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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000132
                                                              15-JUN-2017
                                                              08:18 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


                          STATE OF HAWAI#I,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                           RAINIER ACACIO,
                   Petitioner/Defendant-Appellant.


                            SCWC-13-0000132

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-13-0000132; CR. NO. 12-1-0049)

                              JUNE 15, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY NAKAYAMA, J.

                            I.   INTRODUCTION

          Respondent/Plaintiff-Appellee the State of Hawai#i (the

State) charged Petitioner/Defendant-Appellant Rainier Acacio

(Acacio) with offenses arising from a domestic dispute between
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Acacio and his ex-girlfriend, the complaining witness (CW).             The

jury found Acacio guilty of one of the offenses - terroristic

threatening in the first degree - and the Circuit Court of the

First Circuit (circuit court) entered a judgment of conviction

and probation sentence, which the Intermediate Court of Appeals

(ICA) affirmed.

          In his application for writ of certiorari, Acacio takes

issue, inter alia, with the circuit court’s decision to limit the

CW’s testimony on cross-examination.        In brief, defense counsel

asked the CW questions regarding her knowledge of Acacio’s

immigration status and whether the CW knew that Acacio could face

deportation if he was arrested.       The State objected.       Despite

defense counsel’s argument that this line of questioning was

imperative in order to establish the CW’s bias or motive, the

circuit court sustained the State’s objection and struck the

questions and responses from the record.

          We conclude that Acacio was deprived of his right to

confront and cross-examine the complaining witness as to her bias

and motive.   Testimony derived from the CW’s answers to the

immigration questions might have illuminated the CW’s motive for

calling the police, and ultimately had the potential to affect

her credibility as a witness.       Accordingly, we vacate the ICA’s

September 9, 2016 judgment on appeal, vacate the circuit court’s


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February 4, 2013 judgment of conviction and probation sentence,

and remand this case to the circuit court for a new trial.

                              II.   BACKGROUND

A.    Circuit Court Proceedings1

            On January 11, 2012, the State charged Acacio with:               1)

one count of terroristic threatening in the first degree, in

violation of Hawai#i Revised Statutes (HRS) § 707-716(1)(e), for

threatening “to cause bodily injury to [the CW], with the use of

a dangerous instrument, in reckless disregard of the risk of

terrorizing [the CW]”; and 2) one count of abuse of family or

household members, in violation of HRS § 709-906(1) and (5), for

“intentionally, knowingly, or recklessly physically abus[ing]

[the CW.]”

            The jury trial began on November 16, 2012.            On direct

examination, the CW testified that Acacio was her live-in

boyfriend just prior to the time of the January 1, 2012 incident,

and that they had been together for almost two and a half years.

The CW explained that in December of 2011, she broke up with

Acacio, but that he continued to live in her house until the

incident on January 1, 2012.

            The CW gave the following testimony about the incident

that led to Acacio’s arrest:

1
      The Honorable Edward H. Kubo, Jr. presided.

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           On the night of December 31, 2011, the CW’s family had

a New Year’s party at their house.        The CW was outside, enjoying

the party with her family, while Acacio was inside the house.

Shortly after midnight, the CW received a phone call from Acacio,

and they exchanged New Year’s greetings before she hung up.

Soon after the phone call, the CW saw Acacio exit the house and

she entered the house, went to her bedroom, and started preparing

for bed.   As she was doing this, Acacio came into the bedroom,

closed the door, and said that he wanted to fix their

relationship.    The CW responded that their relationship was over;

at this point, Acacio became mad and emotional and said that he

would kill himself.     The CW responded, “go ahead, it’s not my

fault,” and Acacio left the bedroom and returned holding a

kitchen knife.    Acacio pointed the knife at himself and kept

repeating that he was going to kill himself.          Acacio then

“changed his mind,” pointed the knife at the CW, and started

saying, “I will kill you.”      The CW knocked the knife out of

Acacio’s hand, and Acacio then grabbed her by the face and

punched her in the stomach.      When Acacio turned around to grab

the knife, the CW locked herself in the bathroom and called 911.

