forth in Griffin, 126 Hawai‘i at 54, 266 P.3d at 462, that evidence of third-party motive "must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense," as inconsistent with HRE Rule 401.
In this case, significant evidence was presented that had a tendency to show that Miller was the person who committed the offense against the CW. Three different witnesses, the CW, Morie, and Mosher testified that they saw a male either stab or chase the CW. Officer Locey believed, based on the CW's statements in the coffee shop, that he was looking for a Caucasian male. At trial, the CW explained that her assailant spoke poor Japanese. Kato proffered evidence that Miller was a Caucasian male, a non-native speaker of Japanese, and close in height to the person who did the stabbing as described by the CW. The CW was stabbed with a knife; Kato showed that Miller carried a "quick release" knife for work, which indicates his access to and familiarity with knives. Through Mochizuki's testimony, Kato showed that Miller was together with Kato immediately before the offense. Also through Mochizuki, Kato established her suspicions that Miller arranged to have her near the crime scene through the note she believed he had written. From Morie's testimony it can be inferred that Miller was likely the man called shortly after the CW was stabbed and that when he told Morie that he would retrieve the phone, Kato arrived instead. This gives rise to a strong inference that Miller was in direct contact with Kato shortly after the CW was stabbed.
Additionally, based on Miller's testimony at the pretrial Rule 104 hearing, Kato showed that Miller had previously dated the CW, wanted to marry her, and had not wanted to end his relationship with the CW. Further, the defense proffered that Kato's testimony would show Miller had gone through the CW's phone and found text messages to other men and told Kato about this on October 23, 2013, that he informed Kato the CW was having sex with other men, and that he was "angry and upset at [the CW]." Miller's testimony and the defense's proffer underscored Miller's anger toward CW and provided a motive for him to want to physically assault the CW. Also, at the pretrial HRE Rule 104 hearing, defense counsel stated that Kato was prepared to testify that she believed Miller was setting her up in revenge for ruining his life by having him arrested for physically assaulting her.
The proffered evidence had a tendency, either directly or circumstantially, to implicate Miller as the person who stabbed the CW. In fact, the evidence at trial alone so strongly indicated that Miller was the perpetrator of the stabbing that this course of events is manifested in the jury communications to the court, acknowledged by the State in its answering brief, recognized by the ICA in its memorandum opinion, and reflected in the jury's verdict. Applying HRE Rule 401, there was ample evidence that had a tendency to show that Miller was the person who assaulted the CW, which indisputably was a fact of consequence to the determination of the action. Further, the evidence adduced also readily satisfied the "legitimacy tendency" test applied by the circuit court and was improperly excluded on this basis.
The evidence also allows an inference that Kato and Miller were working in tandem, with Miller committing the stabbing and Kato aiding Miller in committing the offense.
As stated, the jury specifically asked the court whether it could "consider whether someone else aided [Kato]," and they were told in response to follow the court's instructions. The jury next informed the court that "there is reasonable doubt whether [Kato] actually held the knife and stabbed [the CW]" and that "others feel that there is proof beyond a reasonable doubt that [Kato] took actions to lead [the CW] to Kaunaoa St. where someone was waiting to stab [the CW]." The jury then asked "does the charge include [Kato] intentionally conspiring to have [the CW] stabbed without actually being the stabber?" The court responded "no" to the jury's second question.
Also, as noted, the State acknowledged in its answering brief that it had "failed to prove beyond a reasonable doubt that [Kato] was the stabber and inflicted bodily injury upon [the CW]." Likewise, the ICA noted that someone other than Kato might have been the CW's assailant.
The dissent cites other evidence in the record that, in its view, refutes the relevancy of the third-party culpability evidence: for example, Miller said that he was not angry when the CW stopped contacting him, he never spoke to her about marriage, and he did not find out that the CW was seeing other men during or after their relationship. Dissent at 147 Hawai'i at 512 n.33, 465 P.3d at 959 n.33. But it is not the trial court's responsibility in determining the relevancy of evidence to weigh conflicting evidence, whether such evidence is in the form of testimony or an offer of proof. Additionally, the dissent concludes that "Miller, at 5’10", is much taller than the suspect." Dissent at 147 Hawai'i at 511–12, 465 P.3d at 958–59. However, the CW on the night of the incident told Officer Trevino, who was Japanese speaking, the height of her attacker in centimeters, which the officer converted to 5’9". Further, Mosher testified that the suspect was 5’6" to 5’8". Again, as further discussed in Part IV.B, infra, it is not the function of the trial court to resolve such factual disputes in determining the admissibility of third-party culpability evidence.
Once a defendant has cleared the threshold of HRE Rule 401, the court must still evaluate whether the proffered evidence is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." HRE Rule 403 (1993).
In this case, the probative value of the proffered evidence was indisputably not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time. See HRE Rule 403. The excluded evidence was of fundamental importance to the jury in its determination of the charge in this case and deprived Kato of a fair trial. The circuit court erred in precluding Kato from introducing third-party culpability evidence and in foreclosing defense counsel from arguing in closing argument that Miller assaulted the CW or framed Kato for the attack. The error prejudicially affected Kato's right to present her defense and to a fair trial, and it was clearly not harmless beyond a reasonable doubt. See State v. DeLeon, 143 Hawai‘i 208, 218-19, 426 P.3d 432, 442-43 (2018) (holding trial court's exclusion of specific instances of victims’ prior violent acts when there was actual dispute as to who was the first aggressor was not harmless error).
The dissent misapprehends the holding of this opinion, contending that our decision would allow "third-party motive evidence alone" to establish relevancy. Dissent at 147 Hawai'i at 500, 508–09, 511, 465 P.3d at 947, 955–56, 958. Instead, our opinion applies HRE Rule 401 ’s relevancy standard to proffered third-party culpability evidence in the same manner as that rule applies to all other evidence. It rejects the higher burden adopted in Rabellizsa, which is not consistent with the Hawai‘i Rules of Evidence. Evaluating the admissibility of third-party culpability evidence under HRE Rules 401 and 403 is not a "flimsy standard," as characterized by the dissent, dissent at 147 Hawai'i at 511, 465 P.3d at 958, as emphatically demonstrated by HRE Rules 401 and 403 ’s uniform applicability to all other forms of evidence and upon which our courts rely upon to provide fair and efficient trials. Finally, the dissent maintains that it is disingenuous for this opinion to not cite other jurisdictions that have held third-party motive is relevant only when there is additional evidence to connect the third person to the crime. Dissent at 147 Hawai'i at 508–09, 465 P.3d at 955–56. As stated, we do not hold that evidence of a third party's motive on its own will ipso facto allow admissibility of such evidence, instead HRE Rule 401 and Rule 403 govern.
B. The Circuit Court and the ICA Improperly Weighed the Third-Party Culpability Evidence Proffered by Kato.
Both the circuit court and the ICA, in reaching the erroneous conclusion to exclude third-party culpability evidence, improperly weighed the evidence offered by the defense to support its admission. During pre-trial hearings and at trial, Kato proffered evidence that Miller was a Caucasian male, a non-native speaker of Japanese, and was 5’10". Kato also elicited testimony from witnesses that the CW's assailant was a Caucasian male, a non-native speaker of Japanese, and around 5’7" to 5’9" in height. In explaining its ruling to deny the admission of the third-party culpability evidence, the circuit court stated that no one saw Miller at the scene, there was testimony that the assailant was Asian while Miller is Caucasian, Miller was not bothered by seeing the CW with other men, and Miller was around 5’10" tall. Similarly, in affirming the circuit court's ruling that Kato's proffered evidence did not show that Miller committed the crime, the ICA stated that the CW would have recognized Miller's voice if he was the assailant, Miller was not connected to the LINE app, no evidence showed that Miller had possession of Kato's phone, and Kato gave an inconsistent story to her roommate about losing her phone.
In Holmes v. South Carolina, the United States Supreme Court considered an evidentiary rule adopted in South Carolina caselaw that excluded third-party culpability evidence "where there is strong evidence of [a defendant's] guilt, especially where there is strong forensic evidence." 547 U.S. 319, 329, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (alteration in original). The Supreme Court noted that, under South Carolina's rule, "if the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value[.]" Id. The Court observed that the logic of South Carolina's rule required evaluating the State's evidence, which cannot be done without making the type of factual findings of credibility and reliability of the evidence, traditionally reserved for the trier of fact. Id. at 330, 126 S.Ct. 1727.
Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case.
