FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
Opinion of the Court by FUJISE, J.
Defendant-Appellant Vicente Kotekapika Hilario (Hilario) appeals from the July 25, 2013 Judgment of Conviction and Sentence for Murder in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-701(1)(c) (Supp. 2016) and Bribery of a Witness in violation of HRS § 710-1070(1) (2014) entered by the Circuit Court of the Fifth Circuit (Circuit Court)
We consider two points of error raised by Hilario.
This case stems from the December 17, 2010 shooting of Aureo Moore (Moore) near the Anahola Beach Park on Kauai. Moore was the complaining witness in a robbery that took place on August 21, 2010, in the parking lot of the Safeway supermarket in Kapa'a (Safeway Robbery). Kyle Akau (Akau), Hilario's friend, was accused of the Safeway Robbery and it was said that Hilario was the driver.
Angienora "Pua" Crawford (Crawford) testified that she was addicted to OxyContin and oxycodone pills and that she knew Moore as a user and a supplier and Hilario as one of her suppliers. On August 21, 2010, between the Kapa'a Safeway and Foodland supermarkets, she saw a male
Crawford also testified that in September through October 2010, Hilario asked Crawford several times, in exchange for pills or money, to testify that the person she saw robbing Moore was not actually the robber.
Crawford testified that, at some point in October or November, Hilario's requests changed from testifying to arranging a meeting between himself and Moore.
On the day before the shooting, Hilario called Crawford, asking her if she wanted more pills, and whether she could bring Moore to "the ABC Store." Crawford told Hilario, "no," they had pills.
The following day, December 17, 2010, Moore called Crawford to ask if she knew anyone who had pills. Knowing that Hilario had pills, she called Hilario, thinking that she could be the "middle man" in the transaction and be able to benefit as a result. At the time, Crawford knew that Moore did not want to meet with Hilario and that Hilario wanted to see Moore, "but not in a nice way." She thought that there would be a talk and perhaps a fight. Ultimately, Crawford agreed to bring Moore to the lookout at Anahola because it was a little more out in the open, there was a lifeguard station there, and it was frequented by campers.
Crawford then called Moore to tell him she was coming; she did not tell Moore she was driving him to meet Hilario. Crawford picked Moore up and dropped him off at the Anahola lookout, where Moore gave her $100 for six pills, and she drove off to meet Hilario nearby.
When Crawford met Hilario, Hilario was wearing a white t-shirt with a dark design or picture on the front and black cargo shorts and was driving a dark-colored Nissan. Hilario gave Crawford five oxycodone pills and refused her money, saying, "No, that's for you." Hilario then told her, "When you leave, just go out the other direction, and if anybody asks, you never saw me."
Crawford followed his instructions and saw that Hilario drove in the opposite direction, towards where she left Moore. While Crawford was driving around Anahola town, she heard sirens and saw emergency vehicles racing by. Later that day, Crawford heard through word-of-mouth that there had been a shooting in Anahola. She did not go to the police until two days later, after she heard the police were looking for her, and did not tell the police about her involvement with a drug transaction or that Hilario had given her pills on that day.
Manaku testified under an immunity agreement that he was a childhood friend of Hilario and was a close friend of both Hilario and Joseph Kainoa Hansen-Loo (Kainoa). Manaku also testified that he helped Hilario collect drug money owed to Hilario. Kyler is Kainoa's younger brother.
Manaku testified that, on December 17, 2010, Hilario, Kyler and Manaku planned to go fishing. Manaku and Kyler were clad only in surf shorts and Hilario was wearing a white t-shirt, surf shorts, black hoodie and slippers.
While sitting on the other side of the guardrail, Manaku heard a loud vehicle drive up and saw a Caucasian male get out of the vehicle and sit near the pine tree. Shortly thereafter, Hilario walked up from behind them,
At one point while they were running, Manaku lost sight of Hilario for ten to twenty seconds, after which Hilario reappeared without the hoodie. Manaku testified that he saw Hilario wrapping up something in what looked like the beanie and throwing it in the water in the "three rocks" area of the beach. A Raven Arms Model P-25 .25 caliber semi-automatic handgun was recovered from the water in this area on December 20, 2010.
Kyler's testimony was broadly consistent with Manaku's, but differed as to the critical facts. He testified that he was six feet or six feet one-inch tall and at trial weighed about 180 pounds. He also agreed that, at the time of the offense, he was taller than Manaku and Hilario. Kyler testified that on December 17, 2010, it was Manaku that wore a black jacket and a beanie, and after Hilario dropped them off at the pull-off and another vehicle left a male, it was Manaku that pulled the beanie over his face, shot the male six times, and threw the gun and beanie into the ocean as they ran away from the scene. According to Kyler, they met up with Hilario close to their fishing spot, when Manaku boasted to Hilario that he "aced that guy" and Hilario looked surprised.