           On cross-examination, the deputy public defender (DPD)

elicited the following testimony from the CW:
           [DPD:] When you called 911, you told Rainier you were
           calling 911; right?


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       [CW:] Yes.
       [DPD:] You told him to grab your things?
       [CW:] And leave the house.
       [DPD:] And leave, right, leave me alone?
       [CW:] Yes.
       [DPD:] Leave my family alone?
       [CW:] Yes.
       [DPD:] But he didn’t leave; right?
       [CW:] Yes, ma’am.
       [DPD:] And when he didn’t leave, you got upset?
       [CW:] Excuse me?
       [DPD:] When he didn’t listen to you when you told him to
       leave, when he stayed there, you got upset?
       [CW:] Yes, ma’am.
       [DPD:] Because you had already been broken up with him for
       two weeks; right?
       [CW:] Yes, ma’am.
       [DPD:] He was still living in the house?
       [CW:] Yes, ma’am.
       [DPD:] You wanted him out of the house?
       [CW:] Yes, ma’am.
       [DPD:] He was supposed to be looking for a place; right?
       [CW:] Yes, ma’am.
       [DPD:] You didn’t think he was actually looking for a place?
       [CW:] He told me that he’s looking for a place and he asking
       for a time to look for a place.
       [DPD:] But you didn’t believe he was doing that; right?
       [CW:] No, I don’t believe.
       [DPD:] So that made you upset, too; right?
       [CW:] Yes.

             . . . .

       [DPD:] But you were upset he’s still there?
       [CW:] Yes.
       [DPD:] And that he won’t go away?
       [CW:] Yes.
       [DPD:] He won’t get out of the house?
       [CW:] Yes.
       [DPD:] And you know that Rainier is not a citizen of the
       United States; right?
       [CW:] Yes.
       [DPD:] You know that if he gets arrested he can get sent
       back to the Philippines; right?
       [CW:] Yes.
       [Deputy Prosecuting Attorney:] Objection.
       THE COURT: Objection is sustained. The jury is advised that
       immigration status has nothing to do with these charges.
       The jury is to determine the guilt or innocence as to Counts
       1 and 2 and I’m instructing you to disregard any mention or
       any comments concerning the defendant’s immigration status.

             . . . .

       [DPD:] But you wanted him out of the house?
       [CW:] Yes, ma’am.

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          [DPD:] Out of your life?
          [CW:] Yes, ma’am.
          [DPD] And you knew if he got arrested he would leave?
          [CW:] Yes, ma’am.

(Emphases added.)

          After the jury was excused for the day, the DPD

explained why she questioned the CW about her knowledge of

Acacio’s immigration status:
          [DPD:] Thank you, Your Honor. With respect to the State’s
          objection to my questioning regarding my client’s –-
          THE COURT: Immigration status.
          [DPD:] –- status, yes, Your Honor, it’s the defense’s
          position that that goes to bias, interest, motive,
          specifically the motive to fabricate. I don’t think that –-
          I mean, I think it’s clear from my voir dire that part of
          our defense is that she fabricated at least certain portions
          of this. Why she fabricated or the motive involved would be
          highly relevant.
                That was the only reason why that question was posed
          to the witness, simply to establish she was aware of that
          and that she knew there would be consequences which would
          have substantiated a motive, and that was why I asked the
          question. In fact, the question that I was objected to,
          which was two questions to it, that was the only question I
          was going to ask and nothing further.
          THE COURT: I understand, and I’m not saying it was done in
          bad faith, I understand your reasons and rationale for doing
          that. However, on the other side of the coin, penalty and
          punishment shall not be considered by the jury and
          deportation of a person is a form of punishment. And I –-
          and under the facts and circumstances of this case, I feel
          that even notwithstanding your good faith in breaching the
          topic, that the prejudicial effect substantially far
          outweighs the probative value and so I sustained the
          objection. But, again, I find that you had a good faith
          basis for the question.

