State v. Kalili

150 Hawai‘i 219

499 P.3d 419 (Table)

STATE of Hawai‘i, Plaintiff-Appellant,

v.Joshua KALILI, Defendant-Appellee

NO. CAAP-17-0000095

Intermediate Court of Appeals of Hawai‘i.

November 19, 2021

On the briefs:

Kelsi Guerra Deputy Prosecuting Attorney for Plaintiff-Appellant

Myles S. Breiner for Defendant-Appellee

(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant State of Hawai‘i (State ), appeals from the January 25, 2017 Findings of Fact, Conclusions of Law and Order Granting Defendant-Appellee Joshua Kalili's (Kalili ) Motion for New Trial filed on September 8, 2016, by the Circuit Court of the First Circuit (Circuit Court ).¹ Kalili was charged via Indictment with Murder in the Second Degree in violation of Hawaii Revised Statutes (HRS ) §§ 707-701.5 and 706-656 (Count 1 ), and with two counts of Abuse of Family or Household Members in violation of HRS § 709-906(1) and (5) in Counts 2 and 3;² all counts involved child decedent SRB. Following a jury trial on Count 1, the jury reached a verdict finding Kalili guilty of Reckless Manslaughter,³ in violation of HRS § 707-702(1)(a).⁴

On September 8, 2016, Kalili filed a Motion for New Trial. At a hearing on October 26, 2016, the Circuit Court granted the motion. On January 25, 2017, the Circuit Court filed its Findings of Fact, Conclusions of Law (FOFs/COLs ), and Order Granting Kalili's Motion for New Trial (Order Granting New Trial ). The State timely appealed.

On appeal, the State contends the Circuit Court erred in granting a new trial, by: (1) concluding that Kalili's Motion in Limine (MIL ) Number 1 to preclude the testimony of the State's pediatrics expert Dr. Suzanne Starling (Dr. Starling ) should have been granted, in FOFs 3, 4, 5, and 6, and COLs 2, 4, 6, 16, and 17; (2) concluding that evidence of SRB's prior injuries should not have been admitted into evidence absent expert testimony on Battered Child Syndrome, in FOF 10 and COLs 10, 11, 16 and 17; and (3) concluding that the cumulative effect of prejudicial conduct by the State during the trial prevented Kalili from receiving a fair trial, in FOF 15 and COLs 12, 13, 16 and 17.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the State's points of error as follows, and affirm.

FOFs and COLs on the admission of Dr. Starling's testimony

The State contends that the Circuit Court erroneously concluded that Dr. Starling's testimony was improperly admitted at trial. The State argues that none of the following FOFs on this issue are supported by the evidence in the record:

3. In forming her expert opinions and conclusions, Dr. Starling reviewed most, if not all, of the State's case file. This includes the police reports, witness statements and Defendant's multiple statements.

4. A significant portion of the material reviewed by Dr. Starling was inadmissible at trial and also prejudicial.

5. Although the Court allowed the State to call Dr. Starling as an expert witness, it would not allow the State to qualify her as an expert in the area of child abuse.

6. Furthermore, the Court limited Dr. Starling's testimony only to matters of purely medical evidence -- meaning she could not testify as to her review of the police reports, witness statements and Defendant's statements.

In addition, the State disputes the following COLs:

2. The court concludes that the mode of analysis employed by Dr. Starling was possibly tainted by her review of inadmissible and prejudicial non-medical evidence.

....

4. The court concludes that in its attempts to limit Dr. Starling's testimony to only those matters concerning purely medical evidence, it prevented the jury from being able to fully and properly evaluate the matters upon which Dr. Starling based her expert opinion.

....

6. The court concludes that Defendant's Motion In Limine #1 to preclude the testimony of Dr. Starling should have been granted because her expert opinions were based in large part upon irrelevant, inadmissible and prejudicial evidence.

....

16. The court concludes that the combination of: (1) permitting Dr. Starling to testify as an expert witness; and (2) admitting evidence of the decedent's prior injuries without properly founded expert testimony with respect to the Battered Child Syndrome; and (3) the cumulative effect of prejudicial conduct by the prosecution during the trial prevented Defendant from receiving a fair trial.