Id. Without considering challenges to the reliability of the State's evidence, the Supreme Court held that "no logical conclusion" could be reached regarding the strength of the defense's evidence, nor could the State's evidence be accurately assessed, especially when the State's evidence had not been conceded. Id. at 331, 126 S.Ct. 1727. The Court hypothesized that an inverse rule, i.e., one requiring the State to show that its evidence against the defendant is not countered by evidence showing that the defendant is not guilty, would be equally illogical. Id. at 330, 126 S.Ct. 1727.
The Holmes court concluded that basing the admissibility of a defendant's third-party culpability evidence solely on the strength of the State's evidence is "arbitrary," and does not "rationally serve" the goal of third-party culpability rules. Id. at 330-31, 126 S.Ct. 1727. Thus, the Supreme Court held that South Carolina's rule violated a defendant's right in a criminal case to have a "meaningful opportunity to present a complete defense." Id. at 331, 126 S.Ct. 1727.
The very concern raised in Holmes, namely the ability of a defendant to introduce third-party culpability evidence on its own merit, was present in this case. Here, the circuit court and the ICA, when evaluating whether Kato's proffered evidence and the evidence adduced during trial had a "legitimate tendency" to show that Miller was the person who assaulted the CW, both incorrectly weighed and relied on evidence tending to show that Miller was not the assailant.
The circuit court credited the State's evidence showing that the assailant was female, Asian, and shorter than Miller. In so crediting the State's evidence, the circuit court necessarily determined that Kato's evidence showing that the assailant was male, white, around the same height as Miller, and spoke poor Japanese and was a nonnative speaker of Japanese was not credible. The ICA similarly evaluated the State's evidence, crediting Miller's testimony that he had not used the LINE app and determining that Miller was not the CW's assailant because the CW would have recognized him. In so concluding, the ICA necessarily gave no weight to Kato's proffered evidence that Miller had access to her phone and thus her LINE app, ignored the CW's testimony that Kato was not the individual who stabbed her and that the assailant was not a native Japanese speaker, and rejected all the evidence from witnesses whose description of the assailant did not match Kato. Because much of the State's evidence was not conceded and by selectively crediting evidence, the circuit court and the ICA made determinations that should have been reserved to the jury for its consideration. Holmes, 547 U.S. at 330, 126 S.Ct. 1727 ; see also State v. Aplaca, 96 Hawai‘i 17, 25, 25 P.3d 792, 800 (2001) (holding that the circuit court erred by not submitting the question of the victim's age and the defendant's knowledge of the victim's age to the jury); State v. Tamura, 63 Haw. 636, 637-38, 633 P.2d 1115, 1117 (1981) (per curiam) ("The jury, as the trier of fact, is the sole judge of the credibility of witnesses or the weight of the evidence.").
The circuit court also credited Miller's testimony that he was not upset at the CW despite (1) Miller's testimony that he had wanted to marry the CW and that she just stopped contacting him without telling him that they were officially breaking up, and (2) proffered defense evidence that Miller had found text messages to other men on the CW's phone, Miller knew she was having sex with other men, and Miller was upset and angry at the CW.
When a court excludes a defendant's third-party culpability evidence based solely on the weight of the State's evidence tending to show that there was not a third-party perpetrator, its decision arbitrarily excludes such evidence and violates a defendant's right to have a "meaningful opportunity to present a complete defense." Holmes, 547 U.S. at 331, 126 S.Ct. 1727. Because the circuit court and the ICA impermissibly rejected Kato's proffered evidence based on the State's contested evidence that Miller did not match the height, race, sex, and Japanese fluency of the assailant, each court erred in the manner that it evaluated the admissibility of the third-party culpability evidence. The circuit court's error in excluding the evidence prejudicially affected Kato's right to a fair trial and was not harmless beyond a reasonable doubt. See State v. Pulse, 83 Hawai‘i 229, 248, 925 P.2d 797, 816 (1996) (holding that the exclusion of competent testimony that infringed upon a constitutional right of the accused was presumptively prejudicial and was not harmless error).
The dissent argues that the circuit court and the ICA did not selectively credit the State's evidence and that this opinion relies on defense counsel's offer of proof instead of evidence in the record. Dissent at 147 Hawai'i at 512 n.34, 465 P.3d at 959 n.34. The evidence was not in the evidentiary trial record because the circuit court excluded it after improperly weighing the State's evidence against the defense's proffer. The requisite record for admission of the evidence was established in accordance with HRE Rule 103(a)(2) (Supp. 2012), which provides as follows: "In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Kato's counsel stated to the circuit court the underlying bases for the admissibility of the third-party culpability evidence.
C. The Circuit Court Utilized the Proper Standard and Did Not Abuse Its Discretion in Evaluating Miller's Invocations of His Fifth Amendment Privilege.
Article I, section 10 of the Hawai‘i Constitution, which is virtually identical to the Fifth Amendment to the United States Constitution, provides in pertinent part that "no person shall ... be compelled in any criminal case to be a witness against oneself" (Fifth Amendment privilege). Haw. Const. art. I, § 10. The Fifth Amendment privilege applies to any testimony an individual gives, whether at the person's own criminal proceedings or at the proceeding of another. Kupihea, 80 Hawai‘i at 313, 909 P.2d at 1128.
The Fifth Amendment to the United States Constitution provides in relevant part, "No person shall ... be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V.
In evaluating the extent of a witness's Fifth Amendment privilege, this court has stated that the privilege does not protect against "remote possibilities [of future prosecution] out of the ordinary course of law" but is instead "confined to instances where the witness has reasonable cause to apprehend danger from a direct answer." Kupihea, 80 Hawai‘i at 313, 909 P.2d at 1128 (alteration in original) (first quoting Territory of Hawaii v. Lanier, 40 Haw. 65, 72 (Haw. Terr. 1953) ; and then quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) ). The privilege against self-incrimination "extends not only to answers that would in themselves support a conviction, but to those that would furnish a link in the chain of evidence needed to prosecute." Id. at 313, 909 P.2d at 1128 (quoting Lanier, 40 Haw. at 72 ).
Kato argues that the circuit court incorrectly used a "possibility of prosecution standard" in assessing Miller's invocation of the privilege instead of the "reasonable cause to apprehend danger from a direct answer" standard. Kato also contends that there was no indication that the State would charge Miller for the CW's stabbing or prosecute Miller for the abuse charge or any TRO violations, and thus he should not have been permitted to exercise his Fifth Amendment rights.
Although we resolve this case on other grounds, we address this issue in light of the possibility that it may arise again on retrial.
During the HRE Rule 104 hearing at trial, the circuit court allowed Miller to exercise his Fifth Amendment privilege on questions regarding his previous relationship with Kato and his communications with her from August to October 2013, because Miller could still be prosecuted for the abuse charge as it was dismissed without prejudice and could be charged with violating the TRO as it did not expire until December 25, 2013. The court also allowed Miller to invoke the privilege with regard to questions that could have shown that Miller was angry at the CW for ending their relationship or dating other men and relating to communications he had with the CW after the end of their relationship that would show he knew the whereabouts of the CW. The court stated that answering questions about communications with Kato was going to "lead directly to" Miller arranging the stabbing and that answering questions about post-relationship communications with the CW would show that he knew her whereabouts near the time of the incident, which would furnish a link in the chain of prosecution.
Thus, the circuit court applied the correct legal standard in assessing Miller's invocation of the Fifth Amendment privilege. The court also did not abuse its discretion in concluding that Miller had reasonable cause to apprehend danger from answers to questions regarding his previous relationship with Kato and communications with Kato from August to October 2013, as Miller was still subject to prosecution for the abuse incident and for violation of the TRO. Additionally, the court did not abuse its discretion in concluding that answers regarding motive to harm the CW and communications with the CW after the end of their relationship may have furnished a link in a chain of prosecution by showing that Miller had the motive and opportunity to assault the CW. Accordingly, the circuit court did not err in its rulings on Miller's exercise of his Fifth Amendment privilege, which were properly affirmed by the ICA.
At trial, Kato argued that Miller had waived his Fifth Amendment privilege, and Kato briefly references this circumstance in her Application: "Miller had answered a number of questions after the first 104 hearing and then changed his positions during the second 104 hearing." The circuit court did not rule on whether Miller had waived the privilege. On remand, if Miller again asserts his privilege to questions that he answered at his pretrial Rule 104 hearing, the court will need to address whether Miller waived his Fifth Amendment privilege under HRE Rule 511 (1993):
A person upon whom these rules confer a privilege against disclosure waives the privilege if, while holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is a privileged communication.
See also Naipo v. Border, 125 Hawai‘i 31, 36, 251 P.3d 594, 599 (2011) (a witness voluntarily waives the privilege if the witness is "expressly advised of the privilege and testifies without asserting the privilege").