          On the next court date, and before the jury was brought

in, the DPD once again clarified her stance on the immigration

issue:
          [DPD:] Yes, Your Honor. With respect to the objection that
          I made at the end of our last –- before our last recess,
          which was specifically my questions regarding my client’s
          immigration status, I just also wanted to clarify for the

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          record that I had asked –- I’m sorry –- asked the
          complaining witness if she was aware of my client’s status.
          She had indicated yes. I then asked if she was aware of the
          consequences of him being arrested, where there was the
          objection and it was sustained.
                But I wanted to place on the record that I have a
          good-faith basis to believe that she would be able to
          respond in the affirmative due to the fact she is not a
          citizen as well. So she would be aware of the consequences
          of someone being arrested and not being a citizen.
                Additionally, although I did not request it before, I
          think given the fact that she may be recalled, I’d ask the
          Court to consider allowing the question but doing a limiting
          instruction to the jury which would address the prejudice
          that the Court referenced, which is that it goes more to
          penalty or punishment as opposed to motive and credibility.
          I believe that if the jury was instructed that they could
          only consider it for the limited purpose of determining the
          complaining witness’ credibility and her motive, that could
          address any of the prejudice issues.
          THE COURT: I understand the defendant’s concern. The Court
          has done a balancing act, and this Court finds that even
          though it may be relevant as far as 609 or bias or motive
          for interest, or whatever theory you may wish to blame this
          on, this Court still believes that the prejudicial offense
          still outweighs the probative value of that question,
          particularly in light of the fact that penalty or punishment
          would be now front and center for our jury’s consideration.
          And I don’t think that would be proper, but your point is
          well taken.
          [DPD:] And the Court does not believe that that could be
          cured through a limiting instruction?
          THE COURT: No, I don’t think that a limiting instruction
          would fix that, especially in light of the fact that you
          would not –- you would also be seeking to get that same
          information out about the complaining witness herself, which
          is, I feel, even further outside the potential circle.
          [DPD:] Actually, Your Honor, to clarify, I didn’t intend on
          asking the complaining witness that question about her
          status. But my good-faith basis belief that she knew about
          the consequences was based on the information that I
          received that she is not a citizen, but I was not going to
          ask her about that.
          THE COURT: Well, the Court would appreciate that. But the
          Court still feels that this –- the balancing of the interest
          falls in favor of exclusion of that question.
          [DPD:] Okay.

          Acacio testified that he and the CW had not been

together as a couple for about two weeks before the New Year’s

celebration and that, after midnight on January 1, 2012, he did


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approach the CW in the bedroom to talk to her about their

relationship.     Acacio testified that the CW appeared angry and

told him, “[w]e don’t need to talk anything out.             We’re done.”

Acacio explained that he felt hurt and that he retrieved a knife

from the kitchen and returned to the bedroom “to show her that I

will kill myself.”      Acacio testified that he never pointed the

knife at the CW.

            On November 21, 2012, the jury found Acacio guilty of

terroristic threatening in the first degree and not guilty of

abuse of family or household members.          On February 4, 2013, the

circuit court entered a judgment of conviction and probation

sentence, which sentenced Acacio to five years of probation.

B.    ICA Proceedings

            On appeal,2 Acacio argued that the circuit court erred

in precluding Acacio from cross-examining the CW on whether she

was aware of his immigration status.          According to Acacio, his

immigration status was relevant because it established the CW’s

“bias, interest and motive to fabricate her story.”             As a result,

Acacio claimed that the circuit court violated his

“constitutional right to confront witnesses via cross-



2
      Acacio raised two issues on appeal before the ICA, the second relating
to an undisputed Hawai#i Rules of Penal Procedure Rule 16 violation. Because
our resolution of the first issue is dispositive of the second, we do not
address it.

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examination.”

