State v. Williams

149 Hawai‘i 381

491 P.3d 592

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

v.Matthew K. WILLIAMS, Petitioner/Defendant-Appellant.

SCWC-16-0000630

Supreme Court of Hawai‘i.

JUNE 30, 2021

Eric A. Seitz, (Della Au Belatti, Gina Szeto-Wong, Jonathan M.F. Loo, and Kevin A. Yolken, Honolulu, with him on the briefs) for petitioner/defendant-appellant

Sonja P. McCullen, Honolulu, for respondent/plaintiff-appellee

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ. AND CIRCUIT JUDGE CHANG, FOR POLLACK, J., RECUSED

OPINION OF THE COURT BY WILSON, J.

Petitioner/Defendant-Appellant Matthew Williams ("Williams") was convicted of four counts of sexual assault following a jury trial. At trial, the prosecutor introduced to the jury incriminating statements, allegedly made by Williams, without previously disclosing them to the defense during discovery as required by Hawai‘i Rules of Penal Procedure ("HRPP") Rule 16(b)(1) (2016).¹ The prosecutor also introduced statements, incriminating to the defendant, allegedly made by the complaining witness despite the court's motion in limine ruling barring their introduction. Finally, the prosecutor engaged in improper, unnecessarily lurid questioning of defense witnesses to inflame the passions of the jury. The cumulative impact of the prosecutor's misconduct deprived Williams of a fair trial and was, therefore, not harmless beyond a reasonable doubt.

I. BACKGROUND

A. Indictment and Pretrial Proceedings

Williams was indicted on April 9, 2014, on one count of sexual assault against a minor in the first degree, in violation of Hawai‘i Revised Statutes ("HRS") § 707-730(1)(c) (2014),² and three counts of sexual assault against a minor in the third degree, in violation of HRS § 707-732(1)(c) (2014) in the Circuit Court of the First Circuit ("circuit court").³ Prior to trial, the government notified the defense in writing of its intention to call Alexander J. Bivens, Ph.D. ("Dr. Bivens") as an "expert witness on the dynamics of sexual abuse to the incident for which [Williams was] charged." By letter dated October 20, 2014, the defense requested, pursuant to HRPP Rule 16(b)(1)(iii),⁴ that the prosecutor provide the defense with a report containing Dr. Bivens’ conclusions and opinions, notes and/or records of what he had reviewed and done in this case, and pleadings and orders in other cases in which Dr. Bivens had testified or served as an expert witness. In response, the prosecutor provided the defense with over 500 pages of articles consisting of the studies and literature Dr. Bivens would be relying upon for his expert testimony. The defense filed a motion to compel discovery or, in the alternative, to exclude testimony of Dr. Bivens, on the basis that the prosecutor failed to provide the defense with a written report from Dr. Bivens in accordance with Rule 16(b)(1).⁵

Williams filed two motions in limine on January 20, 2016 to exclude the testimony of Dr. Bivens and to exclude testimony from the complaining witness, T.Y., consisting of out-of-court statements that Williams sexually assaulted him.

The circuit court held a hearing on Williams’ motions in limine on April 11, 2016.⁶ The court denied the defense's motion as to Dr. Bivens’ testimony, but granted the motion as to the alleged out-of-court statements T.Y. made to S.S. and C.O., T.Y.’s friends from school. The court stated that T.Y.’s alleged statements would be excluded and "[u]nless the government can come up with a hearsay exception, we litigate the matter outside the presence of the jury" and the court would "generally" not allow the statements. In seeking clarification, the prosecutor asked the court, "[w]ith respect to the actual statements made, will the court permit these witnesses to testify to any changes in behavior that these witnesses observed in their friend?" The trial judge responded, "I think that they can testify to what is relevant in terms of what they saw and -- what they saw and heard, not meaning statements."

The prosecution filed its witness list and amended witness list, which did not identify the subject matter to which the prosecution's witnesses would be testifying; at no time prior to trial did the prosecutor disclose to the defense Williams’ out-of-court oral statements to T.Y.’s father ("C.Y.").

Williams identified eleven witnesses in his filed witness list that included himself, his wife, his two children, six non-family character witnesses to testify as to Williams’ "nonviolent and non-aggressive character, honesty and integrity" and "the absence of any indications of sexual deviancy or behaviors that are consistent with the allegations against him," and one non-family witness to testify as to her observations of T.Y. Of the eleven witnesses listed by the defense in its witness list, in addition to the defendant, the court permitted six witnesses to testify. Of those six witnesses, three were the defendant's family members and three were non-family members, including two non-family character witnesses. The four excluded witnesses were all male non-family character witnesses.