D. The Circuit Court Did Not Plainly Err in Failing to Give an Accomplice Instruction to the Jury.
On appeal, Kato argues that, based on the jury instructions given, she could only have been found guilty of reckless endangering in the second degree if the jury found her to be the principal actor, i.e., the person who committed the stabbing. As the State only pursued a theory of principal liability and no accomplice instruction was given, Kato contends that she should not have been found guilty of reckless endangering in the second degree as the jury did not find her to be the principal actor. This raises the question as to whether the circuit court plainly erred in not giving an accomplice instruction to the jury.
"[I]t is the duty of the trial court to ensure that the jury is properly instructed." State v. Kikuta, 125 Hawai‘i 78, 90, 253 P.3d 639, 651 (2011). In reviewing an omitted or flawed jury instruction, "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." DeLeon, 131 Hawai‘i at 479, 319 P.3d at 398 (quoting State v. Nichols, 111 Hawai‘i 327, 337, 141 P.3d 974, 984 (2006) ).
"The Hawaii and the federal Constitutions as well as our rules of penal procedure clearly require that appellants be informed of the charges against them." State v. Soares, 72 Haw. 278, 281, 815 P.2d 428, 430 (1991) (citing Haw. Const. art. I, § [14]; U.S. Const. amend. VI ; Hawai‘i Rules of Penal Procedure Rule 7(d) ; State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977) ).
See Haw. Const. art I, § 14 ("In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation...."); U.S. Const. amend. VI (same).
This court has held that a defendant does not need to be charged as an accomplice to permit the giving of an accomplice instruction. State v. Apao, 59 Haw. 625, 645, 586 P.2d 250, 263 (1978), superseded by statute on other grounds as stated in Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 973 n.7 (1993) (holding that under the facts of the case, it was not error for the court to instruct on accomplice liability); State v. Fukusaku, 85 Hawai‘i 462, 486, 946 P.2d 32, 56 (1997). However, charging a defendant as a principal is not necessarily sufficient to provide the defendant with adequate notice of the charges as constitutionally required. Soares, 72 Haw. at 281, 815 P.2d at 430 ; State v. Toma, No. SCAP-13-0000029, at 5, 2015 WL 9303983, at *17-18 (Dec. 21, 2015) (mem.) (Pollack, J., dissenting) ("[I]t does not follow that charging a defendant as a principal provides a defendant sufficient notice that he or she must also be prepared to defend against an accomplice theory of liability."); see Fukusaku, 85 Hawai‘i at 486, 946 P.2d at 56 (discussing facts and circumstances of the case to determine whether the defendant had sufficient notice of the nature of the charges).
In this case, Kato was not charged as an accomplice in the alleged commission of the attempted murder offense, and thus she did not receive any notice that the evidence at trial may subject her to a conviction based upon accomplice liability. Additionally, it is undisputed that the State's evidence was directed at proving that Kato was the person who stabbed the CW and the State did not present an accomplice theory of liability. Thus, the court did not plainly err in not submitting an accomplice instruction to the jury.
Kato contends, however, that she was convicted as an accomplice, and not as a principal, despite the fact that the jury was not instructed on accomplice liability. While there are certainly indications in the record that the jury may have concluded that Kato acted as an accomplice and not a principal, it is not necessary for this court to resolve whether the possibility of such a determination prejudiced Kato in light of our disposition of this case on other grounds. V. CONCLUSION
Kato also contends that there was not substantial evidence for the jury to convict her of reckless endangering in the second degree. Our caselaw has established that this offense can be a lesser-included offense of attempted murder. State v. Samonte, 83 Hawai‘i 507, 541, 928 P.2d 1, 35 (1996). Appellate courts review the sufficiency of the evidence at trial for "substantial evidence." State v. Eastman, 81 Hawai‘i 131, 135, 913 P.2d 57, 61 (1996).
Looking at the evidence in the most favorable light to the prosecution, there is substantial evidence for the jury to conclude that Kato lured the CW to the location where she was attacked. State v. Vliet, 91 Hawai‘i 288, 293, 983 P.2d 189, 194 (1999) ("[T]his court, in passing upon the sufficiency of the evidence, must view the evidence in the light most favorable to the prosecution...."). Messages retrieved on Kato's phone provide evidence that she either operated the "Ai Akanishi" LINE ID or was in contact with "Ai Akanishi." Kato thus would have been able to contact the CW as "Ai Akanishi" or would have been able to provide the CW's LINE ID to "Ai Akanishi." Kato was identified near the scene of the attack when she sought to retrieve the phone that had apparently been dropped there by the assailant. This evidence is of sufficient quality and probative value to allow the jury to find that Kato recklessly placed the CW in danger of death or serious bodily injury. See HRS § 707-714(1)(a). Accordingly, there was substantial evidence to support Kato's conviction for reckless endangering in the second degree.
For the foregoing reasons, the ICA's April 18, 2019 Judgment on Appeal and the circuit court's March 11, 2015 judgment are vacated, and this case is remanded to the circuit court for further proceedings consistent with this opinion.
DISSENTING OPINION BY NAKAYAMA, J., IN WHICH RECKTENWALD, C.J., JOINS
In State v. Rabellizsa, 79 Hawai‘i 347, 351, 903 P.2d 43, 47 (1995), this court concluded that third-party motive evidence is relevant within the meaning of Hawai‘i Rules of Evidence (HRE) Rule 401, only when there is a legitimate tendency to show that a third person committed the crime, meaning that there is "some evidence linking the third person to the crime" besides motive. We reasoned that evidence that a third person might have had a motive to commit a crime, offered alone, was irrelevant and collateral in nature. Id. Our interpretation was in line with the interpretations of other jurisdictions at the time, and still is.
On certiorari, the majority discards the requirement that a defendant must show a connection between a third person and the crime charged in order to admit evidence of the third person's motive. The majority's departure from requiring a connection is premised on the claim that other jurisdictions have subsequently clarified or modified the holdings underlying our decision in Rabellizsa. Majority 147 Hawai'i at 490–91, 465 P.3d at 937–38. However, even when other jurisdictions have modified the formulation of what is necessary to show a connection between the third person and the crime, none have departed from the principle that third-party motive evidence is not relevant when offered alone. Indeed, since Rabellizsa, even more jurisdictions have adopted the requirement that there must be some evidence of a connection, link, or nexus between the third person and the crime before evidence of the third person's alleged motive is admissible.
Yet, the majority overrules Rabellizsa and holds that "it is sufficient for relevancy considerations that the defendant has provided direct or circumstantial evidence tending to show that the third person committed the crime." Majority 147 Hawai'i at 494, 465 P.3d at 941. The majority's holding provides trial courts with scant practical guidance for determining when third-party motive evidence is admissible. This will allow criminal defendants to implicate a third person on the barest trace of evidence.
Accordingly, I dissent.
I. BACKGROUND
The complaining witness (CW), a twenty-seven-year-old woman, was stabbed multiple times in a dark parking lot. CW was stabbed in the abdomen, side, and in her right arm and her injuries were life-threatening. CW ran into a nearby coffee shop to get help and her attacker fled the scene.
On November 8, 2013, the State of Hawai‘i (the State) charged Yoko Kato (Kato) by complaint with Attempted Murder in the Second Degree.
A. The Trial
1. The State's Witnesses
Kato's jury trial commenced on December 10, 2014. CW testified through a Japanese interpreter. CW testified that she was twenty-eight years old and came to Hawai‘i from Japan in 2013 to study English.
The Honorable Karen S.S. Ahn presided.
CW testified that on the night she was stabbed, she had gone to meet someone named Ai Akanishi (Akanishi). CW did not know Akanishi, who first contacted CW through the LINE application (LINE) three days before the stabbing. Akanishi had sent CW a LINE message telling CW that she wanted to meet for a drink. CW believed Akanishi was a female based on her name and the content of the message. Akanishi told CW that she had obtained CW's LINE I.D. from unnamed mutual friends from school. CW and Akanishi agreed to meet for drinks at 9:00 p.m. on October 25, 2013, at Akanishi's boyfriend's home. Akanishi gave CW an address in Honolulu, between Waikiki and Diamond Head.
The LINE application is a social media application that allows users to send text and photo messages to other users via the user's "LINE I.D." The Line application is similar to email, and the LINE I.D. is comparable to an email address.
