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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         15-JUN-2020
                                                         09:41 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                      JOSHUA R.D. WILLIAMS,
                 Petitioner/Defendant-Appellant.
________________________________________________________________

                           SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 12-1-0425)

                               June 15, 2020

                  McKENNA, POLLACK, AND WILSON, JJ.,
   WITH NAKAYAMA, J., DISSENTING, IN WHICH RECKTENWALD, C.J. JOINS

                 OPINION OF THE COURT BY WILSON, J.

                          I.      INTRODUCTION

          Petitioner/Defendant-Appellant Joshua R.D. Williams

(“Williams”) was charged with the attempted murder in the second

degree of David Quindt, Jr. (“Quindt”).

          On certiorari, we conclude the Circuit Court of the

First Circuit (“circuit court”) erred by precluding Williams
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from testifying to the jury about what he believed Quindt said

to him that caused him to act in self-defense.           By so doing, the

circuit court prohibited Williams from presenting state of mind

evidence relevant to his self-defense claim, thus violating his

due process right to be accorded a meaningful opportunity to

present a complete defense.1

                              II.   BACKGROUND

            The attempted murder charge arose from an altercation

between Williams and Quindt on the night of March 12, 2012.               The

primary disputed issue at trial was whether Williams acted in

self-defense.

      A.   Pre-Trial:     Hawaiʻi Rules of Evidence 404(b) Notice of
      Prior Bad Acts

            Prior to trial, Williams filed a Hawaiʻi Rules of

Evidence (“HRE”) Rule 404(b)2 notice of prior bad acts


      1
            Our holding makes unnecessary consideration of Williams’ second
issue, concerning whether Williams waived his initial aggressor claim.
      2
            HRE Rule 404(b) provides:

            Evidence of other crimes, wrongs, or acts is not admissible
            to prove the character of a person in order to show that he
            acted in conformity therewith. It may, however, be
            admissible where such evidence is probative of any other
            fact that is of consequence to the determination of the
            action, such as proof of motive, opportunity, intent,
            preparation, plan, knowledge, identity, modus operandi, or
            absence of mistake or accident. In criminal cases, the
            proponent of evidence to be offered under this subsection
            shall provide reasonable notice in advance of trial, or
            during trial if the court excuses pretrial notice on good
            cause shown, of the date, location, and general nature of
            any such evidence it intends to introduce at trial.




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(“notice”).     Williams sought to present to the jury Quindt’s

statements to him, in which Quindt told Williams about Quindt’s

violent past.     Williams proffered the statements as relevant to

his claim that he feared for his life during the altercation.

The notice stated that “[d]uring the 2-3 week time period prior

to the date of the incident” Quindt would “boast and brag” about

the following seven acts:

          a.      Doing time for the crime of murder in California[;]

          b.      That he did hard time in California;

          c.      That he knows how to fight because of the time he
                  spent in jail and that he had to learn to fight to
                  survive;

          d.      That he knows about gang-bangers and gang-members;

          e.      That he has experience with violence from spending
                  time in jail;

          f.      That he “got away” with murder by beating the charge
                  - because someone else took credit for it;

          g.      That he did the crime but got off on a technicality.

Respondent/Plaintiff-Appellee State of Hawaiʻi (“State”) then

filed a motion in limine, opposing admission of the evidence.

In its motion, the State sought to preclude “an allegation that

[Quindt] has been arrested for murder and was incarcerated on

murder charges” and “[a]ny and all references to David Quindt as

being [a] ‘[h]ard criminal’, ‘gang banger’, or any other similar

references.”     The State contended that “[s]uch evidence is . . .

irrelevant because it does not go to David Quindt’s credibility

as to the instant offense that Defendant is charged with.”



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             At the hearing on Williams’ notice and the State’s

motion, defense counsel explained that the statements included

in the notice “have to do with my client’s state of mind and the

things that were in his head as a result of statements made by

Mr. Quindt that caused him to then be concerned for his personal

safety.     So they go directly to his state of mind.” 3

             The State objected to Williams testifying that Quindt

told him Quindt was convicted of murder.              The State further

objected to Williams revealing to the jury that Quindt claimed

he was subsequently exonerated of murder; according to the State

such evidence would “create a lot of confusion for the jury[.]”

The State argued that it would be too prejudicial and too

confusing to the jury for Williams to present the proffered

statements.

             The circuit court granted the government’s request and

thus prevented Williams from offering his chosen testimony to

the jury.     The circuit court ordered Williams not to testify to

the jury that Quindt would boast and brag about having done time

for the crime of murder in California; nor could he testify that

Quindt would boast and brag about having done hard time in

California; and Williams was precluded from offering in his

defense his eyewitness testimony that Quindt told him “he knows


     3
             The Honorable Karen S.S. Ahn presided.




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how to fight because of the time he spent in jail and that he

had to learn to fight to survive[.]”

             Instead, the circuit court curtailed the testimony the

defendant could offer in his own defense.      As to statement (a),

that Quindt would boast and brag about having done time for the

crime of murder in California, and statement (b), that Quindt

would boast and brag about having done hard time in California,

the circuit court concluded that the statements were “one and

the same.”    Thus, the circuit court prohibited Williams from

telling the jury that Quindt would boast and brag about having

done time for the crime of murder, and Williams was not

permitted to explain to the jury that Quindt told him he did

hard time in California.

             In reference to statement (c), that Quindt “knows how

to fight because of the time he spent in jail and that he had to

learn to fight to survive,” the circuit court did not explain

why it prohibited Williams from informing the jury that Quindt

learned to fight “to survive.”

