State v. Mundon

129 Hawai'i 1

292 P.3d 205

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

v.James MUNDON, Petitioner/Defendant–Appellant.

No. SCWC–10–0000101.

Supreme Court of Hawai‘i.

Dec. 5, 2012.

Stuart N. Fujioka, for petitioner.

Charles A. Foster, for respondent.

NAKAYAMA, Acting C.J., ACOBA, McKENNA, and POLLACK JJ., and Circuit Judge NISHIMURA, in place of RECKTENWALD, C.J., Recused.

Opinion of the Court by ACOBA, J.

We hold, that the Circuit Court of the Fifth Circuit (the court)¹ erred by permitting Respondent/ Plaintiff–Appellee State of Hawai‘'i (Respondent) to introduce evidence of acts allegedly committed by Petitioner/Defendant–Appellant James Mundon (Petitioner) for which a jury had acquitted him in a prior trial. The introduction of such evidence violates the principle of collateral estoppel embodied in the double jeopardy clause of article I, section 10 of the Hawai‘i Constitution. Because of the likelihood of retrial, we also hold that the court (1) did not err in denying Petitioner's discovery request because any error was harmless, (2) did not improperly limit Petitioner's cross-examination by sustaining Respondent's objection to Petitioner's question regarding whether he "released" the complaining witness (hereafter Complainant) for purposes of the kidnapping offense, (3) erred in allowing Respondent and witnesses to use the term "victim" in their testimony, but that any such error was harmless and (4) erred by using information not provided to Petitioner as a basis for determining Petitioner's sentences.

For the reasons stated herein, we (1) affirm Petitioner's convictions for two counts of Assault in the Third Degree, (2) vacate his convictions for Attempted Sexual Assault in the First Degree and Kidnapping, and (3) vacate the court's sentence on Petitioner's convictions for the two counts of Assault in the Third Degree. In that light, we affirm in part and vacate in part the Judgment, Guilty Conviction, and Sentence entered by the court on October 13, 2010; affirm in part² and vacate in part the June 27, 2012 judgment of the ICA filed pursuant to its April 27, 2012 SDO; and remand to the court for further proceedings consistent with this opinion.

I.

A.

On August 15, 2005, Respondent filed a twenty-eight-count indictment against Petitioner, all stemming from alleged incidents occurring on the evening of February 4, 2004, and the early morning of February 5, 2004. In his first trial, Petitioner represented himself, with stand-by counsel. On the charges, Petitioner was acquitted of all four counts (counts 1, 2, 3, and 22) of Sexual Assault in the Third Degree³ (Petitioner's hand on Complainant's genitals), all five counts (counts 5–9) of Sexual Assault in the Third Degree (Petitioner's hand on Complainant's breast), all twelve counts (counts 10–21) of Sexual Assault in the Third Degree (Petitioner's mouth on Complainant's breast), one of two counts of Terroristic Threatening in the First Degree (TT1)⁴ (count 26), and one count (count 23) of Attempted Sexual Assault in the Third Degree⁵ (Complainant's hand on Petitioner's penis).

Petitioner was found guilty on one count of TT1 (count 4), one count of Kidnapping⁶ (count 24), one count of Assault in the Third Degree⁷ (count 25), one count (count 27) of Attempted Assault in the First Degree,⁸ and one count (count 28) of Attempted Sexual Assault in the First Degree (attempted digital penetration)⁹ .

B.

On certiorari from the first trial, this court concluded that (1) because, in support of the Attempted Sexual Assault in the First Degree charge (count 28), Respondent offered evidence that Petitioner "stuck his hand in the [C]omplainant's underwear and touched her outer labia three times[,]" and "[t]he evidence and the reasonable inferences therefrom established that [Petitioner] made three separate attempts to subject the [C]omplainant to an act of sexual penetration[,]" it was plain error for the court not to issue a specific unanimity instruction advising the jury that all twelve of its members must agree on which of the three acts supported count 28, State v. Mundon, 121 Hawai‘i 339, 350, 352–53, 219 P.3d 1126, 1137, 1139–40 (2009) (hereinafter, "Mundon I ");(2) because the prosecution argued to the jury in support of the two TT1 counts (counts 4 and 26) that there were two separate instances in which Petitioner threatened Complainant with a knife, and no specific unanimity instruction was given to the jury, it was impossible to know whether all twelve jurors agreed that the same underlying act supported the TT1 conviction, id. at 353–55, 219 P.3d at 1140–42; (3) the trial court's denial of Petitioner's motions seeking written transcripts of the preliminary hearing and grand jury proceedings was not harmless beyond a reasonable doubt, id. at 355–58, 219 P.3d at 1142–45; and (4) Petitioner was denied his constitutional due process right to adequately prepare his defense when the trial court proceeded with motions in limine although Petitioner did not have his trial materials and could not properly respond to the prosecution's motions in limine, id. at 358–59, 219 P.3d at 1145–46. This court reversed Petitioner's conviction for the one TT1 count (count 4),¹⁰ and vacated Petitioner's remaining convictions (counts 24, 25, 27, and 28) and remanded the case for a new trial. Id. at 372, 219 P.3d at 1159.