          In response, the State argued that the jury had “ample

information” as to the CW’s motive without receiving evidence of

Acacio’s immigration status.      As such, the State claimed that

because “the constitutionally required threshold level of

inquiry” was afforded Acacio, the circuit court did not err in

examining the evidence under Hawai#i Rules of Evidence (HRE) Rule

403 and concluding that it was more prejudicial than probative.

The State asserted that evidence of the CW’s knowledge of

Acacio’s immigration status was more prejudicial than probative

because questions regarding a defendant’s immigration status

appeal to the trier of fact’s passion and prejudice.

          On July 29, 2016, the ICA entered a summary

disposition order (SDO), which affirmed the circuit court’s

judgment of conviction and sentence.        State v. Acacio, No. CAAP-

XX-XXXXXXX, 2016 WL 4078838, at *1 (Haw. Ct. App. July 29, 2016).

As to the issue of Acacio’s immigration status, the ICA concluded

that “Acacio was afforded a level of inquiry on cross-examination

sufficient to satisfy the confrontation clause of the Sixth

Amendment to the U.S. Constitution.”        Id. at *1.     In reaching

this conclusion, the ICA explained that the circuit court “does

not abuse its discretion in excluding evidence tending to impeach

a witness ‘as long as the jury has in its possession sufficient

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information to appraise the biases and motivations of the

witness.’”    Id. (quoting United States v. Easter, 66 F.3d 1018,

1022-23 (9th Cir. 1995)).       The ICA then provided the following

analysis:
                  In the instant case, although the Circuit Court did
            not allow Acacio to cross-examine the CW specifically
            regarding her knowledge of his immigration status, the
            Circuit Court did allow Acacio to cross-examine the CW
            concerning her general understanding that if Acacio got
            arrested, he would leave their shared residence. That is,
            the Circuit Court permitted Acacio to establish through the
            CW’s testimony that she wanted Acacio out of the house;
            that, if he was arrested, he would leave; that she was angry
            that Acacio remained in the house after she asked him to
            leave; and that she had been angry shortly before she spoke
            to police officers. Each of these topics relates to the
            CW’s alleged bias or motive to lie. Thus, the Circuit Court
            complied with the Sixth Amendment and provided Acacio with
            ample opportunity to cross-examine the CW to demonstrate her
            bias or motive to lie. See Levell, 128 Hawai#i at 40, 282
            P.3d at 582 (citing Balisbasana [sic], 83 at 114, 924 P.2d
            at 1220).
                  Because Acacio was afforded the threshold level of
            inquiry under the confrontation clause, the Circuit Court
            was then permitted to exercise its discretion under HRE Rule
            403 and balance the prejudicial effect against the probative
            value of exposing the jury to evidence that Acacio’s arrest
            could result in his deportation because he was not a
            citizen. We conclude that the Circuit Court did not abuse
            its discretion in excluding the proffered evidence. The
            probative value of the proffered evidence to show the CW’s
            motive and bias to testify falsely was attenuated and weak.
            The CW’s knowledge of the potential deportation consequences
            of her testifying falsely did not show or provide a
            persuasive explanation for why she would testify falsely.
            In any event, the proffered evidence was cumulative of
            evidence permitted by the Circuit Court - that the CW knew
            that Acacio’s arrest would require him to leave her house.
            On the other hand, as the Circuit Court noted, questions
            concerning the penalty or punishment a defendant may face
            are not proper subjects for the jury to consider. In
            addition, a jury’s verdict cannot be based on sympathy for
            the defendant. The proffered evidence created a substantial
            risk that the jury would be unduly influenced or distracted
            by concerns that a finding of guilt would lead to Acacio’s
            deportation - an improper subject for the jury to consider.
            As such, the Circuit Court did not abuse its discretion in
            concluding that the prejudicial effect of the excluded
            evidence substantially outweighed its probative value.
            Therefore, the first point of error fails.

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Id. at *2.

            On September 9, 2016, the ICA entered a judgment on

appeal affirming the circuit court’s February 4, 2013 judgment of

conviction and probation sentence.