Cheryl Corneal (Corneal) testified that she was setting up her pastele stand on Manai Road when two gunshots from up the road drew her attention and she saw two people running in her direction a few feet before the ironwood tree. The men stopped, one leaned over and shot towards the ground twice, and she could see a person's leg move up, making her realize a person had been shot. The shooter was of medium build, wearing a green or blue plaid shirt with a hoodie, a baseball cap or a long pony tail, and long, dark shorts. The other person was huskier, wearing only dark long shorts. Although she could not see the shooter's face, Corneal knew Hilario and the shooter matched Hilario's general height and weight.
On December 17, 2010, Rusty Kaimipono Brewer Ah Loo (Ah Loo) was standing at the bottom of the hill on Anahola Road adjusting his iPod when he saw two men come out of the bushes near the ironwood tree. Ah Loo testified that he saw one person come out from behind the tree and shoot the other as the latter was running and fell forward, then when the person was on the ground, more shots were fired aimed at the back and head area. Ah Loo heard a total of five shots. Ah Loo described the shooter as "skinny and tall" and wearing a ski mask, a long-sleeved shirt, long pants, and shoes.
Kaimakana Wedemeyer (Wedemeyer) was on duty as a lifeguard on Anahola Beach on December 17, 2010. He testified that he heard five shots, began to scan with his binoculars and saw that the "pastele lady" looked "really alarmed." As he continued to scan up the road, he saw two individuals running up the road; one was a shirtless male, the other looked like a male wearing a green and black hoodie which covered his head. The shirtless individual was facing the other and had his hands raised, as if to say, "what are you doing?" The person with the hoodie had his hands down, as if they were in his pockets. It appeared as if the two were arguing as they ran. Wedemeyer drove his truck up Manai Road and could still see the two individuals running further up the road; when he reached the ironwood tree he saw a male face down and realized the male was a gunshot victim.
On December 17, 2010, Brehden Kamibayashi and Austin Kekoa Alfiler were driving away from the "Crack 14" area of Anahola beach, when they saw three men running; the three men slowed to a walk as they drove by. They next encountered police, who told them the police were looking for people who were running; they told the police what they had seen. When they subsequently were shown a photo lineup by the police, they identified the first of the three as Kyler and the last of the three as Manaku, but could not identify the second person, who was wearing a dark hoodie and looked away from them.
Hilario maintained that as he was driven past where Moore was supposed to be and where he dropped off Manaku and Kyler, he saw "somebody laying there," a couple of trucks parked, and people standing around. He told his driver to continue driving and asked to be dropped off at the dead end of a road in a nearby housing development. From that point, he walked on a path towards the fishing spot at which he expected Manaku and Kyler to be waiting, but met them as they jogged down to meet him. Hilario testified that Manaku admitted to shooting Moore multiple times.
Prior to the trial, the Circuit Court ruled that it would admit an audio recording of Moore's preliminary hearing testimony (Moore's Testimony) regarding the Safeway Robbery. Moore's Testimony was determined to be relevant to the instant case because Moore was murdered ten days before trial for the Safeway Robbery was scheduled to begin, and Hilario was aware of the content of Moore's Testimony because Hilario was present at the preliminary hearing.
The audio tape of Moore's Testimony was played for the jury. The jury was instructed that information in Moore's Testimony could not be used to conclude that Hilario was of bad character and therefore more likely to have committed the charged crimes. Moore's Testimony included statements that he saw Hilario drive to the Safeway parking lot, where Akau exited Hilario's vehicle. Several days after Moore's Testimony was played for the jury, the Circuit Court ruled that it would allow evidence of the contents of the backpack found with Akau when he was arrested on August 24, 2010, three days after the August 21, 2010 Safeway Robbery. However, the Circuit Court decided that only evidence connecting Hilario to the Safeway Robbery, and thereby relevant to motive, opportunity, intent, and preparation with regard to the instant offenses under Hawai`i Rules of Evidence (HRE) Rule 404(b), would be admitted.
On March 8, 2013, Hilario was convicted of Murder in the First Degree (Count 1), Retaliating against a Witness (Count 3), Intimidating a Witness (Count 4), and Bribery of a Witness (Count 5).
