State v. Lankford

130 Hawai'i 346

310 P.3d 1047

STATE of Hawai‘i, Plaintiff–Appellee/Cross–Appellant,

v.Kirk Matthew LANKFORD, Defendant–Appellant/Cross–Appellee.

No. 29287.

Intermediate Court of Appeals of Hawai‘i.

May 13, 2011.

Appeal from the Circuit Court of the First Circuit (Criminal No. 07–1–0822).

Jon N. Ikenaga, Deputy Public Defender, on the briefs, for Defendant–Appellant/Cross–Appellee.

Donald L. Wilkerson, on the briefs, for Cross–Appellee.

Donn Fudo, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for Plaintiff–Appellee/Cross–Appellant.

LEONARD, Presiding Judge, REIFURTH and GINOZA, JJ.

MEMORANDUM OPINION

Defendant–Appellant/Cross–Appellee Kirk Matthew Lankford (“Lankford”) appeals from the Judgment of Conviction and Sentence, filed July 31, 2008 (“Judgment”) in the Circuit Court of the First Circuit (“Circuit Court”). ¹ Lankford was convicted by a jury of Murder in the Second Degree in violation of section 707–701.5, Hawaii Revised Statutes (“HRS”),² for his role in the death of a young female Japanese national, Masumi Watanabe (“Watanabe”). Watanabe was last seen by witnesses getting into Lankford's work truck on the morning of April 12, 2007. Lankford was sentenced to incarceration for life with the possibility of parole.

On appeal, Lankford contends that: (1) it was an abuse of discretion and a denial of due process and compulsory process for the Circuit Court to preclude him from calling his accident reconstruction witness, Clyde Calhoun (“Calhoun”), on surrebuttal; (2) defense counsel's failure to call an accident reconstruction witness during Lankford's case-in-chief constituted ineffective assistance of counsel; (3) the Circuit Court plainly erred by failing to instruct the jury regarding the definition of “crime;” (4) the jury instructions were prejudicially erroneous and misleading because they failed to specify that the state of mind elements applied to all elements of the omission alternative; (5) the Circuit Court's denial of his motion to continue was an abuse of discretion; (6) the Circuit Court abused its discretion by admitting photographs of his wife; (7) prosecutorial misconduct deprived him of his constitutional right to a fair trial; (8) the jury's verdicts unanimously finding him guilty by omission and commission were inconsistent; and (9) his conviction was not supported by substantial evidence.

Plaintiff–Appellee/Cross–Appellant State of Hawai‘i (“State”) cross-appeals from the Findings of Fact, Conclusions of Law, and Order Taking No Further Action on State's Motion for Sanctions Against Donald L. Wilkerson for Failure to Provide Discovery (“Order Denying Sanctions”), filed September 10, 2008. The State contends that the Circuit Court abused its discretion in not sanctioning defense counsel for his “intentional, willful, and insistent refusal to comply with the court's orders regarding discovery.”

We affirm.

I. BACKGROUND

A. Watanabe's Death

On April 12, 2007, at approximately 9:15 a.m., Watanabe, a visitor from Japan, was dropped off at lower Pûpûkea Road in Pûpûkea, Hawai‘i, by a relative with whom she was staying. Watanabe was dropped off at the same location almost every morning at approximately the same time so that she could get exercise by walking home. The walk home would usually take between 30–40 minutes.

Lankford was a residential pest control treatment technician with Hauoli Termite & Pest Control. That morning, after making a service call on one of his pest control treatment customers, Lankford met Watanabe. It is undisputed that Watanabe died during her encounter with Lankford. The State argued that Lankford murdered Watanabe, while Lankford contended that Watanabe died when she jumped out of his truck as he drove her around the Pûpûkea neighborhood, in search of her home. The following evidence was presented at trial:

B. The State's Case–In–Chief

Two witnesses testified at trial to seeing Watanabe on Pûpûkea Road between 9:20–9:40 a.m. on April 12, 2007, with a man resembling Lankford, who was standing next to a white work truck. One of the witnesses testified that the woman, who appeared “stressed” and “a little bit agonized,” seemed to be waiving away a man who resembled Lankford, and to be saying the word “no.” The other witness testified that she saw the name of Lankford's employer on the work truck, that the man was wearing coveralls, and that she saw the woman climb into the work truck from the driver's side.