                        III.    STANDARDS OF REVIEW

A.    Admissibility of Evidence

            As a general rule, [the appellate] court reviews evidentiary
            rulings for abuse of discretion. Kealoha v. County of
            Hawai#i, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993).
            However, when there can only be one correct answer to the
            admissibility question, or when reviewing questions of
            relevance under Hawai#i Rules of Evidence (HRE) Rules 401
            and 402, [the appellate] court applies the right/wrong
            standard of review. Id. at 319, 844 P.2d at 676; State v.
            White, 92 Hawai#i 192, 204-05, 990 P.2d 90, 102-03 (1999).

Moyle v. Y&Y Hyup Shin, Corp., 118 Hawai#i 385, 391, 191 P.3d

1062, 1068 (2008) (brackets omitted) (citing Kamaka v. Goodsill

Anderson Quinn & Stifel, 117 Hawai#i 92, 104, 176 P.3d 91, 103

(2008)).

            “The trial court’s determination that the proffered

evidence is probative of bias, interest or motive is reviewed

under the right/wrong standard.”           State v. Balisbisana, 83

Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996) (citing State v.

Kupihea, 80 Hawai#i 307, 314, 909 P.2d 1122, 1129 (1996)).

B.    Confronting Adverse Witnesses

            Violation of the constitutional right to confront adverse
            witnesses is subject to the harmless beyond a reasonable
            doubt standard. In applying the harmless beyond a
            reasonable doubt standard the court is required to examine
            the record and determine whether there is a reasonable

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            possibility that the error complained of might have
            contributed to the conviction.

State v. Pond, 118 Hawai#i 452, 461, 193 P.3d 368, 377 (2008)

(citing Balisbisana, 83 Hawai#i at 113-14, 924 P.2d at 1219-20).

                              IV.   DISCUSSION

            Although Acacio raises three issues in his application

for writ of certiorari, we do not address all three as we find

his first issue dispositive:        whether the circuit court erred in

precluding Acacio from cross-examining the CW as to her knowledge

of his immigration status.        We agree with Acacio’s argument as to

this issue and hold that the ICA erred when it held that the

circuit court did not err in preventing Acacio from pursuing this

line of questioning.

A.    The ICA erred in affirming the circuit court’s decision to
      prohibit the defense from questioning the CW as to her
      knowledge of Acacio’s immigration status.

            “An accused’s right to demonstrate the bias or motive

of prosecution witnesses is protected by the sixth amendment to

the United States Constitution, which guarantees an accused,

inter alia, the right ‘to be confronted with the witnesses

against him [or her].’”       Balisbisana, 83 Hawai#i at 115, 924 P.2d

at 1221.    “Indeed, the main and essential purpose of

confrontation is to secure for the opponent the opportunity of

cross-examination[,] . . . [and] the exposure of a witness’

motivation in testifying is a proper and important function of

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the constitutionally protected right of cross examination.”             Id.

(alteration in original) (quoting Delaware v. Van Arsdall, 475

U.S. 673, 678-79 (1986)).      Additionally, HRE Rule 609.1(a) (1993)

provides that the “credibility of a witness may be attacked by

evidence of bias, interest, or motive.”         This court has

established that “bias, interest, or motive is always relevant

under HRE Rule 609.1.”     State v. Levell, 128 Hawai#i 34, 40, 282

P.3d 576, 582 (2012) (brackets omitted) (quoting State v.

Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987)).

           When determining whether a defendant has been afforded

his constitutional right to demonstrate bias or motive on the

part of the complaining witness, the appropriate inquiry “is

whether the jury had sufficient information from which to make an

informed appraisal of [the complaining witness’s] motives and

bias[.]”   Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222; see

also Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[T]he

appropriate inquiry is whether the trier of fact had sufficient

information from which to make an informed appraisal of the

witness’s motives and bias.”).