On May 2, 2013, the Circuit Court heard three motions: (1) for a new trial, (2) for judgment of acquittal, and (3) to strike the motion for judgment of acquittal. The Circuit Court denied all three motions.
This appeal followed.
The Circuit Court Erred in Excluding Hilario from All Voir Dire Sidebars.
Hilario moved for a new trial on the basis that he was denied his right to be present under HRPP Rule 43 when he was excluded from sidebars
The interpretation of a court rule is reviewed de novo,
Statutory construction is guided by the following rules:
The rule at issue here, HRPP Rule 43(a), reads the same today as it did during Hilario's trial:
The Hawai`i Supreme Court has long recognized that HRPP Rule 43
With this backdrop, we turn to an examination of the procedure employed by the Circuit Court here. As the Circuit Court explained to the first venire at the beginning of the selection process,
The Circuit Court began by reading a synopsis of the case and the indictment to the venire and announced that matters concerning qualification to serve would be discussed first. The Circuit Court instructed veniremembers to raise their hand, if any of them had an answer they wished to keep private or believed was embarrassing, and they would be allowed to answer at the bench. Although the initial questions pertained to qualifications for service, veniremembers often raised at the bench instead, or in addition, other topics more accurately characterized as exemptions or excuses from service, such as conflicts in their schedules, claims of hardship, or medical conditions. Occasionally, veniremembers also took the opportunity during these sidebars to raise issues that involved potential bias. These matters were taken up at the same sidebar, with court and counsel conducting an examination of the veniremember.
Eventually, in open court, the Circuit Court also asked veniremembers if they had heard or read anything about the case, had religious reasons or any other unwillingness to sit in judgment of a person, were unable to apply the reasonable doubt standard, had prior experience as a witness, knew or had relationships with any of the parties or potential witnesses, or had any contacts with law enforcement, or any other reason they could not be fair and impartial. If jurors raised their hand indicating an issue, a sidebar was then typically held with the juror.
At the bench, the Circuit Court took the lead in questioning but counsel also examined, or were given the opportunity to examine, the veniremember at each of the sidebars. This procedure was followed throughout the remainder of the eleven-day jury selection process, continued during general voir dire, and during further examination as a result of peremptory challenges.
With this understanding of the procedure actually employed, the question becomes whether it was a violation of HRPP Rule 43 to exclude Hilario from these sidebar examinations of veniremembers. We conclude, on these facts, that it was.
The plain language of HRPP Rule 43 supports this conclusion as it requires that the defendant be present "at every stage of the trial including the impaneling of the jury." It is true that Hilario was in the courtroom when these sidebars were held. However, as his counsel argued before the Circuit Court,
Given the combination of rights the rule was designed to preserve, a defendant's physical presence in the courtroom, without the ability to hear what is said or observe the facial expressions of the persons being examined during these proceedings would frustrate the purpose of the rule.
Although Hawai`i courts have not specifically examined the exclusion of defendants from sidebars during jury selection, a number of federal courts have weighed in, ruling that, upon request, FRCP Rule 43 requires defendant's presence at sidebars or in camera examinations.
As a preliminary matter, because the right to be present under FRCP Rule 43 is not absolute, federal courts have required a specific request to be included, or an objection to being excluded, from sidebars; the failure to invoke the right results in a waiver.
Here, the potential impact on Hilario's ability to participate in jury selection was substantial. It appears that nine of the twelve jurors who were ultimately selected for service were examined at a sidebar and six of the nine participated in more than one sidebar.
This does not end our inquiry, as violations of HRPP Rule 43 are analyzed under a harmless error standard, where we determine "whether there is a reasonable possibility that the error complained of might have contributed to the conviction."
We have considered the accommodation provided by the Circuit Court here, allowing Hilario's counsel to consult with him about the substance of the sidebars.
Nor can we say that the evidence presented at trial was overwhelming.
The Circuit Court's Admission of the "Safeway Robbery" Evidence Did Not Violate Hilario's Right to a Fair Trial.
In his second point of error, Hilario challenges the presentation of "the preliminary hearing testimony of Moore and others in Cr. No. 10-1-0285" to the jury in this case. In his argument in support, Hilario points to other evidence— "prescription bottles recovered from Moore, the arrest of Akau, the search of his backpack and the arrest of Hilario and the search of his person" as improperly admitted during trial.
"`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." HRE Rule 401. Hilario was charged, not only with Moore's murder as a witness against Hilario, but with retaliating against Moore for that testimony, intimidating Moore to influence future testimony, and bribing Crawford to influence her testimony or to induce her not to give testimony in a future proceeding. Evidence of "other crimes, wrongs, or acts" is admissible to prove, among other things, motive, intent, or knowledge. HRE Rule 404(b).