             As to statement (d), the circuit court ruled that the

defense could not reference Quindt’s familiarity with “gang-

bangers and gang-members” because the statement was “too

general.”    The circuit court rejected defense counsel’s position

that Williams interpreted the term “gangbanger” as “something




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beyond just . . . minor gang activity” but rather as “something

a little bit more serious and involv[ing] more violence.”

            The circuit court also prevented Williams from

offering statement (e), that Quindt “has experience with

violence from spending time in jail.”     The circuit court

concluded without explanation that the statement was “too

general.”   The circuit court did not elaborate as to why

statement (e) was too general.

            The circuit court also excluded as irrelevant

statement (f), that Quindt would boast and brag about getting

away with murder, and statement (g), that Quindt would boast and

brag that he “got off on a technicality[.]”      According to the

circuit court, exoneration “is irrelevant to violent conduct”

because the “question is what [Williams] believed this man could

do.”

            In sum, the circuit court would not permit Williams to

testify fully about what Quindt told him, which Williams

contended caused him to fear Quindt and to use violence to

protect himself.   In place of his proffered testimony about

Quindt’s statements to him, the circuit court ordered Williams

to testify only that Quindt said he was convicted of murder and

that “[Quindt] knows how to fight.     He learned how to fight in

jail.”




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     B.      Circuit Court Proceedings

             A three-day jury trial commenced on January 17, 2013.

             1.   The State’s Case in Chief

             Quindt testified as follows:

             On March 10, 2012, Williams was renting a room from

Quindt.   Williams and his son moved in with Quindt approximately

three weeks prior to the altercation.

             Before the altercation, Quindt felt “tired,”

“exhausted,” and “frustrated.”     His planned tasks for the day

were taking up more time than he anticipated.      Quindt had been

working on a tattoo for Williams that took longer than expected.

Quindt was also scheduled to perform a piercing for a friend of

Williams following the tattoo appointment.      Quindt and Williams

went to Williams’ friend’s house to do the piercing.       On the way

to Williams’ friend’s house, Quindt picked up Williams’ son and

dropped him off at Quindt’s home.

             When they arrived at Quindt’s home, Quindt’s

frustration grew.    Quindt waited in the car for two to three

minutes while Williams took his son into the home.       Quindt felt

frustrated because he was doing a favor for Williams by doing a

piercing for his friend, and he asked Williams to hurry because

he wanted to “get home and rest and work on some drawings [for

tattoos].”    Quindt also had previously had back surgery and

“long, strenuous sitting” hurt his back.



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            When Williams returned to the car, Quindt and Williams

began arguing about the wait.        Williams “got irritated, started

kind of yelling at [him].”       Quindt told Williams, “please don’t

disrespect me.”     As Quindt drove down the street, Williams

jumped out of the vehicle.       Quindt then stopped the vehicle and

told Williams to get back in the car.         Quindt did not push

Williams to the ground while trying to get him back into the car

and did not throw him into the car.         Williams reentered the

vehicle to sit in the right passenger backseat, which Quindt

thought “was a little weird.”

            Once Williams returned to the backseat of the car,

Quindt became more upset on the drive because Williams began

talking on his phone to his ex-girlfriend. 4         Quindt told Williams

that he should not be speaking with his ex-girlfriend because

Williams had a restraining order against her.           Quindt had been

helping Williams with his custody case, and he told Williams,

“You’re going to mess your case up of getting custody for [your

son.]”

            Quindt and Williams were yelling and swearing at each

other.    Quindt told Williams to “get the fuck out of my house.”



      4
            Quindt testified on cross-examination that he was not sure if
Williams spoke with his girlfriend or merely told Quindt that he was trying
to talk to her.




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Williams said “I’ll get out.       You can keep everything that’s

there, the food, all the stuff, clothes.”

            While driving, Quindt felt Williams hit him on the

side of his face.     At first, Quindt thought he had been punched,

but then he felt blood running down his neck. 5          Williams had

struck Quindt with a knife.       Quindt then “started fighting,

gassing the car, hitting the brake, gassing the car, trying to

throw [Williams] off balance.”

            Quindt continued to drive the car until he reached the

Waianae Mall parking lot.       Quindt then put the vehicle in park,

jumped out, and ran in front of it into the headlights.

Williams was on his phone, and Quindt overheard Williams calling

his mother.

            Quindt then attempted to call 911 to get help to take

him to the hospital, but when he tried to dial 911, the blood on

the telephone’s screen prevented him from doing so.            Quindt went

to the car and told Williams, “[I]f I die, you’re going to get

in more trouble.     I need you to take me to the hospital.”

Williams then drove Quindt to Waianae Coast Comprehensive Health

Center.


      5
            Quindt testified that his injuries were: a stab wound through his
nose and out through his top lip, a 3-4 inch laceration on his left arm, a
laceration extending from the right side of his face down to his Adam’s
apple, and cuts on his fingers and on his chest from fighting with Williams.




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          Quindt told Williams “don’t worry, I won’t get you

into trouble” because he was “afraid for [his] life.”       Quindt

never told Williams to get rid of the knife or to make up a

story of being attacked.     After arriving at the health center,

Williams said he was going to get rid of the knife and ran

toward the ocean.

          Before Williams struck him, Quindt did not threaten to

kill or hurt Williams.     On the day of the incident, Quindt was

carrying a folded knife in his back pants pocket.      Quindt did

not take out his knife or threaten Williams with it.

          Quindt never directly mentioned to Williams that

Quindt had been convicted of a murder.     According to Quindt,

Williams may have overheard him discussing the conviction with a

member of the Hawaiʻi Innocence Project.     Quindt explained that,

although he had been convicted of murder, he was later

exonerated.