           Once this step has been satisfied, the court may then

consider whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice.             See

Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[E]vidence of


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witness bias is relevant, and . . . the trial court’s discretion

to exclude evidence under HRE Rule 403 only becomes operative

after the threshold level of inquiry under the confrontation

clause has been afforded.”).      As such, the second step is not

triggered until the defendant is afforded the threshold level of

inquiry under the confrontation clause; once this occurs, the

trial court may conduct a balancing test to weigh the probative

value of any additional motive evidence against its potential for

undue prejudice.    Id. at 39, 282 P.3d at 681 (“[T]he trial

court’s discretion becomes operative ‘only after the

constitutionally required threshold level of inquiry has been

afforded the defendant.’” (quoting Balisbisana, 83 Hawai#i at

114, 924 P.2d at 1220)).

          In the present case, the ICA concluded under the first

step that Acacio’s right to confrontation was not violated

because the jury had sufficient information to make an informed

appraisal of the CW’s motive.       Acacio, 2016 WL 4078838, at *2.

The ICA explained that, although the circuit court did not allow

Acacio to cross-examine the CW about her knowledge of Acacio’s

immigration status, the circuit court did allow cross-examination

as to the CW’s “general understanding that if Acacio got

arrested, he would leave their shared residence.”           Id.   Then,

under the second step, the ICA conducted a balancing test and

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concluded that the “probative value of the proffered evidence to

show the CW’s motive and bias to testify falsely was attenuated

and weak,” while the potential for prejudice was much stronger.

Id.

             For the following reasons, we conclude that the ICA

erred under both steps of its analysis.

             1.    Acacio was not afforded the threshold level of
                   inquiry under the confrontation clause because the
                   jury did not have sufficient information to
                   evaluate the CW’s motive.

             The ICA erred under the first step of this test when it

concluded that the circuit court provided Acacio “ample

opportunity [under the Sixth Amendment] to cross-examine the CW

to demonstrate her bias or motive to lie.”            Acacio, at *2.      This

court has considered variations of this issue in several cases

and has clearly stated that the trier of fact must have

sufficient information from which to make an informed appraisal

of the complaining witness’s motives and bias.

             For example, in Balisbisana, the defendant was charged

with abuse of a family or household member.             83 Hawai#i at 111,

924 P.2d at 1217.       At trial, the family court excluded reference

to the complaining witness’s conviction for harassing the

defendant, and the defendant was subsequently convicted.               Id. at

113, 924 P.2d at 1219.        The defendant appealed and argued that


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the circuit court’s exclusion of the complaining witness’s

conviction violated his right to confront the witness and expose

evidence of her motive for bringing false charges against him.

Id. at 113-14, 924 P.2d at 1219-20.        This court agreed with the

defendant, and vacated his conviction.         Id. at 116-17, 924 P.2d

at 1222-23.

           In coming to this conclusion, this court explained that

“[t]he appropriate inquiry, therefore, is whether the jury had

sufficient information from which to make an informed appraisal

of [the complaining witness’s] motives and bias, absent evidence

of her conviction for harassing [the defendant].”           Id. at 116,

924 P.2d at 1222.     This court noted that the “trial court

prohibited all inquiry into [the complaining witness’s]

conviction for harassing [the defendant]” and that a “reasonable

jury might have received a significantly different impression of

[the complaining witness’s] credibility had [the defendant’s]

counsel been permitted to pursue his proposed line of cross-

examination.”   Id.    As such, this court held that the “trial

court abused its discretion in excluding evidence of [the

complaining witness’s] conviction from which the jury could have

inferred that [the complaining witness] had a motive to bring

false charges against [the defendant] and give false testimony at

trial.”   Id.


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          Likewise, in State v. Marcos, 106 Hawai#i 116, 102 P.3d

360 (2004), the defendant, who was charged with and convicted of

abuse of a family or household member, was not allowed to cross-

examine the complaining witness about the pending family court

case concerning the custody of their child.          On appeal, the

defendant argued that the complaining witness had a motive to

fabricate her allegations against him, and that his right to

cross-examine the complaining witness to demonstrate her motive

was violated.   Id. at 117, 102 P.3d at 361.