17. Based on the foregoing, and in the interests of justice, the court grants Defendant's request for a new trial.

(Italics in original). The State's contentions as to these FOFs and COLs are without merit.

On appeal, the granting of a new trial is reviewed for abuse of discretion:

The granting or denial of a motion for new trial is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. It is well-established that an abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant.

Furthermore, at a hearing on a motion for new trial, the trial court acts as the trier of fact.

In this jurisdiction, a trial court's FOFs are subject to the clearly erroneous standard of review. An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed. And where there is substantial evidence, which is credible evidence of sufficient quantity and probative value to justify a reasonable person in reaching conclusions that support the FOFs, the FOFs cannot be set aside. Moreover, an appellate court will not pass upon issues dependent upon credibility of witnesses and the weight of the evidence; this is the province of the trial judge.

A trial court's conclusions of law, however, are reviewed de novo, under the right/wrong standard of review.

State v. Hicks, 113 Hawai‘i 60, 69-70, 148 P.3d 493, 502-03 (2006) (format altered) (internal quotation marks, brackets and citations omitted). A COL that is supported by the trial court's FOFs and "that reflects an application of the correct rule of law will not be overturned." Dan v. State, 76 Hawai‘i 423, 428, 879 P.2d 528, 533 (1994) (internal quotation marks and citations omitted).

As to FOF 3, the State fails to present argument that FOF 3 is not supported by substantial evidence. The State concedes that Dr. Starling reviewed the items described in FOF 3, and essentially disagrees with the Circuit Court's characterization that Dr. Starling reviewed "most, if not all" of the State's case file. FOF 3. The State argues that FOF 3 is clearly erroneous because there was no evidence that "these items constituted the entirety or the majority of the State's case file." On a motion for new trial, the trial court acts as a factfinder, and we do not pass on how it weighed the evidence in its finding. See Hicks, 113 Hawai‘i at 69, 148 P.3d at 502. The record reflects substantial evidence to support this finding, and this argument is without merit.

As to FOF 4, the State similarly challenges the Circuit Court's characterization of the pertinent evidence, and use of the term "significant," arguing: "FOF 4 is clearly erroneous in that it characterizes a significant portion of the materials reviewed by Dr. Starling as ‘inadmissible’ " because "[o]n the contrary, a significant portion of the material reviewed by Dr. Starling was either admitted or deemed admissible" at the MIL hearing and at trial. We do not pass on how the Circuit Court weighed the evidence as the factfinder on a motion for a new trial. See id. The record reflects substantial evidence to support this finding, and this argument is without merit.

As to FOF 5, the State disagrees with how the Circuit Court summarized its own MIL ruling, as not allowing the State to qualify Dr. Starling as an expert in the area of child abuse. This argument is without merit. The State asserts that "[m]ore accurately," the Circuit Court prohibited the State "from eliciting the words ‘child abuse’: from any witnesses," which the State concedes "had the effect of preventing the State from qualifying [Dr. Starling] as such." The State's perception of imprecision in the Circuit Court's finding does not render FOF 5 clearly erroneous. As to FOF 6, which the State acknowledges "is partially correct" but is "clearly erroneous in form and spirit" due to its incompleteness where "only the State was limited and not the defense" -- this argument, based again on the State's perception of imprecision, is without merit. A litigant's disagreement with the factfinder's own summary of its rulings does not render that finding clearly erroneous. See id.

As to COLs 2, 4, and 6, the Circuit Court concluded that Dr. Starling's analysis was "possibly tainted" by her view of inadmissible, prejudicial, non-medical evidence, and noted that the court's attempts to limit Dr. Starling's testimony during trial to "purely medical evidence" only, had the effect of preventing the jury from fully evaluating her expert testimony; the Circuit Court ultimately concluded that Dr. Starling's testimony should have been precluded where her "expert opinions were based in large part upon irrelevant, inadmissible, and prejudicial evidence." The State claims the Circuit Court's COL 2 that Dr. Starling's testimony was "possibly tainted," is erroneous because it "lacks support in the record" and consists of "mere speculation and conjecture[.]" This COL is more accurately an FOF, or a mixed question of fact and law, for which the clearly erroneous standard of review applies. See State v. Rodrigues, 145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019) (a conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is...