          During cross-examination, the circuit court gave a

limiting instruction to the jury concerning the statements the

court admitted from Williams’ notice of prior bad acts.       The

circuit court explained to the jury that it could only use

evidence concerning Quindt’s murder conviction and his learning

how to fight in jail to evaluate Williams’ state of mind.       On

cross-examination, Quindt denied that he spoke to Williams about

the murder conviction.     But, after his memory was refreshed by a


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transcript of what he previously told a detective, Quindt agreed

that he was “up front” with Williams about his criminal history.

           After Quindt’s testimony, the State also introduced

testimony by Ernest Robello, a detective with the Honolulu

Police Department.     Detective Robello testified that Williams

initially told him that he and Quindt went to a beach park and

had a confrontation with three unknown men, one of whom stabbed

Quindt.   After Detective Robello confronted Williams about

discrepancies in his statement, Williams explained that Quindt

suggested that they come up with a story and admitted to

striking Quindt.     Initially, Williams claimed he threw the knife

in the ocean and it was not recoverable, but later stated that

he hid the knife near Waianae Coast Comprehensive Health Center.

           Detective Robello testified that Williams stated he

struck Quindt “in self-defense.”       Williams told Detective

Robello that “he thought that Mr. Quindt was reaching for his

back pocket,” and that he knew Quindt “normally carries a knife

in that pocket.”     Detective Robello explained that he asked

Williams whether striking Quindt was “kind of a preemptive

strike” and whether Williams “stabbed [Quindt] with the intent

to kill him before he could kill you.”       Williams answered “yes”

to both questions.

           Detective Robello also testified that Williams shared

with him some of Quindt’s criminal history.       According to


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Detective Robello, Williams stated that “the night before the

stabbing, during an argument between the two of them, he said

that Mr. Quindt had said that he had been incarcerated.       He had

killed somebody in the past and gotten away with it.”

           2.    The Defense’s Case

           Williams testified in his own defense at trial in

compliance with the restrictions placed upon his testimony by

the trial judge.     He explained that his relationship with Quindt

was adversarial, with Quindt being the “[a]lpha male.”       Williams

said that he did not spend much time with Quindt but when he

did, they “would kind of butt heads.”     Williams elaborated that

Quindt “would tell me things to do, and if I did them a

different way, he would, I guess, bash me down on it.”       Williams

testified that when Quindt and he got into a “few arguments”, he

would “scare” Williams because Quindt was “really jumpy.”

According to Williams, Quindt “lost his temper very easily” and

“[w]hen he’d lose his temper, he would want to fight.”       Williams

stated, “I don’t really like confrontation that much myself, and

I’m usually the type to just walk away from things.”       Quindt,

however, was “more the type to instigate a fight and push for a

fight.”   Williams said that a few times “it came very close to

an actual altercation” but “[t]here was never actually physical

blows thrown.”     By the 17th or 18th day of living with Quindt,

he was getting “second thoughts” and was “getting scared.”


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             Williams testified that he also feared Quindt because,

in the past, Quindt on several occasions had “nonchalantly . . .

bragg[ed] about an alleged attempted murder that he committed.”

According to Williams, Quindt “directly [spoke to Williams]

about the murder charge.    He bragged about it multiple times. .

. .   In my eyes, I just -- I was frightened by it really in the

long run.”    Williams testified that this knowledge affected his

state of mind:    “Anytime an altercation would happen, anytime

that he would lose his temper, it was the first thing in my

mind, was that that had happened and that he bragged about it.

So it was, I guess, a touchy subject or it -- it alarmed me.”

             Williams testified that, on the date of the incident,

he attempted to avoid a confrontation with Quindt when they

began arguing in the car.    Williams explained that when he

returned to Quindt’s car after settling his son in for the

night, he noticed that Quindt was “really upset.”      Williams

stated that Quindt “started yelling at [him] asking what took

[him] so fucking long” and Quindt exclaimed that Williams “was

disrespectful for never appreciating his suggestions and just

cursing at [him] and yelling at [him].”     Williams explained that

he does not like confrontation, and that when he is being yelled

at or called names, his coping mechanism is to pull “[himself]

from that situation, turn [his] back, walk away, whatever, just

to get away from the situation. Some people count to 10. [He]


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walk[s] away.”    In an effort to avoid the confrontation with

Quindt, Williams jumped out of the car as Quindt slowed to a

stop sign.

             After jumping out of Quindt’s car, Williams claimed

“next thing I know, I’m on the ground, and [Quindt] had came

[sic] up from behind me and pushed me about shoulder length with

both hands onto the pavement.”     Williams said that Quindt was

yelling at him again, “fuck this shit, let’s do it, you know,

it’s time to fight.    Do you think I’m afraid of you?”     Williams

said that Quindt also yelled, “you think I’m afraid of you?          I

learned how to fight in jail I’m not afraid of you.       Let’s do

this, let’s throw.”    According to Williams, Quindt was “getting

in a fight stance.”    Williams told Quindt he did not want to

fight, turned his back to Quindt, and started to walk away.

Quindt came up behind Williams and said “if you don’t get in the

truck, I’ll make you get in the fucking truck,” then pushed

Williams toward the car.    Quindt pushed Williams into the

backseat of the car.    After Williams was in the car, Williams

stated that Quindt drove “erratically.”       During this time,

Quindt told him “I’ve done nothing but try to help you out, why

have you been so disrespectful?”       Williams described Quindt as

“screaming at me, flustered face, really expressive, and just

kind of overall scary.”    Williams said that his voice may have

risen but that he was trying to “calm the situation down.”