First, in the audio tape of Moore's Testimony, Moore identified both Hilario and Akau, who were present in court, described Hilario and Akau's involvement in the Safeway Robbery, including Hilario's presence in the driver's seat of a "smoky gray" Nissan in which Akau was a passenger while in the Safeway parking lot, and Akau's use and threatened use of a .22 handgun to coerce Moore's surrender of money and Akau's physical taking of Moore's prescription medications from Moore's pocket. This evidence was relevant to establishing that Moore was a witness in a criminal proceeding, and that Hilario knew Moore was a witness against him and Akau. Moore's Testimony regarding the facts underlying the Safeway Robbery charge was also relevant to establishing the seriousness of the crime and extent of Hilario and Akau's involvement, which in turn supported the strength and existence of a motive and intent to commit the offenses charged in this case.
In addition, evidence of Hilario and Akau's arrests along with the contents of the backpack recovered during Akau's arrest, are similarly relevant to the intent and motive for the charged offenses here. The arrests of Akau and Hilario, as they came three days after the Safeway Robbery and involved Hilario driving what appeared to be the same vehicle used as transport to the Safeway Robbery, supported what Moore himself could not directly testify to, that Hilario was the driver for the pair's activities. More important was the testimony describing what was recovered when Akau was arrested: a backpack containing the possible weapon used in the Safeway Robbery, pills of the same kind taken from Moore, and items bearing Hilario's name, tying him to the gun and drugs, and therefore the robbery. Again, this evidence was relevant to Hilario's motive and intent to commit the murder, intimidation, and retaliation against Moore.
Thus, we agree with the Circuit Court that this evidence was relevant.
As the Commentary to HRE Rule 404(b) observes, "[w]hen offered for the specified purposes other than mere character and propensity, however, `other crimes, wrongs, or acts' evidence may be admissible provided the Rule 403 test is met." Rule 403 provides that relevant evidence "may be excluded if its probative value 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." In weighing the probative value of the evidence against the possible prejudicial effect, we consider
Here, the evidence of Hilario and Akau's involvement in the Safeway Robbery was strong. The complaining witness, Moore, had seen both men and could identify them and the possible fruits of and weapon used in the crime were found with the men three days later. Crawford saw the Safeway Robbery and knew Moore well, so could identify him and corroborate part of his testimony. Although four months elapsed between the Safeway Robbery and the shooting in this case, Crawford testified that during that interval Hilario contacted her on numerous occasions to set up a "meeting" with Moore. There was great need for this evidence as it provided the motive and evidence of intent for the instant offenses. There was no alternate proof, as Moore was dead and while Crawford testified that she saw the Safeway Robbery being committed, she did not know who Akau was and could not testify to what was said between Moore and Akau or whether the crime had been completed.
Finally, the evidence would not have "roused the jury to overmastering hostility" as they were well aware that the Safeway Robbery was alleged to have been the reason for the charged offenses. In addition, limiting instructions were given before the jury heard the audiotape of Moore's Testimony and before the testimony of each of the two arresting officers was given. The jury was instructed that information in Moore's Testimony could not be used to conclude that Hilario was of bad character and therefore more likely to have committed the crimes he was charged for in the instant case. It is presumed that the jury will follow the court's instructions.
Based on the foregoing, we vacate the July 25, 2013 Judgment of Conviction and Sentence entered by the Circuit Court of the Fifth Circuit and remand this case for proceedings consistent with this Opinion.
The jury also found Hilario guilty of Retaliating Against a Witness and Intimidating a Witness. These counts were merged with his conviction for Murder in the First Degree for purposes of sentencing.
Hilario's objection was made before any of the sidebars with jurors eventually empaneled were had.
We also note that video recordings of proceedings in this case included sidebars as copies of those recordings have been included in the record before us. However, it appears that the perspective captured by the camera is from the gallery to the bench and consequently does not reveal the veniremember's face during the sidebars.
In any event, based on the lack of specificity in the description of the evidence challenged, we presume Hilario refers to testimony establishing the fact of the arrests and the items he names in his argument that were recovered from the backpack seized with Akau. He does not specify what evidence he challenges arising out of the search of his person upon his arrest. Therefore, we decline to address it.
The Rule 404 Commentary states, "The specific items listed in the rule as possible relevant facts justifying admissibility are illustrative of the various situations in which common law courts have admitted this kind of evidence."