At approximately 9:45 p.m., CW arrived by bicycle at the address that Akanishi gave her. CW saw a person sitting on the sidewalk who she described as a brown-skinned Asian man. CW could not see his face, but he was wearing long pants, a t-shirt, and a baseball cap, and she at first assumed it was Akanishi's boyfriend. CW testified that the man appeared to be Asian, medium build, and no more than ten centimeters taller than CW. The man, speaking Japanese, asked "are you [CW];" CW answered "yes" and asked where she could park her bicycle. The man, speaking Japanese again, said "there." CW testified that she turned around to walk her bike and park it while the man followed her and then "I got stabbed." CW was stabbed five times in her abdomen, side, and arm. After the first stab, CW "saw him holding a knife in his hand." The attacker made a noise while stabbing her that CW described as "like ‘Woo,’ as if a person would utter when a person is trying to do something with his force." CW described her attacker as a person with black hair that "was a bit long for a man," with no facial hair and a "brownish" neck.
CW described the speaker's Japanese as "Japanese spoken by a nonnative speaker." However, it bears noting that CW based her assessment of the attacker's Japanese language skills based solely on the four words the attacker uttered.
CW testified that the attacker never grabbed or restrained her, so she was able to run away. As CW ran, she saw that the attacker was chasing her. CW ran to the coffee shop around the corner to get help. From there, CW was taken to the hospital.
When police detectives questioned CW in the days after the attack, CW gave Kato's name to detectives because "[Kato] is the person I could think of[ ]" based on the fact that CW was lured to the place where she was attacked through LINE messages, Kato had CW's LINE I.D., and Kato was the ex-girlfriend of David Miller (Miller). CW had stayed with Kato for two nights — October 12th and 13th — because she needed a place to stay before CW's parents arrived for a visit from Japan. CW was dating Miller at the time she stayed with Kato, and CW believed that Miller had contacted Kato to arrange for CW to stay with her. During CW's stay with Kato, the two women talked about various things: school, food, and Kato's relationship and breakup with Miller. CW testified that she never told Kato that she was dating Miller.
CW testified that Kato was one of only two people who had CW's LINE I.D., and that without her LINE I.D., it was not possible to contact CW through the LINE application. CW's usual practice was to never give out her LINE I.D., but to enter it into a friend's phone herself, thus keeping her LINE I.D. secure. CW had only given her LINE I.D. to one friend (Miho) who, with CW's permission, gave it to Kato. Kato contacted CW in August 2013 regarding Miller's bicycle, because Kato borrowed the bicycle from Miller and left her bicycle lock on the bicycle, but CW was borrowing it at the time.
Other than the messages from Akanishi, CW was never contacted through LINE by anyone that she did not personally know. After the stabbing, CW never received another message from Akanishi.
CW had no permanent address in Hawai‘i. When she first arrived in Hawai‘i in April 2013, she stayed with a host family for three months. After staying with the host family, CW stayed with Miller for one month, and then with various friends.
When asked to describe Miller's appearance, CW testified that Miller is Caucasian and about thirty centimeters taller than CW, so she had to look up to Miller. CW and Miller usually conversed in English, but they occasionally spoke Japanese and Miller's Japanese was "very good." CW began dating Miller in August 2013, but the two of them had limited contact after October 13, 2013, and then broke up. CW stated that Miller did not have a LINE account, a computer, or a smart phone when she knew him. When asked if Miller stabbed her, CW said "[n]o, I don't think so[,]" because Miller's "physical shape is completely different" and, to her knowledge, Miller had no reason to want to stab her.
On cross-examination, CW admitted that on October 27, 2013, she told a detective that her attacker was a man. However, CW testified that on October 28, 2013, she told the detective it could have been a female because the attacker was relatively small. CW testified that Kato was not her attacker. When asked four times if she ever told the police officers who questioned her at the coffee shop or the hospital that her attacker was a Caucasian man, CW answered four times: "I didn't say that."
CW testified that she was speaking English when questioned at the coffee shop and Japanese and English at the hospital. A coffee shop employee also testified that when CW came in seeking help, CW told her that the attacker was a man. Given that CW was not a native English speaker, it seems plausible that the police officers and coffee shop employee might have misunderstood her.
Emiko Morie (Morie) testified that she lived across the street from where the stabbing occurred. On the night of the stabbing, Morie was in her garage smoking a cigarette when she saw "a boy [who] looked exactly like [her] son" across the street. Morie described the "boy" as having the same body shape as her twenty-two-year-old son. Morie explained that "[the boy's] physical silhouette or shape was exactly like my son[ ]" because he had "small buttock" and was "skinny."
Morie is originally from Japan and testified through a Japanese interpreter.
Morie could not see his face because it was dark. Morie saw a girl arrive on a bicycle and talk to the boy, and then she saw them go into a "darker bushed area." Morie went into her garage, but then she heard a girl's scream, so she moved towards the sidewalk in order to see the street. Morie saw the girl run into the street with the boy chasing her. The boy almost reached the girl, but then he fell down. Morie went to the street looking for the girl, but she could not see her. As she walked back, Morie saw the boy reappear, get on the girl's bike, and ride away.
Another witness who was in the area around the time of the stabbing also testified that he heard a woman scream, then saw a girl running down the street with "a person" chasing after her. The witness saw the person, who was about 5’6" to 5’8" with medium build, fall down "onto their stomach." The witness described the person as a man based on the person's build, but saw no other distinguishing male characteristics and admitted that the person could have been a woman.
Morie noticed a flip-style cell phone with a charm on it on the road where the boy fell down. Morie opened the phone and called "the person who was on the history of recent calls." Morie recalled that the name in the call history was David, testifying that "[his] name appeared many times. And a man answered." Morie told the man, in English, that she found the phone, and he replied that he knew who the phone belonged to and would come pick it up in thirty minutes.
Morie left to pick up her twenty-two-year-old son from work and returned home about twenty minutes later. When she arrived, Morie was unable to get to her house because the police were there and had blocked off the area with yellow tape. When Morie realized that "something happened," she decided that she should not return the phone to its owner, but should give it to the police. Morie told a police officer how she found the phone on the ground, in the spot where a boy chasing a girl fell down. At that point, a woman approached Morie and told her that "there is a man over there by the bush crying" and saying the phone belonged to him, so "[the woman] should take the phone to that person." Instead of letting the woman take the phone, Morie gave it to a police officer. According to Morie, the woman seemed very nervous and concerned about the phone. Morie told the police officer the woman's story about the man crying about the lost phone, which Morie described as "a little fishy," but when police officers went to look near the bushes, they found no one there. Although Morie gave the phone to a police officer, she later saw the woman holding the phone, so she took the phone away from the woman. Morie opened the phone again and saw that the call history was deleted. Morie explained what happened to a different police officer and gave the phone to him.
Morie's twenty-two-year-old son Hayato Yoshida (Yoshida) testified that he helped his mother speak to the police officers that night because she speaks mainly Japanese. Yoshida testified that Morie showed a police officer the phone and that a middle-aged Japanese woman, who was about the same height as Yoshida, approached to say the phone belonged to someone else and tried to take the phone away. Yoshida identified Kato as the woman who took the phone. Yoshida is 5’6" tall.
Morie described the woman as Japanese, middle-aged, "[n]ot too skinny, not too fat[,]" and a "little on the darker side." Morie identified Kato as the woman who had tried to take the phone from her.
Honolulu Police Department (HPD) Officer William Ellis (Officer Ellis) testified that he arrived at the coffee shop while CW was being treated by paramedics. While Officer Ellis secured the scene with crime scene tape, he was approached by a woman who handed him a flip-style cell phone with a beaded charm. Officer Ellis held onto the phone and was later approached by a second woman, who told him that she lost her phone earlier that evening at about 5:00 p.m., but offered no explanation for how she had lost it. Officer Ellis described the woman as approximately 5’7", Japanese, with "pimple-ish features on her face" and "brownish-blackish wavy hair." Because the woman described the phone and was able to unlock it, Officer Ellis gave it to her. The woman told Officer Ellis that (1) her name was Yuri Mochizuki; (2) she lived at 1710 Young Street, Apartment 105; and (3) her date of birth was March 14, 1969. Officer Ellis identified State's Exhibit 54 as the phone.
Although Officer Ellis wrote down the name "Yuri Mochizuki," Yui Mochizuki (Mochizuki) was Kato's roommate at the time of the stabbing and 1710 Young Street, Apartment 105 was their address. March 14, 1969 is Kato's date of birth.
Officer Ellis testified that after he gave the woman the cell phone, she told him that she had to use the restroom. Officer Ellis suggested to the woman that there might be a restroom in the Aloha gas station nearby and asked her to return after she used it. The woman left the area and did not return.
State's witness Christopher Lam, who worked at the Aloha gas station, later identified Kato in court as the woman who came into the gas station between 10 p.m. and 11 p.m. on the night of the stabbing and asked to use the restroom.