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          Williams testified that he attempted to jump out of

the car again, but the child safety locks were engaged and he

could not open the doors or the windows.        Williams stated that

“[a]s I’m doing this, I look up and [Quindt is] looking at me in

the rear-view mirror, and he kind of smiles at me.          The only way

I can explain it would be like a sardonic smile, like ha-ha, I

got you, you know, you’re not getting anywhere.”         Williams

explained at this point he was thinking “holy shit, I’m trapped,

I’m stuck in this guy’s truck.      He’s murdered before.      He’s

yelling at me, screaming at me.      What am I going to do?”

Williams testified that at one point during the drive, Quindt

looked at Williams and said, “when I stop this truck, I’m going

to fucking kill you.”    Williams explained that after Quindt made

this statement, he was afraid based on his knowledge that Quindt

had murdered before:

          The main thing that kept going through my mind was that
          [Quindt] brags about killing people, and I didn’t know if
          he was for real about it. I didn’t know if he was joking
          about it. I didn’t know if he would actually kill me. I
          didn’t know anything at that point. I was scared. I was
          petrified. In my mind, I really thought I was going to
          die.

Williams testified that, after Quindt made the threatening

statement, Quindt turned down a dark road and “he says I’m going

to kill you, and he goes like this, like he nods, like he was

assuring himself or something.”




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           Fearing that his life was in danger, Williams

testified that he then decided to strike Quindt:          “I was scared,

and I stabbed him.     I -- I took the knife out of my pocket, and

I stabbed him.     I didn’t aim.    I didn’t try to hit a certain

area.   I just went around the seat of the truck, and I stabbed.”

Williams explained that when he decided to use the knife to

strike Quindt, he was “petrified” because he thought Quindt

would kill him:

           I was petrified. I had never been so scared. I -- there
           wasn’t really much time from when he threatened me to we’re
           in a dark street now and he’s -- he’s going to kill me.
           There was -- besides terror, I don’t think I was thinking
           anything besides I can’t let him stop this truck. It’s my
           only possibility -- he said when he stops this truck, he’s
           going to fucking kill me, and I can’t let him stop the
           truck.

           After the altercation, Williams panicked because he

had just struck his friend, and he feared for his life as well

as Quindt’s.     Quindt pulled into the Waianae Mall parking lot

and both men left the car.      Williams got out of the car by

pressing the button by the driver’s seat that rolled down the

back passenger window, then opened the door from the outside.

Williams testified that he put the truck between him and Quindt

as a “barrier,” then threw up.       Williams described his feelings

as “distraught” and that he had “just stabbed my friend.            I was

very scared for his life, for mine.”        He then called his mother,

and he told her that Quindt was hurt, that Quindt and Williams




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were going to the hospital, and he asked her to come to the

hospital.6

             Despite his panic, Williams sought to aid Quindt.

Williams saw that Quindt was “bleeding really badly from his

neck” and testified that he took off his shirt and “wrapped it

around [Quindt’s] neck and told him to put pressure on it.”

According to Williams, he told Quindt that he needed to go to

the hospital.     Williams testified that he then drove Quindt to

the Waianae Coast Comprehensive Health Center while “crying

hysterically.”

             Williams explained he initially lied to police because

Quindt had told him to do so.        Williams stated that, on the way

to the health center, Quindt told him “don’t tell the police

what happened, don’t worry, dude, don’t worry, nothing’s going

to happen, don’t tell the police.”         According to Williams, after

arriving at the health center, Quindt told him “get the knife

and go get rid of it and come back up here and get cleaned up .

. . and get ready for the police.         Don’t tell them what

happened[.]”     Williams hid the knife and returned to the health

center where he met with police officers.


      6
            Williams’ mother testified that, when she picked up the call from
Williams, “he just kept saying mom and -- and I -- I’m -- I’m scared, I’m
scared. He was very hysterical. I had a very hard time understanding what
he was saying.”




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          On cross examination, the State asked Williams about

his intent when he struck Quindt.       Williams agreed that he told

Detective Robello that he had “stabbed [Quindt] with the intent

to kill him before [Quindt] could kill [Williams].”          Williams

explained that he felt that way “[a]t the time that I gave that

statement.”    He also testified that he had seen a weapon on

Quindt earlier in the evening.

          On redirect, Williams described in more detail his

state of mind at the time of the altercation.         Williams

explained that he thought that he needed to attack Quindt

because he thought Quindt would kill him:

          I was thinking I need to do something to prevent him from
          killing me, like he threatened to do to me. He said he was
          going to kill me. I didn’t think of killing him. I
          thought of maiming him. I thought of just incapacitating
          him so he couldn’t try to kill me. I was locked in the
          back of his truck. I didn’t want to give him the
          opportunity to open my door and have an advantage over me.
          I -- I didn’t want to kill him. I don’t know why I said
          that, but I didn’t want to kill him.

          . . . .

          The only thought I can really remember was live, that I
          have to live. I have a son that I love dearly, and I was
          scared. The only thing I could think of was do something
          first. He said he would kill me when he stopped the truck,
          don’t let him stop the truck.

          3.     Jury Instructions

          The circuit court instructed the jury on self-defense.

The circuit court instructed the jury on the justified use of

deadly force in self-defense as follows:

          The use of deadly force upon or toward another person is
          justified if the defendant reasonably believes that deadly
          force is immediately necessary to protect himself on the


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          present occasion against death or serious bodily injury.
          The reasonableness of the defendant’s belief that the use
          of protective deadly force was immediately necessary shall
          be determined from the viewpoint of a reasonable person in
          the defendant’s position under the circumstances of which
          the defendant was aware or as the defendant reasonably
          believed them to be when the deadly force was used.

