State v. Kiese

126 Hawai'i 494

273 P.3d 1180

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Jason KIESE, Petitioner/Defendant–Appellant.

No. SCWC–29792.

Supreme Court of Hawai‘i.

March 29, 2012.

Taryn R. Tomasa and Kirsha K. M. Durante, Deputy Public Defenders, for petitioner/defendant-appellant.

Stephen Tsushima, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, and McKENNA, JJ.

Amended Opinion of the Court by McKENNA, J.¹

We hold that although the ICA correctly held that there was sufficient evidence to sustain Petitioner/Defendant–Appellant Jason Kiese's ("Kiese") harassment conviction, it erred in not addressing the family court's failure to stay Kiese's sentence pending appeal based on the mootness doctrine because the public interest exception to the mootness doctrine applies.

We further hold that Kiese, as a petty misdemeanant on bail, pursuant to Hawai‘i Revised Statutes ("HRS") §§ 804–4(a) and (b) (Supp. 2001), State v. Ortiz, 74 Haw. 343, 845 P.2d 547 (1993), and State v. Miller, 79 Hawai‘i 194, 900 P.2d 770 (1995), was entitled to a continuance of bail as a matter of right pending appellate review, and the family court was without jurisdiction to execute Kiese's sentence. The family court therefore erred by denying Kiese a stay of his petty misdemeanor sentence pending appeal.

Kiese's other points are unpersuasive, and we hold that the ICA did not err (1) in concluding that, even if the prosecutor's line of questioning was improper, the family court is presumed to have disregarded it; and (2) by making presumptions about nonresponses on the record to sustain the conviction.

Although we accepted certiorari to address the stay of sentence issue, because we uphold the conviction and because Kiese has already served his probationary sentence, we affirm the ICA's judgment on appeal, which affirmed the family court's judgment of conviction and sentence.

I. BACKGROUND

Kiese was charged by Complaint with one count of harassment, in violation of HRS § 711–1106(1)(a) (Supp. 2008).² The prosecution stemmed from an incident in which Kiese allegedly slapped his six-year-old son ("Minor") in the face once with an open hand and struck him with a thin bamboo rod on the buttocks, arms, and hands multiple times. After a bench trial, the family court found Kiese guilty as charged and denied his motion to stay his sentence pending appeal. The ICA affirmed the judgment of conviction and concluded that the family court's denial of his stay was erroneous but moot. State v. Kiese, No. 29792, 2011 WL 682258 (App. Feb. 25, 2011) (mem.) at 20. What follows is a brief history of this case.

A. Competency Hearing

Before trial commenced, the Minor was called to the stand to determine whether he was competent to testify. During the competency hearing, the Minor's responses were frequently noted as "not audible" in the trial transcripts. The Minor often gave non-verbal answers to questions posed by the prosecutor and defense counsel, shaking his head, nodding his head, and shrugging his shoulders. The court, prosecutor, and defense counsel interpreted the Minor's gestures for the record, when there was apparently no verbal response or even immediately following a verbal response consistent with the gesture. No objections were raised to the court's, prosecutor's, or defense counsel's interpretations.

After cross-examining the Minor, however, defense counsel challenged the Minor's competency based on these gestures by saying, "Competency, Your Honor, again, goes beyond whether or not the Minor can answer yes or no questions. Sometimes he's shrugging his shoulders. Sometimes he's nodding his head, Your Honor. He has to be able to state in sentences what transpired." The family court responded, "He needs to communicate effectively." Although the family court remarked that the Minor presented a "borderline case," he ultimately found the Minor competent to testify.

The Minor was then administered the oath, with no audible response to the oath registering in the trial transcripts, but with the clerk administering the oath stating, "Okay. Thank you," to the Minor. Defense counsel did not object.

B. Trial

During the trial itself, the court, prosecutor, and defense counsel continued explaining the Minor's gestures for the record. There were no objections as to any interpretation of the Minor's gestures.

Because the Minor was not very verbal, the State elicited some of his testimony as follows, referring to prior conversations among the Minor, prosecutor, and defense counsel:

Q: (By the State): Okay. [Minor], do you remember talking to [defense counsel] and myself earlier today?

A: (By Minor): Not really.

Q: Not really. You don't remember talking to us?

A: (No audible response).

Q: Okay. So you don't remember telling us that Daddy hit you with a stick?

A: (No audible response).

Q: Wait, okay. [Minor], do you remember telling me that Daddy hit you with a stick?

A: (No audible response).

Q: So do you remember?