Mochizuki testified that she was Kato's roommate in September and October of 2013. During that time, Kato told Mochizuki that she still had feelings for her ex-boyfriend, whom Kato frequently talked about. Mochizuki stated that while CW stayed with Kato, Kato, her ex-boyfriend, and CW had dinner together one night at their apartment.
Mochizuki testified that, on the night of the stabbing, Kato and her ex-boyfriend were drinking beer at Kato and Mochizuki's apartment when Mochizuki left to go to a party about 7:30 p.m. When Mochizuki came home from the party at 1:30 a.m., Kato told Mochizuki that she lost her cell phone. Kato told Mochizuki that earlier that day, Kato found a letter written in Japanese with $60 on their front door. Mochizuki did not see the letter, but Kato told her the letter instructed Kato to take the money, buy something, and bicycle to a location near a specific coffee shop in the Diamond Head area at 9:00 p.m. Kato told Mochizuki that she followed the instructions in the letter, and that when she arrived at the specified location, Kato was pushed, dropped her phone, heard a scream, and saw many police officers arrive. Kato told Mochizuki that she suspected that her ex-boyfriend might have written the letter, but that the Japanese was too good for him to have written it.
HPD Detective Roy Nakama (Det. Nakama) testified that he was assigned to investigate the case. Det. Nakama initially was looking for a male suspect with a slim build, who was between 5’5" and 5’9" tall, based on the police reports that he reviewed. However, Kato became the focus of the investigation after Det. Nakama interviewed CW. Det. Nakama began to focus on Kato as a suspect for the following reasons: (1) "[CW] stated, when she was asked who might have done this to her ... [it] might have been her ex-boyfriend's girlfriend[;]" (2) CW told Det. Nakama that Kato had access to her LINE I.D.; (3) the surveillance video at the Aloha gas station placed Kato near the scene immediately after the stabbing; (4) the attacker fell while chasing CW and another officer observed that Kato had a knee abrasion ; and (5) Kato retrieved the cell phone that was found at the scene but gave Officer Ellis the name of her roommate.
Det. Nakama was referring to a photograph taken by another detective who assisted in the investigation. This other detective surveilled Kato after the stabbing and testified that he took a photo of her with a bandage visible on her right knee.
Det. Nakama stated that he recovered an iPod and a flip-type cell phone at Kato's apartment, but that he never recovered the knife. Because CW described the knife as having a serrated edge on top, Det. Nakama checked stores near Kato's home and school that sold knives similar to the one CW described. In one of the stores he visited, the Security Equipment Corporation on Young Street, Det. Nakama saw knives that came closest to CW's description. Det. Nakama testified that he obtained a list of knives sold by Security Equipment Corporation, during the month of the stabbing, which matched the description provided by CW.
State's Exhibit 54 was a photograph of Kato's cell phone after it was recovered from her apartment.
The State called three witnesses who worked at Security Equipment Corporation (collectively "knife store employees") around the time of the stabbing. The first knife store employee identified Kato as visiting the store before Halloween in 2013 looking for a knife, but he could not remember whether Kato purchased anything.
The second knife store employee recalled seeing an Asian woman in her thirties or forties in the store in October or November of 2013, who spent about thirty minutes looking at small or medium-sized Kershaw brand pocket knives. This employee was also unable to recall whether the woman purchased anything.
The third knife store employee met with detectives after the stabbing and was able to identify Kato from a photo lineup as the woman who was in the store in the later part of October 2013 and spent about thirty minutes looking at knives before purchasing one with cash. Based on inventory records, this employee determined that a serrated knife was purchased with cash on October 16, 2013, but he could not say for certain that Kato bought that knife.
Det. Nakama described Kato as about 5’7", with a slim build and tan skin. Det. Nakama stated that Kato's build matched Morie's description of the suspect, who Morie said looked like her son. When Det. Nakama spoke to Morie's son, he noticed Morie's son was about 5’6" or 5’7", with a slim build. During one of Det. Nakama's interviews with CW, without prompting, CW told him that "on second thought," the attacker could have been a woman.
Det. Nakama testified that he attempted to locate the person identifying herself as "Akanishi" by contacting her through her school, sending her an email message, and checking to see if anyone named Ai Akanishi had ever obtained a Hawai‘i State identification card or driver's license. However, none of these attempts were successful and Det. Nakama found that the school Akanishi claimed to attend did not exist.
A special agent with Homeland Security Investigations testified that, at Det. Nakama's request, he conducted an unfruitful search to determine whether anyone named Ai Akanishi entered the United States from any country since the late 1990s.
On cross-examination, Det. Nakama testified that he had interviewed Miller as a witness, but that Miller was not a suspect.
HPD Detective Taro Nakamura (Det. Nakamura) testified that he assisted in the investigation. At Det. Nakama's request, Det. Nakamura emailed CW photos of two knives, one serrated and one smooth, and CW selected the serrated knife. CW told Det. Nakamura, "she couldn't be sure, but it looked like the knife that was used on October the 25th."
Kristen Hamamoto, a digital forensics examiner employed by HPD, testified that she examined Kato's Apple iPod, which is similar to an Apple iPhone, except that it does not have cellular capabilities. Hamamoto found that the iPod had been used to communicate with CW using the LINE app, and that
there was a LINE user creation of – by the name of Ai Akanishi on a specific date. October 28, 2013. At 1958 hours.
....
Q: Thank you. Now, what does that mean, a user was created on October 28th?
A: Not necessarily that the user was created, but that entry was created. So it would be hard to say. It could be both, or neither. Or had to be one, obviously. But I'm not sure which one that was.
....
Q: So what – would it be safe to say then that you're not saying that the user I.D. was created on that day. You're just saying that something relative to that name, Ai Akanishi, was created in the LINE App.
A: On that particular device. It's possible to, you know, have your [LINE] account on multiple devices.
Hamamoto also found "a search hit for the term Akanishi" in the email folder and the SMS folder, which indicated that there was recent messaging either to or from the Akanishi email address on the iPod.
The contact information for Ai Akanishi included the number 440314, and an email address. The State later noted that the number 440314 is relevant because Kato was 44 years old at the time of the stabbing and her date of birth is March 14.
2. The Defense
The defense called Miller as an adverse witness. Miller began to testify about his relationship with CW, but the State objected based on relevance when defense counsel asked Miller whether he was "aware if [CW] was dating other men[.]" At the bench, defense counsel argued that he should be permitted to elicit testimony of Miller's motive to harm CW. The State argued that, under State v. Rabellizsa, 79 Hawai‘i 347, 903 P.2d 43 (1995), defense counsel could not bring up Miller's motive because there was no "nexus" connecting Miller to the crime. Defense counsel argued that he would establish through Kato's testimony that Miller was upset that CW was dating other men and that Miller told Kato that he "went through" CW's phone and saw the names of other men. The circuit court ruled that the defense could not attempt to elicit motive testimony from Miller because there was "no nexus" to the crime, but that defense counsel could ask Miller if he had stabbed CW.
Prior to trial, Kato filed a notice of intent to introduce evidence that Miller (1) physically abused Kato in May 2013; (2) was arrested for abuse of a family or household member after an incident with Kato on June 24, 2013; and (3) forced Kato to write a letter recanting her abuse allegations. The circuit court conducted a pretrial hearing, pursuant to HRE Rule 104, to determine whether defense counsel would be allowed to question Miller regarding these alleged incidents. The defense argued that this evidence was relevant to show that Miller had a motive to "set up" Kato and that Miller was involved with the stabbing. The defense planned to adduce testimony that, after Miller was arrested for the earlier incidents, Miller told Kato that "she ruined his life" and threatened to get revenge against Kato. The circuit court took the matter under advisement.
The charges against Miller stemming from the incidents with Kato were lowered to harassment and later dismissed without prejudice.
Defense counsel next asked Miller, "[w]hile you were dating [CW], you ever see her with other men?" Miller's court-appointed Fifth Amendment counsel signaled to Miller that he should ask for a break and not respond. Outside of the jury's presence, Miller's counsel explained that he advised Miller not to answer the question. Miller's counsel argued that, because the defense was trying to "point the finger to [Miller]," Miller was entitled to assert his Fifth Amendment privilege to questions that "would arguably give [Miller] motive to assault [CW]." Defense counsel argued that Miller had answered those questions at the earlier Rule 104 hearing without asserting his Fifth Amendment privilege.
Miller was appointed Fifth Amendment counsel because the State chose not to call Miller as a witness and declined to offer him immunity from prosecution. The prosecution informed Kato on December 9, 2014, that Fifth Amendment counsel was being appointed for Miller. The State averred to the circuit court that Miller still faced potential prosecution for temporary restraining order (TRO) violations and the harassment charge which was dismissed without prejudice.