          4.    Verdict and Sentencing

          The jury found Williams guilty as charged.          The

circuit court sentenced Williams to imprisonment for a term of

life with the possibility of parole.

     C.   Intermediate Court of Appeals

          The Intermediate Court of Appeals (“ICA”) affirmed

Williams’ conviction.    The ICA held the limitations imposed on

Williams’ proffered statements by the circuit court “did not

materially impair Williams’ claim of self-defense.”          According

to the ICA, the evidence permitted by the circuit court was

equivalent to Williams’ proffered statements.         Because the ICA

considered the evidence admitted by the circuit court to be

equivalent to Williams’ excluded proffered statements, the ICA

determined that any error in the court’s limitations “did not

materially impair his claim of self-defense and was harmless

beyond a reasonable doubt.”

     D.   Application for Writ of Certiorari

          Williams raises the following issues on appeal:

          Whether the ICA gravely erred in holding that the circuit
          court did not err in limiting and/or excluding the
          proffered evidence under (HRE) 404(a)(2) and 404(b) because
          under its rationale (1) the proffered HRE 404(a)(2)
          evidence was not probative because it constituted
          unsubstantiated hearsay; (2) and error in limiting and/or


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          excluding any of the proffered evidence constituted
          harmless error because substantively equivalent evidence
          was introduced that satisfied Williams’s HRE 404(b)
          request; and (3) Williams waived the HRE 404(a)(2) issue.

                       III. STANDARDS OF REVIEW

          In State v. West, 95 Hawaiʻi 452, 456-57, 24 P.3d 648,

652-53 (2001), this court stated:

                [D]ifferent standards of review must be applied to
          trial court decisions regarding the admissibility of
          evidence, depending on the requirements of the particular
          rule of evidence at issue. When application of a
          particular evidentiary rule can yield only one correct
          result, the proper standard for appellate review is the
          right/wrong standard. However, the traditional abuse of
          discretion standard should be applied in the case of those
          rules of evidence that require a “judgment call” on the
          part of the trial court.

(Quoting Kealoha v. Cty. of Hawaii, 74 Haw. 308, 319-20, 844

P.2d 670, 676 (1993)).    Rulings made pursuant to HRE Rule 404

require a “judgment call” and we therefore apply the abuse of

discretion standard:

          Evidentiary decisions based on HRE Rule 403, which require
          a “judgment call” on the part of the trial court, are
          reviewed for an abuse of discretion. HRE 404 represents a
          particularized application of the principle of HRE 403, and
          we will employ the same abuse of discretion standard of
          review.

State v. Richie, 88 Hawaiʻi 19, 37, 960 P.2d 1227, 1245 (1998)

(internal quotation marks, citations, and footnotes omitted).

“The trial court abuses its discretion when it clearly exceeds

the bounds of reason or disregards rules or principles of law or

practice to the substantial detriment of a party litigant.”

Samson v. Nahulu, 136 Hawaiʻi 415, 425, 363 P.3d 263, 273 (2015)

(internal quotation marks and citations omitted).


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                           IV.   DISCUSSION

     A.   A defendant has a constitutional due process right to
     present a complete defense.

          A person charged with a crime has a fundamental right

to present a defense; the right to defend oneself has been

deemed fundamental to a fair trial under the Fourteenth

Amendment to the United States Constitution and under article I,

section 5 of the Hawaiʻi Constitution.     Chambers v. Mississippi,

410 U.S. 284, 302 (1973) (holding that the exclusion of evidence

critical to the defense and the denial of an opportunity to

cross-examine a witness denied the defendant a trial “in accord

with traditional and fundamental standards of due process” and

stating that “[f]ew rights are more fundamental than that of an

accused to present witnesses in his own defense”); State v.

Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (“The due

process guarantee of the Federal and Hawaii constitutions serves

to protect the right of an accused in a criminal case to a

fundamentally fair trial”).

     Central to the protection afforded by due process “is the

right to be accorded ‘a meaningful opportunity to present a

complete defense.’” (emphasis added, citation omitted) (quoting

California v. Trombetta, 467 U.S. 479, 485 (1984)).       It is “a

right to [a] day in court,” and “include[s], as a minimum, a

right . . . to offer testimony[.]”     Rock v. Arkansas, 483 U.S.




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44, 51 (1987) (quoting In re Oliver, 333 U.S. 257, 273 (1948));

see State v. Santiago, 53 Haw. 254, 259, 492 P.2d 657, 660

(1971).     Logically, the accused’s right to call witnesses

includes “a right to testify himself, should he decide it is in

his favor to do so.       In fact, the most important witness for the

defense in many criminal cases is the defendant himself.”              Rock,

483 U.S. at 52.      The right to “call[ ] witnesses is incomplete

if [the defendant] may not present himself [or herself] as a

witness.”     Id.; see State v. Loher, 140 Hawaiʻi 205, 216, 398

P.2d 794, 805 (2017) (holding that restricting a defendant’s

decision whether to take the stand to assert a defense would

violate various state and federal constitutional guarantees).

Thus, a defendant’s right to present his version of the events

in his own words is “basic in our system of jurisprudence[.]”

In re Oliver, 333 U.S. at 273.         A defendant who chooses to

testify gives the jury an opportunity to consider the

defendant’s credibility based on the defendant’s manner and

demeanor.7    See State v. Walsh, 125 Hawai‘i 271, 302, 260 P.3d

350, 381 (2011) (Recktenwald, C.J., concurring). 8


      7
            With regard to the credibility of witness testimony, the jury in
this case was instructed as follows:

                   In evaluating the weight and credibility of a witness’s
             testimony, you may consider the witness’s appearance and
             demeanor; the witness’s manner of testifying; the witness’s
             intelligence; the witness’s candor or frankness or lack thereof;
             the witness’s interest, if any, in the result of this case; the

                                                              (continued . . .)