          This court agreed with the defendant and concluded that

he “had the right on cross examination to establish bias or

prejudice.”   Id. at 122, 102 P.3d at 366.        Citing to Balisbisana,

this court reiterated that “the jurors were entitled to have the

benefit of the defense theory before them so that they could make

an informed judgment as to the weight to place on [the

complaining witness’s] testimony which provided a crucial link in

the proof.”   Id.   As such, this court held that the defendant’s

right of confrontation, as guaranteed by the United States and

Hawai#i Constitutions, was violated.        Id.

          More recently, in Levell, the defendant was charged

with harassment for allegedly shoving the complaining witness.

128 Hawai#i at 35, 282 P.3d at 577.       Prior to the commencement of

trial, the circuit court denied the defendant’s motion to cross-


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examine the complaining witness on whether she had stolen and

used the defendant’s credit cards after he was arrested.            Id. at

35-36, 282 P.3d at 577-78.      The circuit court decided that

evidence of the stolen credit cards was not relevant and was

outweighed by the danger of unfair prejudice to the complaining

witness.   Id. at 36, 282 P.3d at 578.       This court vacated and

remanded this decision and held that the defendant’s right to

confrontation was violated:
                 Respondent’s case against Petitioner hinged on the
           court’s willingness to believe Complainant’s testimony over
           Petitioner’s version of the events, and Petitioner’s
           accusation against Complainant may have given her a motive
           to slant the nature of her testimony against Petitioner.
           Had Petitioner been allowed to ask, he might have succeeded
           in eliciting testimony from Complainant tending to show that
           she was biased or had a motive to fabricate or exaggerate a
           story about harassment and to testify falsely in court.
           This, in turn, could have affected the court’s view of
           Complainant’s credibility, and might have led the court to
           conclude that Respondent had not proven its case. Without
           evidence of Complainant’s potential bias or motive, the
           court did not have a sufficient basis from which to make an
           informed appraisal of Complainant’s credibility. See
           Balisbisana, 83 Hawai#i at 116, 924 P.2d at 1222. As such,
           Petitioner’s right to confrontation was violated when the
           court prevented him from cross-examining Complainant about
           the alleged credit card theft.

Id. at 40, 282 P.3d at 582.

           As these cases illustrate, in order to satisfy the

confrontation clause, a defendant must be given the opportunity

to cross-examine a witness as to his or her bias or motive.

Applying this rule to the present case, the circuit court clearly

curtailed Acacio’s effort to extract specific information from

the CW relating to her motive when it prohibited cross-

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examination of the CW as to her knowledge of Acacio’s immigration

status.     This information, specifically the CW’s awareness of

Acacio’s risk of deportation if he were arrested, raises the

question of whether the CW accused Acacio of these offenses in

order to have Acacio deported and permanently removed from her

life.     This information was especially important for the jury to

consider in light of the CW’s earlier testimony that she wanted

Acacio out of the house but that he still had not left two weeks

after their break-up.        The possibility of Acacio’s deportation

presented a lasting solution to the CW’s relationship issues with

Acacio, and may have motivated the CW to exaggerate or fabricate

her story.      As such, without evidence of the CW’s knowledge of

Acacio’s risk of deportation if arrested, the jury did not have

sufficient information from which to make an informed appraisal

of the CW’s motive.

             The ICA determined that the jury did have sufficient

information from which to make an informed appraisal of the CW’s

motive because the circuit court allowed Acacio to establish

through the CW’s testimony that:            1) she wanted Acacio out of the

house, 2) she was angry that Acacio remained in the house after

she asked him to leave, and 3) she was angry with Acacio right

before she spoke to police officers.           Acacio, 2016 WL 4078838, at

*2.    We disagree.     In Levell, this court did not accept a similar


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argument when it determined that giving a defendant “considerable

latitude” during cross-examination of the complaining witness is

not sufficient if the defendant is deprived of an opportunity to

present evidence about the source of the complaining witness’s

potential bias or motive.      128 Hawai#i at 41, 282 P.3d at 583.