The circuit court held a Rule 104 hearing on December 15, 2014, to determine whether Miller would assert his Fifth Amendment privilege with respect to certain lines of questioning. At the hearing, Miller asserted his Fifth Amendment privilege on all questions about his arrest for abuse of a family or household member, any questions about contact that he had with Kato between June 26, 2013, and December 23, 2013, the time during which the TRO was pending, and any questions about his whereabouts on the night of the stabbing.
At the Rule 104 hearing, Miller testified, inter alia, that (1) he dated CW from late August 2013 until October 18, 2013, when she stopped contacting him; (2) Miller loved CW and wanted to marry her, but they never discussed marriage; (3) Miller had no knowledge of her dating other men during their relationship or after; (4) the reason CW had stopped staying with him was because his landlord refused double occupancy; (5) Miller is 5’10" in height; (6) Miller carries a knife for work that has a four-inch blade, which he described as "one of those safety knives that breaks the car window, cuts the seat belt, quick release[;]" and (7) Miller had never used or seen the LINE application.
See supra n.18 for a summary of Miller's testimony at the first Rule 104 hearing.
The circuit court excused the jury and conducted a second Rule 104 hearing to determine whether defense counsel could question Miller about his motive to harm CW. Defense counsel argued that he should be permitted to ask Miller about statements that Miller allegedly made to Kato about seeing CW with other men. The circuit court stated that, under Rabellizsa, "motive is not really relevant, because you can't point the finger at somebody else." The circuit court observed that "there's really nothing to tie [Miller] to the stabbing" because "nobody saw him near the scene[,] [n]obody says it was a Caucasian[,]" and Miller is 5’10" tall. Defense counsel argued that CW told two police officers that the suspect was a Caucasian man and that "perception of height" was an issue. When asked if there was any evidence other than motive that provided a nexus between Miller and the crime, defense counsel stated that the defense planned to elicit testimony that Miller told Kato on October 23, 2013, that he (1) found evidence that CW was dating other men; (2) went through CW's cell phone and saw phone numbers of numerous men; and (3) believed CW was having sex with other men and was unhappy about it. The circuit court stated that these were all evidence of motive and ruled that because there was no nexus linking Miller to the crime, under Rabellizsa, defense counsel was not permitted to introduce evidence of Miller's motive.
The circuit court permitted Miller to assert his Fifth Amendment privilege on "motive related questions." After the hearing adjourned, defense counsel argued that Miller's assertion of his Fifth Amendment privilege harmed the defense and that the defense would not have called Miller as a witness if it had known Miller would assert his Fifth Amendment privilege to questions about his relationship with CW. The circuit court stated that it "assume[d] that virtually all of this information that he took the Fifth for can come out through [Kato]," who had already indicated that she planned to testify. Defense counsel argued that much of Kato's testimony might be excluded as hearsay but was unable to tell the circuit court which specific statements he was concerned about. The circuit court offered to strike Miller's testimony.
At Kato's request, Miller's testimony and appearance were stricken when court reconvened the following day.
Kato exercised her right not to testify.
B. Jury Instructions
During the settling of jury instructions, the circuit court stated on the record that after taking a close look at Rabellizsa and reviewing its notes, the circuit court could not find any evidence, other than a possible motive, tying Miller to the crime "that is not remote in time, place or circumstances." Accordingly, the circuit court ruled that Kato could not argue in closing that Miller committed the crime. However, the defense could argue generally that someone other than Kato was the attacker — just not Miller specifically.
Prior to closing arguments, the State asked the circuit court to confirm that the defense was precluded from "arguing motive and trying to pin this case on Mr. Miller" during closing arguments. The circuit court took the matter under advisement, saying that it wanted to look at Rabellizsa again.
The circuit court gave the jury written instructions on Attempted Murder in the Second Degree, the offense with which Kato was charged. The jury was also instructed on the lesser included offenses of Assault in the First Degree, Assault in the Second Degree, and Reckless Endangering in the Second Degree (reckless endangering).
The reckless endangering instruction stated,
If, and only if, you find the Defendant not guilty of the included offense of Assault in the Second Degree (reckless serious bodily injury), or you are unable to reach a unanimous verdict as to this offense, then you must consider whether Defendant is guilty or not guilty of the included offense of Reckless Endangering in the Second Degree.
A person commits the offense of Reckless Endangering in the Second Degree if she engages in conduct which recklessly places another person in danger of death or serious bodily injury.
There are two material elements of the offense of Reckless Endangering in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about October 25, 2013, in the City and County of Honolulu, State of Hawai‘i, the Defendant engaged in conduct which recklessly placed [CW] in danger of death or serious bodily injury; and
2. That the Defendant did so intentionally, knowingly, or recklessly.
Neither party requested an accomplice liability instruction, nor was one given.
C. Jury Deliberations and Verdict
During jury deliberations, the jury asked the circuit court two questions. First, the jury asked "[c]an we consider whether someone else aided [Kato]?" The circuit court answered, "[d]uring this trial, you received all of the evidence which you may consider to decide this case. You must follow all of the Court's instructions to you."
The second jury communication asked:
After deliberating yesterday afternoon + all morning, we are still hung almost 50/50. One major point of confusion is how we interpret the legalese of the charge itself on page 23 of our instructions. Some of us feel that [Kato] is not guilty because there is reasonable doubt whether [Kato] actually held the knife and stabbed [CW]. Others feel that there is proof beyond a reasonable doubt that [Kato] took actions to lead [CW] to Kaunaoa St where someone was waiting to stab [CW].
Our question is, in layman's terms, does the charge include [Kato] intentionally conspiring to have [CW] stabbed without actually being the stabber?
The jury question referred to page 23, which provided the instructions for the offense of Attempted Murder in the Second Degree.
The circuit court answered, "[n]o." Twelve minutes later, the jury informed the circuit court that it had reached a verdict. The jury found Kato guilty of reckless endangering.
II. DISCUSSION
Third-party motive evidence is irrelevant unless there is some evidence connecting the third person to the commission of the offense. The majority misconstrues Rabellizsa as creating a heightened standard for third-party motive evidence beyond what the Hawai‘i Rules of Evidence require. See Majority 147 Hawai'i at 495 n.29, 465 P.3d at 942 n.29. However, to say that Rabellizsa created a heightened standard is a misinterpretation of the case. In Rabellizsa, this court interpreted when third-party motive evidence is relevant evidence, within the meaning of HRE Rule 401, to assist trial courts in determining admissibility. Here, the circuit court did not err in precluding Kato from offering evidence that Miller might have had a motive to commit the crime, because absent other evidence connecting Miller to the crime, his motive was not relevant. A. Rabellizsa did not create an evidence rule beyond what the HRE requires but interpreted when third-party motive evidence is relevant and admissible.
HRE Rule 401 provides that " ‘[r]elevant evidence’ means 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." (Emphasis added.)
In Rabellizsa, 79 Hawai‘i at 350, 903 P.2d at 46, this court considered the question of when evidence of a third party's motive to commit a crime is relevant within the meaning of HRE Rules 401 and 402. Because it was a matter of first impression, this court looked at other jurisdictions for guidance on when third-party motive evidence is relevant, and hence, admissible. Id. We observed that in a number of jurisdictions, evidence that a third-party had a motive to commit a crime was not relevant when offered by itself. Id. Rather, each of these jurisdictions held that third-party motive evidence is relevant only when something more is presented as evidence. See id. (citing People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d 99, 104 (1986) (requiring "direct or circumstantial evidence linking the third person to the actual perpetration of the crime."); Winfield v. United States (Winfield I), 652 A.2d 608, 612-13 (D.C. 1994) (holding that third-party motive evidence is deemed relevant and admissible only when there is a clear link or nexus connecting the third-party to the crime charged); Spence v. State, 795 S.W.2d 743, 754–55 (Tex. Crim. App. 1990) (disallowing third-party motive evidence unless the defendant can connect the third-party to the crime); State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12, 17 (Wis. Ct. App. 1984) (allowing third-party motive evidence when there is a legitimate tendency to show that "the third person could have committed the crime[,]" meaning there is some evidence directly connecting the third person to the crime charged "which is not remote in time, place or circumstances[ ]") (internal quotation marks omitted)).
HRE Rule 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the State of [Hawai‘i], by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible."
Courts refer to the necessary relationship between the third person and the crime charged as either a nexus, clear link, or connection. See infra Part II(B).