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      B.   The circuit court erroneously prohibited Williams from
      presenting evidence relevant to his state of mind and
      therefore violated his constitutional right to due process.

            The circuit court prevented Williams from offering his

own version of facts relevant to his self-defense claim, which

violated his constitutional right to present a complete defense.

Williams was unable to testify that his fear for his life arose

from Quindt’s statements to him that:         Quindt knows about gang-

bangers and gang-members; he has experience with violence from

spending time in jail; Quindt got away with murder by “beating

the charge” because someone else took credit for it; and he did

the crime but got off on a technicality.          Williams was also


(. . . continued)

            witness’s relation, if any, to a party; the witness’s temper,
            feeling, or bias, if any has been shown; the witness’s means and
            opportunity of acquiring information; the probability or
            improbability of the witness’s testimony; the extent to which the
            witness is supported or contradicted by other evidence; the
            extent to which the witness has made contradictory statements,
            whether in trial or at other times; and all other circumstances
            surrounding the witness and bearing upon his or her credibility.
      8
            If a court seeks to exclude relevant evidence it must find the
probative nature of the evidence to be substantially outweighed by the danger
of unfair prejudice or another listed factor:

            Although relevant, evidence may be excluded if its
            probative value is substantially outweighed by the danger
            of unfair prejudice, confusion of the issues, or misleading
            the jury, or by considerations of undue delay, waste of
            time, or needless presentation of cumulative evidence.

HRE Rule 403. The circuit court failed to apply HRE Rule 403 to its
exclusion of Quindt’s testimony. Thus, the probative value of the
constitutionally significant testimony of Williams as to his state of mind
was ruled inadmissible by the circuit court without weighing its probative
value against any prejudice to the government arising from admission of
Quindt’s statements as they were made to Williams.




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precluded from testifying to the jury that Quindt told him that

Quindt did hard time in California and had to learn to fight to

survive.

            Williams sought to introduce Quindt’s proffered

statements as state-of-mind evidence evincing fear Quindt would

take his life.     In so doing, Williams sought to justify his use

of deadly force in his own defense. 9        Williams’ state of mind

when he struck Quindt was an essential element of his defense. 10

            The circuit court’s curtailment of the defendant’s

testimony as to his state of mind at the time he committed the

offense bespeaks a misapprehension of the discretion available

to the court.    It is for the jury to evaluate the strength of

the defendant’s claim of self-defense with full opportunity to

observe a defendant’s complete presentation of the evidence that

allegedly caused the accused to act in self-defense. 11


      9
            Williams sought to introduce evidence of Quindt’s statements as
evidence of “another fact that is of consequence[,]” HRE Rule 404(b), namely,
as evidence that he reasonably feared for his life when he acted in self-
defense.
      10
            The use of deadly force in self-defense “is justifiable . . . if
the actor believes that deadly force is necessary to protect himself against
death [or] serious bodily injury . . . .” HRS § 703-304. “In evaluating the
reasonableness of a defendant’s belief that deadly force was necessary for
self-protection, the evidence must be assessed from the standpoint of a
reasonable person in the defendant’s position under the circumstances as the
defendant subjectively believed them to be at the time he or she tried to
defend himself or herself.” State v. Lubong, 77 Hawaiʻi 429, 433, 886 P.2d
766, 770 (App. 1994).
      11
            The Dissent usurps the role of the jury by evaluating how the
jury would weigh and reject Williams’ testimony. The Dissent concludes that
the jury would not have found Williams credible even if he were permitted to

                                                             (continued . . .)


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            To that end, the details of the proffered statements

of Quindt to Williams excluded by the circuit court convey

additional support for Williams’ self-defense that is absent in

the altered version devised by the court.          Learning to fight “to

survive” has a different implication from simply learning to

fight in jail.      By removing the phrase “to survive” from

Williams’ proffered statement, the circuit court filtered out a

key characterization of Quindt’s statement to Williams that

supported Williams’ apprehension that Quindt would willingly

engage in a brutal fight.12



(. . . continued)

pursue his strategic choice as to how to testify. Under this view, the jury
would not have believed his claim to have been frightened when Quindt told
him he learned to “fight to survive”; instead, the jury would have found
beyond a reasonable doubt that Williams believed Quindt was less likely to
use force because Quindt would only attack if he were attacked first:

            Put differently, the testimony that Quindt told Williams he had
            to learn to fight to survive implies that Williams knew Quindt
            would fight back to protect himself if attacked by another, not
            that Williams should fear Quindt would attack him first. The
            circuit court therefore ruled within its discretion when it
            excluded this language based on its conclusion that the language
            would confuse the jury.

Dissent at 13-14.
      12
            The Dissent concludes that a statement made by defense counsel
during opening statement was an adequate substitute for Williams offering
such testimony at trial. Id. at 13. In her opening statement, Williams’
counsel told the jury that Quindt told Williams he had to learn to fight to
survive. Respectfully, the Dissent’s proposition connotes that evidence can
be introduced during an opening statement . . . and condones reference to
evidence during closing argument that is excluded from introduction during
the evidentiary phase of the trial. The straightforward impropriety of a
court requiring, encouraging, or causing the defendant to rely upon the
opening statement to introduce evidence to the jury is settled. Cf. State v.
Nofoa, 135 Hawaiʻi 220, 227-30, 349 P.3d 327, 334-37 (2015) (holding that it

                                                             (continued . . .)