(By the State): Your Honor, if the record will reflect the witness nodded his head.

THE COURT: Yes.

Q (By the State): Okay. And when you told us that Daddy hit you with the stick, do you remember telling us that Daddy hit you to the face with a stick?

(By Defense Counsel): Objection, Your Honor. Move to strike, hearsay statement, out of court.

(By the State): Your Honor, it's obvious—it's a prior consistent statement. I'm trying to lay the foundation to bring in another witness to—well,—

THE COURT: Objection is sustained.

Rephrase.

(By the State): Okay.

THE COURT: Keep it short.

Q (By the State): [Minor], do you remember telling me that Daddy hit you with a stick?

A: (No audible response).

Q: Yes. Okay.

Your Honor, may the record reflect the witness has nodded.

THE COURT: Yes.

Q (By the State): Do you remember telling us that Daddy hit you to the face?

(By Defense Counsel): Objection, Your Honor. Move to strike. Same, hearsay, out-of-court statement.

THE COURT: Overruled.

Let the record reflect the witness was nodding his head up and down.

Q (By the State): Okay. Do you remember telling us that he hit you to the face with a stick?

(By Defense Counsel): Objection, Your Honor. Move to strike.

THE COURT: Overruled.

(By the State): Again, Your Honor, prior consistent statement.

THE COURT: Same grounds.

And the same, the record will reflect that the witness was nodding his head up and down.

Q (By the State): Okay. So right now, when you were sitting there you told us that Daddy hit you with a stick to the arms and to the butt, right?

A: (No audible response).

Q: Okay. Is that a yes?

A: (No audible response).

Q: Yes. Okay.

May the record reflect that the witness has nodded his head.

THE COURT: Yes.

....

Q (By the State): Okay. But do you remember telling [prosecution and defense counsel] earlier that [Kiese] did [hit you with a stick to the face]?

A: (No audible response).³

Q: Yes?

A: (No audible response).

By the State: Your Honor, if the record will reflect the witness is nodding his head.

THE COURT: The record will so reflect.

....

Q (By the State): Do you remember telling me earlier that he hit you about two times on the arm?

(By Defense Counsel): I'm going to raise objections, Your Honor. It's an out-of-court statement. It's hearsay.

A: No.

Q (By the State): No, you don't remember saying that?

A: (No audible response).

....

Q (By the State): And how many times did Daddy hit you to the face?

A: Two or one.

Q: Two or one. Okay. Do you remember telling me that it was two to three times—

(By Defense Counsel): Objection, Your Honor. Leading. Witness has answered in court two to one times and it's an out-of-court statement.

THE COURT: Overruled. You'll have your chance.

The Minor further testified that, on the day in question, he misbehaved at school and his father scolded him, hit him on the face, and spanked him four or five times with a small stick on the hands and butt. He also testified that when his father hit him, it hurt, and he cried.

The State then called Honolulu Police Officer Lordy Cullen, who testified that, on the day after the alleged incident, he was called to Minor's school for a physical abuse case, and noticed red marks across the Minor's arm, hand, and face. Photographs of the red marks were entered into evidence. Officer Cullen testified that, when asked, the Minor stated that all of the marks resulted from his father spanking him with a yellow stick.

The State then called Ayako Kiese ("Ayako"), Kiese's wife, who testified that she had told Kiese that the Minor had been "too playful" at school for the three days preceding the incident. She testified that she did not witness the incident because she had come home after it had happened, and the Minor was in his room in a time-out, possibly crying or having finished crying. She testified that she did not see the Minor that night but that the next morning, she saw marks on the Minor's hands. She testified the Minor told her that he got the marks when his father spanked his butt while he tried to cover his butt with his hands. Ayako testified that Kiese later told her that he spanked Minor with a futon stick, which Ayako described as very thin and measuring eighteen to twenty-four inches long.

Kiese decided to testify and was the only defense witness. He testified that the Minor had misbehaved at school in the days before the incident. After the first day of misbehavior, Kiese told the Minor that if he continued misbehaving, Kiese was going to spank him. Kiese stated that he also took away the Minor's X-box, snack, and TV privileges.

Kiese testified that the next day, Ayako told him that the Minor spit in the cafeteria, wrestled with other kids, and was not listening. Kiese testified that, at first, the Minor claimed his friend did all of those things, and that he was disappointed because the Minor was lying. He admitted that he slapped the Minor once on the face, but not hard, "because [Minor is] just a kid," and that the Minor's head moved back a little bit. After the slap, Kiese testified, the Minor...