II.

On remand at Petitioner's second trial, the charges were renumbered as follows: count 1—Attempted Sexual Assault in the First Degree, HRS §§ 705–500 and 707–730(1)(a) (renumbered from Count 28); count 2—Kidnapping, HRS § 707–720(1)(d) (renumbered from count 24); count 3—Attempted Assault in the Second Degree, HRS §§ 705–500, 707–711 (renumbered from count 27) (attempted bodily injury to Complainant),¹¹ and count 4—Assault in the Third Degree, HRS § 707–712(1)(a) (renumbered from count 25). In his second trial, Petitioner again represented himself, with different stand-by counsel.

A.

Prior to trial, on March 18, 2010, Petitioner filed a request for discovery of, inter alia, "[a]ny written documents supplied to [Complainant by Respondent] via e-mail, facsimile transmission, and U.S. mail secretly used to study, memorize, rehearse, and prepare her material trial testimony between February 2004–February 2007[.]" On March 30, 2010, Petitioner made a second discovery request for the same materials. On April 13, 2010, the court filed an order denying Petitioner's request on the ground that correspondence between Respondent and Complainant constituted Respondent's "attorney work product."

B.

Just prior to opening statement, Respondent, referencing Odum v. State, 412 Md. 593, 989 A.2d 232, 244–45 (2010), indicated that it would introduce evidence of all of the acts for which Petitioner had been acquitted in his first trial. Petitioner objected to the admission of such evidence. The court overruled the objection.

At trial, Respondent called, among others, the following witnesses: Complainant, Christopher Ronon (Ronon), Kauai Police Department (KPD) Officers Clyde Caires (Officer Caires), James Rabasa (Officer Rabasa), Rolland Peahu (Officer Peahu) and Jesse Castro (Officer Castro), Lieutenant Sherwin Perez (Lieutenant Perez), and Nancy Wall (Wall).

1.

Complainant testified that she arrived on Kauai from Canada on February 3, 2004. On her second day on the island, she met a man named "Tito" (Felix Guzman) during a bus ride. When she mentioned to Tito that she planned to stay on the beach, he advised her that it was not safe to do so. Complainant and Tito left the bus at a stop near Kapaa. Tito asked Complainant to wait at a bench while he went to see if there was room for Complainant at a nearby hostel.

While waiting, Complainant saw Petitioner pacing near the water with a flashlight. Complainant asked him what he was doing and for the time. Petitioner told her he was fishing, and that it was 10 p.m. Tito returned and related that the hostel was full. Petitioner mentioned that "he had connections [from] his fire inspection job" and that he could get a hotel room for Complainant at a "hugely discounted rate[.]" Petitioner appeared to make some telephone calls. Complainant saw Tito and Petitioner conversing but was unable to hear what they were saying. Complainant advised Petitioner that she was tired and was "just going to snooze where [she] was sitting[.]" Petitioner offered to allow Complainant to sleep in the cab of his truck. Complainant awoke to find the truck moving; Complainant had "no idea" where she was and Tito was not in the truck. When she inquired regarding Tito's whereabouts, Petitioner informed her that he had given Tito forty dollars and instructed him to go ahead and secure a hotel room.

Complainant and Petitioner eventually ended up at an "open area." Petitioner told Complainant that the hotel "was in the distance" and that Petitioner was supposed to flash his lights and Tito would come to the truck. Petitioner flashed his lights but Tito did not come. Petitioner exited the truck and told Complainant he was going to look for Tito. After a while, Petitioner returned with "no news of seeing him."

Complainant told Petitioner that she "needed to go pee." Petitioner "ripped off a piece of towel" for Complainant "to wipe with after." Complainant went to use the restroom and returned to the truck, sat in the passenger seat, and tried to fall asleep. Just before she fell asleep, Petitioner told her that they needed to leave. He related that he was going to the other "access part of the hotel" because there may have been some confusion regarding where to meet. Petitioner explained he was frustrated because they had been "waiting too long" and "Tito owed him money."

Complainant told Petitioner she wanted to return to the area where she had slept the previous night and then fell back asleep. When she awoke, they were headed down a bumpy road. The truck stopped and Complainant observed lights to the right side of the vehicle and "bushy" trees to the left; she also heard the ocean in...