Another witness testified to seeing a man, whom he subsequently identified as Lankford, digging a hole at the Kahana Fishpond later that evening at approximately midnight. When the witness questioned him, Lankford hurried to his truck and drove away. The license plate number recorded by the witness traced back to Lankford's work truck.

Additional evidence included testimony from Watanabe's mother, who explained that her daughter was extremely shy and unlikely to willingly get into a stranger's vehicle; photographs showing scratches on Lankford's hands shortly after his arrest, and expert testimony concluding that the scratches were consistent with fingernail marks; testimony that blood matching Watanabe's DNA profile was found in Lankford's work truck on the passenger door panel, the front of the passenger side of the truck, and the driver's side door; and a pair of glasses found in Lankford's work truck matching Watanabe's prescription, from which DNA matching Watanabe's profile was removed.

C. The Defense's Case–In–Chief

Prior to trial, Lankford had denied ever encountering Watanabe. During his case-in-chief, however, Lankford admitted that he had lied to the police, testifying that he accidently “kind of sideswipe[d]” Watanabe, who was walking alongside the road, with his truck after he had turned left from Aukauka Road onto Pûpûkea Road sometime after 9:20 a.m. on April 12, 2007 (“First Incident”).

Lankford testified that he did not report the accident to his employer because he feared losing his job. Instead, he offered Watanabe “a ride to wherever she was going[,]” which she accepted. He had trouble communicating with her, however, as she did not appear to speak much English.

Lankford testified that, after driving through the neighborhood for a period of time, Watanabe became upset and began screaming. Lankford and Watanabe were yelling at each other, with Watanabe apparently not understanding Lankford, and Lankford trying to persuade Watanabe to calm down.

Watanabe “got really quiet.” A moment later, as Lankford drove on Makana Road (lower Pûpûkea) at a speed of approximately 35–40 mph, Watanabe quickly opened the passenger door and dove out of the truck (“Second Incident”). Lankford turned the truck around to look for Watanabe and found her lying on the side of the road with her head “punctured” or “cracked ... open” and “misshapened”. Watanabe did not appear to be breathing and Lankford could not locate a pulse or heartbeat.

Worried that he was going to lose his job, Lankford placed Watanabe's body in the back of his work truck and drove to within view of his next scheduled job site, where he sat, crying and praying. Lankford concluded then to “try to make the whole situation go away[,]” placing Watanabe's head in a plastic bag and moving her body to the big compartment on the passenger's side of the truck cab, which he then closed down and locked.

Lankford completed his second scheduled pest treatment service of the morning, and proceeded to Foodland where he purchased items intended to facilitate his subsequent disposal of Watanabe's body. After completing his assignments for the day, he returned to the office where he cleaned dried blood off the back of his tailgate. Lankford completed his paperwork for the day, called customers for the next day, and headed home.

Lankford took his personal vehicle, picked up his wife and son, and, together, the family went to church for band practice. After band practice, Lankford dropped his wife and son off at home and went to Home Depot where he purchased a shovel, plastic bags, flashlight and duct tape. Lankford then returned to work where his truck with Watanabe's body was parked. He moved the body from his work truck to his personal truck, placed it inside another bag, taped up the bag, and placed the bag containing the body inside yet another bag, which he also taped.

Lankford attempted to bury Watanabe's body that night at Kahana Bay. After being observed and then questioned by a witness as he began to dig a grave, however, he abandoned his plan and put Watanabe's body into the ocean near Kualoa Ranch.

D. The State's Rebuttal Expert

Whether and in what order the parties would present testimony from expert accident reconstruction witnesses was discussed repeatedly with the Circuit Court before and throughout the trial. On January 22, 2008, the Circuit Court found that Lankford had not complied with discovery deadlines, and that special circumstances required that each side be allowed to depose the other's accident reconstruction witness. Lankford's counsel objected, noting that he had not determined whether to present an accident reconstruction witness, having not determined yet whether to present a case at all. Counsel advised that he had instructed his witness, if contacted, not to speak to the State,³ and that if the Circuit Court ordered that depositions be allowed, he would remove the witness from his witness list and present him, if at all, only on rebuttal. The Circuit Court warned Lankford that if he failed to notify the State of his witnesses, he would not be able to call them at trial.

The issue was raised again on February 15, 2008, at the hearing on Lankford's motion to exclude the State's expert witnesses. The Circuit Court denied the motion, noting that whether the State would offer an accident reconstruction expert witness depended on the specific defense that Lankford would offer, and whether he would be calling an accident reconstruction witness.

On March...