Thus, we reached the conclusion that "there must be some evidence linking the third person to the crime in order to admit evidence of the third person's motive." Rabellizsa, 79 Hawai‘i at 351, 903 P.2d at 47. Although the Rabellizsa court noted that Denny ’s "legitimate tendency" test comported with HRE Rule 401 ’s standard for relevant evidence, we did not apply any rigid formulation of that test. Id. Instead, we considered whether there was any evidence linking the third person to the crime and concluded that because no such evidence existed in the record, "[e]vidence that a third person had a motive to commit the crime ... is irrelevant and collateral in nature." Id.
B. There is no valid justification for departing from our requirement that evidence besides motive connect the third person to the crime charged.
Our holding in Rabellizsa regarding third-party motive evidence is still supported by the plain text of HRE Rule 401, the decisions of other jurisdictions, and practical reasons for excluding evidence that is too remote or speculative. Simply put, nothing has changed since we decided Rabellizsa that justifies departing from the requirement that a third person must be connected to the crime charged by more than a possible motive.
A third person's alleged motive to commit the crime is not relevant within the meaning of HRE Rule 401 absent evidence connecting the third person to the crime. " ‘Relevant evidence’ means 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." Haw. R. Evid. 401 (emphasis added). Thus, evidence is only relevant when it tends to prove or disprove a fact that is of consequence. By its very nature, whether a third person might have had a motive to commit a crime is not a "fact that is of consequence to the determination" unless there is some other evidence linking the third person to the crime. See Haw. R. Evid. 401. Third-party motive evidence alone is irrelevant, and thereby inadmissible pursuant to HRE Rule 402. Accordingly, Rabellizsa merely interpreted when third-party motive evidence is relevant evidence under HRE Rule 401. 79 Hawai‘i at 351, 903 P.2d at 47.
See supra n.23 for the text of HRE Rule 402.
The majority justifies overruling Rabellizsa based on the claim that since it was decided, "almost all of the decisions underlying our holding in Rabellizsa have been clarified or modified by subsequent caselaw in those jurisdictions." Majority 147 Hawai'i at 491, 465 P.3d at 956. This reasoning is disingenuous and ignores the fact that since our holding in Rabellizsa, numerous jurisdictions have concluded that third-party motive is relevant only when there is additional evidence connecting the third person to the crime. See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (third-party motive evidence is relevant and material only if the defense produces other evidence directly connecting the third person with the crime charged); State v. Eagles, 74 Conn.App. 332, 812 A.2d 124, 128 (Conn. App. Ct. 2002) (citing State v. Hill, 196 Conn. 667, 495 A.2d 699, 703 (Conn. 1985) (third-party motive evidence is relevant "if other connecting evidence exists")); State v. Knox, 301 Kan. 671, 347 P.3d 656, 668 (Kan. 2015) ("[E]vidence of a third party's motive, on its own, will be excluded for relevance where nothing else connects the third party to the crime."); State v. Woodard, 942 N.W.2d 137, 142 (Minn. 2020) ("[E]vidence of motive alone does not have the inherent tendency to connect a third party to the commission of the crime.") (quoting Troxel v. State, 875 N.W.2d 302, 309 (Minn. 2016) ). Thus, Rabellizsa’s holding that third-party motive evidence is relevant within the meaning of HRE Rule 401 only when there is "some evidence linking the third person to the crime" is in line with the interpretations of numerous other jurisdictions. See Rabellizsa, 79 Hawai‘i at 351, 903 P.2d at 47.
In regard to the fact that some decisions underlying our holding in Rabellizsa have subsequently been "clarified or modified," Majority 147 Hawai'i at 491, 465 P.3d at 956, none of the cited jurisdictions have departed from the principle that third-party motive evidence is not relevant when offered alone.
For instance, when Winfield was reheard en banc, the D.C. Court of Appeals adopted the "reasonable possibility" standard, holding that third party-motive evidence is relevant when there is a "link, connection or nexus between the proffered evidence and the crime at issue." Winfield v. United States (Winfield II), 676 A.2d 1, 5 (D.C. 1996) (en banc) (internal quotation marks and citation omitted). Moreover, the Winfield II court reaffirmed " ‘that a defendant's proffer of evidence that other individuals had even stronger motives to murder the victim than the accused [is] insufficient, without more, to establish the [required] link to the offense charged.’ " Id. (quoting Winfield I, 652 A.2d at 612 ).
Winfield II reaffirmed the holding of Beale v. United States, 465 A.2d 796, 803 (D.C. 1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984), as summarized in Winfield I. Winfield II, 676 A.2d at 5.
Similarly, when the California Supreme Court changed its articulation of what kind of evidence is required before third-party motive evidence is deemed relevant, it did not throw open the floodgates to admit all evidence that a third person might have a motive. Rather, third-party evidence must be "capable of raising a reasonable doubt of defendant's guilt" to be relevant. Hall, 226 Cal.Rptr. 112, 718 P.2d at 104. The California Supreme Court stated:
At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. ... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.
Id. (emphasis added). Thus, while the California Supreme Court rejected a heightened standard for the admission of third-party evidence, it still requires something more than motive alone — it requires evidence linking the third person to the crime. See id. After our decision in Rabellizsa, the Wisconsin Supreme Court revisited the legitimate tendency test and explicitly reaffirmed Denny:
We ratified the Denny test in [ State v. Knapp, 265 Wis.2d 278, 666 N.W.2d 881, 918-19 (Wis. 2003) ], noting the constitutional underpinnings of the standard in United States Supreme Court precedent. Indeed, since Knapp, the Supreme Court has gone on to cite the Denny case with approval. See Holmes v. South Carolina, 547 U.S. 319, 327–28 n. *, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). We now reaffirm that the Denny test is the correct and constitutionally proper test for circuit courts to apply when determining the admissibility of third-party perpetrator evidence.
State v. Wilson, 362 Wis.2d 193, 864 N.W.2d 52, 64 (2015) (internal citation omitted). The Wisconsin Supreme Court provided additional guidance on how to apply the legitimate tendency test, explaining that it requires a court to consider three prongs before admitting third-party culpability evidence: motive, opportunity, and a direct connection between the third person and the crime. Id., 362 Wis.2d 193, 864 N.W.2d at 64-65. In regard to a direct connection, Wisconsin courts are to consider whether there is "evidence that the alleged third-party perpetrator actually committed the crime, directly or indirectly[.] ... Logically, direct connection evidence should firm up the defendant's theory of the crime and take it beyond mere speculation." Id. (emphasis added).
The majority contends that the Wisconsin Supreme Court has "curtailed" the legitimate tendency test in other contexts. Majority 147 Hawai'i at 492–93, 465 P.3d at 939–40. The majority cites State v. Richardson, 210 Wis.2d 694, 563 N.W.2d 899, 903 (1997), which held that the legitimate tendency test does not apply to the introduction of frame-up evidence. According to the majority, Richardson would apply in Kato's case because "Kato's defense was that Miller committed the crime and framed her by luring her to the crime scene by the note left at her door." Majority 147 Hawai'i at 493 n.24, 465 P.3d at 940. Notwithstanding the fact that Wisconsin caselaw is merely persuasive authority, Richardson would not apply in this case because the evidence that Kato was precluded from introducing was regarding Miller's alleged motive. Kato was not precluded from introducing testimony about the note she claimed to receive or even the note itself, and in fact did adduce testimony about the note through Mochizuki.
The majority also cites Michael R.B. v. State, 175 Wis.2d 713, 499 N.W.2d 641, 646 (1993) where, prior to Wilson, the Wisconsin Supreme Court stated that proffered evidence regarding a third person must "connect that person to the crime, either directly or inferentially." Majority 147 Hawai'i at 493, 465 P.3d at 940. The majority's emphasis on the word "inferentially" ignores the preceding sentence in Michael R.B., which states that the proffered evidence "must do more than simply afford [ ] a possible ground of suspicion against another person." Id. While an inferential connection is permissible, a speculative connection is not, as the Wilson court later explicitly stated. See Wilson, 864 N.W.2d at 64-65, 362 Wis.2d 193 ("[D]irect connection evidence should firm up the defendant's theory of the crime and take it beyond mere speculation.") (emphasis added).
The majority's reliance on the Wisconsin Supreme Court's interpretations regarding relevancy of third-party culpability evidence is surprising, given that the general rule in that jurisdiction is that third-party culpability evidence is inadmissible unless there is a "direct connection between the third party and the perpetration of the crime. See id., 362 Wis.2d 193, 864 N.W.2d at 67.