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            In addition, the single statement selected by the

circuit court that “[Quindt] knew how to fight and learned how

to fight in jail” conveys a different, truncated message than

the multiple excluded statements constituting Williams’

proffered testimony:      Quindt learned how to fight to survive “in

jail”; Quindt did “time for the crime of murder in California”;

Quindt “did hard time in California”; and Quindt “has experience

with violence from spending time in jail.”          The multiple

statements of Quindt to Williams excluded by the circuit court

are relevant to Williams’ apparent belief regarding Quindt’s

fixation on intimidating Williams with his alarming past; the

exclusion of the statements also deprived Williams of the

opportunity to have the jury judge his credibility to expound on

the multiple conversations he contended caused him to fear for

his life at the time he used force against Quindt.

            In addition to curtailing Williams’ testimony, the

circuit court wholly excluded the statement made by Quindt to

Williams that he knew about gang-bangers and gang-members.



(. . . continued)

was error for the court to instruct the prosecutor that evidence could be
offered to the jury during the state’s rebuttal argument). Here, the trial
court not only relegated the defense to a strategy legally impossible to
achieve—namely, the admission of evidence during opening statement—the court
thereafter instructed the jury to disregard the evidence. The jury was
instructed that “[s]tatements or arguments made by lawyers are not evidence.
You should consider their arguments to you, but you are not bound by their
memory or interpretation of the evidence.”




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According to the circuit court, it would be unclear to a

factfinder what Williams meant by the term “gangbangers”

because, for example, a gang member is not necessarily a violent

person.   Again, the purpose of the evidence was misperceived by

the circuit court.     Williams did not seek to communicate to the

jury the meaning of “gangbangers.”         He sought to explain to the

jury what gangbangers meant to him when the term was used by

Quindt.   As defense counsel explained in response to the court’s

characterization of the term gangbanger, “when [Williams] hears

that term, he thinks it’s something beyond just, you know minor

gang activity, and it involves something a little bit more

serious and involves more violence.”         The evidence describing

Quindt’s bragging about knowing “gangbangers” could have

provided a specific, probative example of Quindt’s alleged

proclivity towards violence.13

            The circuit court also reached the conclusion that

Williams’ testimony that Quindt bragged about killing with

impunity and escaping accountability due to a “technicality” was

irrelevant.    The circuit court appears to have concluded that


      13
            Contrary to the circuit court’s understanding of the term,
“gangbanger” can connote a particularly violent subset of gang membership.
The Oxford English Dictionary defines a gangbanger as: “A member of a
criminal or street gang, esp. one who engages in gang violence; a gangster.”
Gangbanger, Oxford English Dictionary (Jan. 18, 2018),
http://www.oed.com.proxy.seattleu.edu/view/Entry/370323?redirectedFrom=gangba
nger#eid/ (emphasis added).




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since Williams was able to testify that Quindt bragged about

killing people and about committing an alleged attempted murder,

it would not be reasonable to assume the jury’s verdict might be

affected by the excluded testimony.         If so, the conclusion

depreciated the probative value of the excluded facts to

Williams’ claim of life-threatening fear.          As a defendant

accused of attempted murder, claiming self-defense, Williams’

defense was not complete without being able to inform the jury

through his testimony that the complainant told him he murdered

and got away with it due to a technicality.

            Indeed, the State introduced evidence to the jury that

Quindt did not commit murder, telling the jury that Quindt was

exonerated of murder.      In so doing, the probative value of

Williams’ testimony that Quindt bragged about getting away with

murder based on a technicality was heightened. 14          The probative

value of Williams’ testimony significantly increased.            Left with

the knowledge that Quindt was exonerated of murder, the jury

might reasonably have concluded that Williams falsely testified

when he claimed that Quindt bragged about killing people.



      14
            Quindt’s statement, that he escaped accountability for a murder
due to a technicality, is manifestly relevant pursuant to HRE 401 because it
makes it “more probable” that Williams acted in self-defense. HRS § 626-1,
Rule 401. Pursuant to HRE Rule 403, the probative value of Quindt’s
statement “substantially outweighed” the unlikely possibility that it would
cause confusion of the issues or mislead the jury. HRS § 626-1, Rule 403.




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            However, with the additional evidence omitted by the

circuit court that Quindt claimed to have killed people and

escaped accountability based on a technicality, the jury might

have reasonably believed that Williams thought Quindt believed

he could kill Williams and escape accountability.            Moreover, the

testimony of Quindt was corroborative of evidence elicited from

him through cross-examination that it was Quindt—not Williams—

who had murderous intent.       Quindt conceded he was in an angry

mood, that he carried a knife that evening, that Williams jumped

from the car and was ordered back in the car by Quindt, 15 that

Williams called his mother immediately after Quindt was injured,

and that Williams took him to the Waianae Coast Comprehensive

Health Center to receive treatment for his injury. 16


      15
            The Dissent fails to acknowledge evidence supporting Williams’
claim that he feared Quindt would drive him to an isolated location and kill
him. Instead, having reviewed all the evidence Williams was permitted to
present at trial, the Dissent finds beyond a reasonable doubt that the jury
would conclude Williams’ defense amounted to the incredible proposition he
was afraid Quindt would try to kill him as Quindt was driving and Williams
was seated in the back seat:

                  Moreover, despite Williams’s extensive self-defense
            testimony, certain undisputed facts call into question Williams’s
            credibility and render harmless the exclusion of further
            testimony. First, Quindt was driving his vehicle in the driver’s
            seat when Williams attacked him from the back seat. It is
            difficult to imagine a scenario where Quindt could have reached
            into the back seat, while driving, and killed Williams.