B. Trial Proceedings

1. Opening Statements

Several times during her opening statement, the prosecutor referenced out-of-court communications T.Y. allegedly had with his friends. The defense initially objected on the grounds of hearsay and that the statements were precluded by the defense's motion in limine:

[DEFENSE]: Judge, these are the alleged statements to two of his friends which you said is [sic] not coming in.

[PROSECUTOR]: I'm not going into the contents of the statement, your Honor. I'm just going to say that he talked to two of his friends. That's it.

THE COURT: Okay.

[DEFENSE]: Well, talked about what? I mean, it's irrelevant if he talked to his friends. And tell them what? It's basically suggesting something that she can't go into and we can't go into.

[PROSECUTOR]: I'm not bringing in -- even with the witnesses, when they testify on the stand, they're very aware that they're not to go into what [T.Y.] told them, the exact statement. I'm just going to say that he disclosed to two friends.

[DEFENSE]: Disclosed what?

[PROSECUTOR]: What this man did to him.

[DEFENSE]: Judge, that's absolutely forbidden.

THE COURT: How are you going to say it, he talked to two friends?

[PROSECUTOR]: That he told two close friends what this man did to him.

THE COURT: Okay. Hearsay involves actual statements.

....

THE COURT: But their argument is that it comes very close to suggesting to the jury that he told them exactly what happened. I think you can -- I think you can put forth, if you're going to bring it out, that he talked to two friends --

[PROSECUTOR]: Okay. About the incident.

THE COURT: -- but that's about it.

[DEFENSE]: Judge, I object. It still creates an inference that he talked to them about this event, and we can't examine him without opening the door. And she should not be allowed to. Talked to them about what?

THE COURT: Your objection is preserved. Let's move on.

Several minutes later, the prosecutor again referenced out-of-court communications T.Y. allegedly had with his friend, S.S., via a disappearing message on a computer application:

One of [T.Y.’s] friends will tell you about how she and [T.Y.] sat in [T.Y.’s] room the night she learned about what happened. She will tell you how [T.Y.] could not look at her, how [T.Y.] could not say what happened. He could only write it, and write it he did. Using his computer, he sent her a message.

The defense objected, this time alleging that the prosecutor had not previously disclosed the statements to the defense during discovery, as required by HRPP Rule 16(b)(1).⁷ During a bench conference, the prosecutor stated, "we don't have [the message] either. It's one of those messages that disappears. It's like through social media but I guess it just disappears after you log off, so we don't have it either. I don't know the contents of the message."⁸ The court sustained the objection in the presence of the jury and instructed, "Ladies and gentlemen, the last assertion by the State about an alleged computer message is stricken from the record. You will disregard it."

The defense denied that any sexual contact occurred between T.Y. and Williams. The defense contended that the charges were based on fabrications T.Y. made up in retaliation against Williams’ minor daughter, J.W., for rejecting his romantic interest in her. The defense stated that J.W., who was two years older than T.Y., "had moved on" and that T.Y.’s and J.W.’s friendship had ended. According to the defense, because there was no physical evidence or other witnesses, the case boiled down to credibility: whether the jury believed Williams or T.Y.

2. Dr. Bivens’ Expert Witness Testimony

The State's expert witness, Dr. Bivens, is a licensed clinical psychologist with a private practice on Kaua‘i. Before testifying, Dr. Bivens was informed that T.Y. was male and in his early teenage years, but attested that "[o]ther than that ... I don't know anything else about anything that's been alleged or anything about this particular case." Dr. Bivens testified that victims of sexual abuse who are under the age of sixteen typically do not disclose the abuse "for a very long time," a concept known as "delayed reporting." Dr. Bivens explained that many of these victims do not want to disclose abuse due to "embarrassment and shame," "fear of harming the people around them" such as upsetting their parents or getting the abuser in trouble, fear of being blamed, or fear of losing the relationship with the abuser. Dr. Bivens testified that male children in particular may delay reporting out of "concern that they might be accused of being gay or be teased for being gay[,]" and often have "the most difficult time disclosing [sexual abuse]."

3. Previously Barred and Undisclosed Testimony

At trial, T.Y. testified that Williams sexually abused him on two occasions: the first incident occurring on or about March 9, 2012 to and including March 26, 2012; and the second incident...