Requiring a connection between a third person and the crime charged before motive evidence is deemed relevant serves two important purposes. First, it excludes evidence that is purely speculative in nature. Requiring a link, connection, or nexus between the proffered evidence and the crime charged "insures the exclusion of evidence that is too remote in time and place, completely unrelated or irrelevant to the offense charged, or too speculative with respect to the third party's guilt." Winfield II, 676 A.2d at 5 (internal quotation marks and citation omitted). Second, it allows the factfinder to focus on issues that are actually relevant and not collateral. " ‘[E]vidence that simply affords a possible ground of suspicion against another person should not be admissible. Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased — degenerating the proceedings into a trial of collateral issues.’ " Wilson, 864 N.W.2d at 73, 362 Wis.2d 193 (Zeigler, J., concurring) (quoting Denny, 357 N.W.2d at 17, 120 Wis.2d 614 ).
The majority overrules Rabellizsa ’s interpretation that third-party motive evidence is relevant, within the meaning of HRE Rule 401, only when there is a legitimate tendency to show that a third person committed the crime, meaning that there is "some evidence linking the third person to the crime" besides motive. See 79 Hawai‘i at 351, 903 P.2d at 47. However, the majority offers little guidance to trial courts other than HRE Rule 401 itself. Majority 147 Hawai'i at 493–94, 465 P.3d at 940–41. Under the majority's new standard for relevancy of third-party culpability evidence, the defendant need not show any direct link between the third person and the crime charged. Majority 147 Hawai'i at 493–94, 465 P.3d at 940–41. Even worse, the majority states that "it is sufficient for relevancy considerations that the defendant has provided direct or circumstantial evidence tending to show that the third person committed the crime." Majority 147 Hawai'i at 494, 465 P.3d at 941 (emphasis added). Arguably, any piece of evidence could meet this flimsy standard of circumstantial evidence "tending to show that [a] third person committed the crime." See Majority 147 Hawai'i at 494, 465 P.3d at 941. As a result, a defendant may be able to implicate scores of other persons with a possible motive to commit the crime. See Wilson, 864 N.W.2d at 73, 362 Wis.2d 193 (Zeigler, J., concurring). The majority leaves trial courts with no practical guidance to determine when third-party motive evidence is inadmissible, which will undoubtedly lead to confusion of the issues for jury.
Thus, our holding in Rabellizsa is still squarely supported by the definition of relevant evidence in HRE Rule 401, the interpretations of other jurisdictions that something more than third-party motive evidence alone is required to establish relevancy, and sound reasons for requiring a connection between the third person and the crime charged.
See supra n.22 for the text of HRE Rule 401.
C. The circuit court did not err in precluding Kato from offering evidence that a third person might have had a motive to commit the crime.
In this case, there was no evidence connecting Miller to the crime charged and the circuit court properly excluded Kato from offering evidence that Miller might have had a motive to commit the crime. As the circuit court observed, no witness saw Miller near the scene or testified that the suspect was Caucasian, and Miller, at 5’10", is much taller than the suspect. The mere fact that Miller is a non-native Japanese speaker who carries a safety knife for work does not tie him to the crime. Neither does Morie's testimony that she spoke to a man, who was likely Miller, on the flip phone that she found when she called the person listed numerous times on the call history. Indeed, this ties Kato to the crime, because it was Kato who returned to the area a short time later to retrieve her cell phone.
The majority states that Kato's proffered evidence "had a tendency" to connect Miller to the crime "either directly or circumstantially[.]" Majority 147 Hawai'i at 494, 465 P.3d at 941. To the extent that the defense connected Miller to the crime, it was only by Kato's proffered evidence regarding Miller's alleged motive rather than other evidence that was presented.
No witness was able to identify any distinctly male characteristics, such as facial hair or an Adam's apple. CW initially told police that her attacker was a man, based solely on body type. CW later told Det. Nakama, without prompting, that it could have been a woman. Morie described the suspect as a "boy" based on the fact that the suspect's build was similar to her son's, who has "small buttock" and is "skinny." The other eyewitness also described the suspect as a man based on build and admitted that it could have been a woman.
No witness who saw the suspect ever said that the attacker was Caucasian and CW emphatically denied ever saying that her attacker was a Caucasian man. The fact that a police officer with no firsthand knowledge thought he heard CW say in English that it was a Caucasian man is of little value, given that English is not her native language. CW described the attacker as Asian with brown skin but described Miller as "white."
CW testified that the attacker was no more than ten centimeters taller than her, and that CW herself is 157 centimeters. By CW's own estimate, then, her attacker was about 5’5" tall. See Office of Weights and Measures, Approximate Conversions from Metric to U.S. Customary Measures, https://www.nist.gov/pml/weights-and-measures/approximate-conversions-metricus-customary-measures. CW testified that she provided a police officer with the attacker's height in centimeters and the officer converted it himself. The majority misstates CW's testimony and implies that CW knew that the officer converted the attacker's height to 5’9" and agreed to that conversion. See Majority 147 Hawai'i at 483, 465 P.3d at 930.
CW testified that she did not believe that Miller was the attacker because his "physical shape is completely different." In contrast to her shorter attacker, CW testified that Miller was thirty centimeters taller than CW and she had to look up to Miller. The other two witnesses at the scene saw the attacker from a distance and estimated the suspect's height as between 5’6" and 5’8".
The fact that Miller admitted that he carries a safety knife for work does not "indicate[ ] his access to and familiarity with knives[,]" as the majority speculates. See Majority 147 Hawai'i at 494, 465 P.3d at 941. Any person who cooks, hunts, or fishes would have the same level of familiarity with knives as Miller. This wild inferential leap by the majority underscores the dearth of evidence tying Miller to the crime.
The majority concludes that "Kato established her suspicions that Miller arranged to have her near the crime scene through the note she believed he had written." Majority at 147 Hawai'i at 494, 465 P.3d at 941. The fact that Kato herself told her roommate a story about a letter that no one else ever saw which purportedly directed Kato to the crime scene does not connect Miller to the crime. Like the lost cell phone, it only ties Kato to the crime.
The majority also speculates that the fact that Kato returned to the crime scene to retrieve her phone, after Miller told Morie that he would retrieve it, "gives rise to a strong inference that Miller was in direct contact with Kato shortly after the CW was stabbed." Majority at 147 Hawai'i at 494, 465 P.3d at 941. However, this ignores a more obvious possibility: Kato realized that her phone was missing and returned to the last place she had been to retrieve it. This explanation seems even more likely in light of the fact that when Kato retrieved her phone from Officer Ellis, she lied about her identity — using the name of her roommate — and lied about when she lost the phone, saying that it was lost about 5:00 p.m., even though she told her roommate she lost it about 9:00 p.m.
After the circuit court noted that there was no evidence connecting Miller to the crime charged, the circuit court repeatedly asked the defense to proffer evidence other than motive that connected Miller to the crime. In response, defense counsel recited only the testimony that he hoped to elicit regarding Miller's alleged motive. Accordingly, the circuit court ruled that Kato had not established a sufficient connection between Miller and the crime to introduce evidence of Miller's alleged motive.
The majority cites defense counsel's argument in support of Miller's alleged motive, which the majority claims meets the legitimate tendency test, even though Miller testified to the contrary on several points and no other witness testified to these matters. See Majority at 147 Hawai'i at 494, 495–96, 465 P.3d at 941, 942–43. For example, Miller testified at the first Rule 104 hearing that (1) Miller and CW never spoke about marriage; (2) when CW stopped contacting Miller, he was not angry; and (3) Miller had no knowledge that CW was seeing other men during or after their relationship. The majority also ignores CW's testimony that Miller had no reason to want to harm her.
Because there was no direct or circumstantial evidence connecting Miller to the crime, I would hold that the circuit court did not err in precluding Kato from eliciting evidence of Miller's alleged motive to commit the crime.
I also disagree with the majority's claim that the circuit court and the ICA improperly weighed the evidence offered by the defense. Majority at 147 Hawai'i at 495–96, 497, 465 P.3d at 942–43, 944. As previously noted, the majority misstates the evidence presented regarding the suspect's description. See supra n.29. The majority also relies heavily on defense counsel's argument at the bench, rather than on witness testimony. See Majority at 147 Hawai'i at 494, 465 P.3d at 941. Because the record does not actually contain the evidence that the majority claims Kato adduced or proffered, I disagree with the majority's conclusion that the circuit court and the ICA selectively credited the State's evidence.
III. CONCLUSION
For the reasons stated above, I respectfully dissent. In accordance with our decision in Rabellizsa and HRE Rule 401, I would hold that the circuit court did not err by precluding Kato from offering evidence of Miller's alleged motive to commit the crime because there was no evidence tying Miller to the commission of the offense.
Consequently, I would affirm the ICA's April 18, 2019 Judgment on Appeal, issued pursuant to its March 19, 2019 Memorandum Opinion, and the circuit court's March 11, 2015 Judgment of Conviction and Sentence.