Dissent at 21.
      16
            The Dissent concludes that the trial strategy of defense counsel
and the defendant as to the content of defendant’s state of mind testimony
supporting his self-defense claim is subject to alteration by the court. Id.
at 13-14. Respectfully, no precedent identifies a consideration sufficient

                                                             (continued . . .)


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            The significance of the defendant’s right to speak

directly to his peers about the exact allegedly life-threatening

words spoken to him by the complaining witness is ignored by the

Dissent in its conclusion—beyond a reasonable doubt—that police

officer testimony is a constitutionally available substitute for

the testimony of the defendant. 17        The Dissent adopts the

proposition that Detective Robello’s rendition of what Williams

told Quindt is a legitimate substitute for Williams’ testimony;

the testimony of a prosecution witness is deemed a substitute

for Williams’ right to offer the same testimony directly to the

(. . . continued)

to outweigh the right of the defendant to testify as to what was said to him
by the complaining witness that caused the defendant to act in self-defense.
Indeed, the United States Supreme Court rejected the proposition that the
court had discretion to edit a defendant’s testimony in support of her self-
defense claim notwithstanding that the testimony was hypnotically refreshed.
Rock, 483 U.S. at 60. Per a statute prohibiting the use of posthypnosis
testimony, the Supreme Court of Arkansas crafted testimony for the defendant
permitting only her recollection of the events prior to her hypnosis. The
Arkansas court excluded the defendant’s testimony remembered through hypnosis
because the court deemed unreliable any memory allegedly restored by
hypnosis. Id. at 47-48. The United States Supreme Court rejected the
Arkansas Supreme Court’s proposition that “any testimony that cannot be
proved to be the product of prehypnosis memory is unreliable[.]” Id. at 58.
It held that the unreliability of memory allegedly restored through hypnosis
did not render it “so immune to the traditional means of evaluating
credibility that it should disable a defendant from presenting her version of
the events for which she is on trial.” Id. at 61.
      Unlike the hypnotically induced testimony in Rock, the testimony of
Williams bore no sign of mistruth—no indication of untrustworthiness other
than the opposing testimony of Quindt. Williams’ testimony was directly
relevant to the critical issue as to his state of mind when he allegedly
acted in self-defense. There was no need so overarching to his right to
present his defense in his own words to empower the judge to decide the words
he should use to defend himself before the triers of fact, nor to completely
exclude statements made to him that bore on his self-defense claim.
      17
            The Dissent finds beyond a reasonable doubt that any error
arising from the circuit court’s exclusion of Williams’ testimony was
harmless. Dissent at 22.




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jury.    Respectfully, substituting prosecution witness testimony

for the testimony of the accused, as to what was said to the

accused by the complaining witness that engendered the accused

to act in self-defense, renders the right to present evidence a

mere pretense.

        C.   The circuit court’s errors in altering and excluding
        Williams’ state of mind evidence were not harmless beyond a
        reasonable doubt.

             The violation of Williams’ constitutional due process

right to present a complete defense was not harmless beyond a

reasonable doubt because there is “a reasonable possibility that

the error complained of might have contributed to the

conviction.”     State v. Kassebeer, 118 Hawaiʻi 493, 505, 193 P.3d

409, 421 (2008) (quoting State v. Peseti, 101 Hawaiʻi 172, 178,

65 P.3d 119, 125 (2003)).

             The improper exclusion and alteration of Williams’

testimony as to his state of mind at the time he stabbed Quindt

deprived Williams of evidence that he acted in self-defense as a

result of his life-threatening fear of Quindt.      Faced with a

credibility contest with Quindt, the most important witness in

Williams’ defense was Williams.     See DePetris v. Kuykendall, 239

F.3d 1057, 1062–63 (9th Cir. 2001) (“There is simply no denying

that the most important witness in the defense of [the

defendant] was [the defendant] herself.     The trial court not

only excluded [essential evidence], but worse still, it


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prevented [the defendant] from testifying fully in her own

behalf about why she did what she did—this in a case where proof

of the defendant’s state of mind was an essential element of the

defense.”).

           The circuit court prevented Williams from presenting

his fully contextualized testimony as to his state of mind when

he struck Quindt—in a case in which Williams’ defense was based

entirely on whether the jury believed that he feared that his

life was in peril.   The exclusion of such essential testimony is

not harmless beyond a reasonable doubt.     See State v. Calbero,

71 Haw. 115, 124–25, 785 P.2d 157, 161 (1989) (quoting State v.

Williams, 21 Ohio St.3d 33, 36, 487 N.E.2d 560, 562-63

(1986))(holding that the defendant’s testimony reciting

statements of the rape complainant about prior sexual

experiences were proffered for an “important purpose, which is

to negate the implied establishment of an element of the crime

charged.   For this reason, the probative value of the testimony

outweighs any interest the state has in its exclusion”); Fowler

v. Sacramento Cty. Sheriff’s Dep’t, 421 F.3d 1027, 1042 (9th

Cir. 2005) (holding that the erroneous preclusion of cross-

examination of the victim “alone strongly supports a finding

that the error was not harmless” because the case came down to a

“credibility contest” between the victim and the defendant).




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                           V.    CONCLUSION

          Williams’ fundamental due process right to present a

complete defense was violated.     The circuit court excluded

evidence relevant to Williams’ fear of Quindt, putting Williams

at a significant disadvantage in proving his use of violence was

a justified act committed in self-defense.      Accordingly, the

ICA’s judgment on appeal and the circuit court’s judgment of

conviction and sentence are vacated.     The case is remanded to

the circuit court for a new trial.

Taryn R. Tomasa                  /s/ Sabrina S. McKenna
for Petitioner
                                 /s/ Richard W. Pollack
James M. Anderson
for Respondent                   /s/ Michael D. Wilson




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