The Levell court concluded that the circuit court erred in

precluding cross-examination of the complaining witness as to the

credit card issue because “the court did not have in its

possession sufficient information to apprise itself of the

alleged bias and motivation of Complainant on what Petitioner

indicated was the source of such a bias or motivation -– the

alleged credit card theft.”      Id.

          Similarly, the jury in this case did not have

sufficient information to apprise itself of the source of the

CW’s alleged motivation for calling the police and testifying

against Acacio, namely that the CW was trying to permanently

remove Acacio from her house and her life by removing him from

the country.   As such, the circuit court did not afford Acacio

with the threshold level of inquiry required under the

confrontation clause; the ICA erred in concluding otherwise under

the first step of its analysis.




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            2.    The CW’s motive evidence was improperly excluded
                  pursuant to HRE Rule 403.3

            Even if the ICA were correct that the threshold level

of inquiry was met under the confrontation clause, the ICA erred

in the second step of its analysis when it concluded that the

evidence of the CW’s knowledge of Acacio’s immigration status was

properly excluded under HRE Rule 403.

            HRE Rule 403 (1993) provides:        “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.”

            The circuit court was concerned that evidence of

Acacio’s immigration status was unduly prejudicial because

“penalty and punishment shall not be considered by the jury and

deportation of a person is a form of punishment.”            Similarly, the

ICA noted that “a jury’s verdict cannot be based on sympathy for

the defendant” and that the evidence of Acacio’s immigration



3
      We note that this step in our analysis is not necessary because we
conclude that the threshold level of inquiry under the confrontation clause
was not met. See Levell, 128 Hawai#i at 40, 282 P.3d at 582 (“[T]he trial
court’s discretion to exclude evidence under HRE Rule 403 only becomes
operative after the threshold level of inquiry under the confrontation clause
has been afforded.”). We address the ICA’s analysis under the second step,
however, for the sake of thoroughness and to provide guidance in this area of
the law.

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status “created a substantial risk that the jury would be unduly

influenced or distracted by concerns that a finding of guilt

would lead to Acacio’s deportation -- an improper subject for the

jury to consider.”    Acacio, 2016 WL 4078838, at *2.

          It is true that questions about a defendant’s

immigration status are generally considered both irrelevant and

prejudicial in criminal proceedings.        See State v. Avendano-

Lopez, 904 P.2d 324, 331 (Wash. Ct. App. 1995) (“Questions

regarding a defendant’s immigration status are similarly

irrelevant and designed to appeal to the trier of fact’s passion

and prejudice and thus are generally improper areas of

inquiry.”); Salas v. Hi-Tech Erectors, 230 P.3d 583, 586 (Wash.

2010) (“Issues involving immigration can inspire passionate

responses that carry a significant danger of interfering with the

fact finder’s duty to engage in reasoned deliberation.”);

Gonzalez v. City of Franklin, 403 N.W.2d 747, 760 (Wis. 1987)

(noting that evidence of the possibility of the defendant’s

deportation if found guilty would have an “obvious prejudicial

effect” for the defendant).

          However, in this case, questions about Acacio’s

immigration status were not used for an improper purpose.             See

Avendano-Lopez, 904 P.2d at 331 (“It is well-established that

appeals to nationality or other prejudices are highly improper in


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a court of justice, and evidence as to the race, color, or

nationality of a person whose act is in question is generally

irrelevant and inadmissible if introduced for such a purpose.”

(emphasis added)).    In this case, the DPD made it clear that she

was introducing this evidence in order to show the CW’s motive,

and the circuit court acknowledged that the line of questioning

was not done in bad faith.

          Additionally, the circuit court’s concern about unfair

prejudice could have been allayed by a limiting instruction,

which would have directed the jury to consider Acacio’s

immigration status only for the purpose of evaluating the motive

of the CW, and not for purposes of penalty, punishment, or other

collateral consequences.      Thus, because Acacio’s immigration

status was highly probative evidence of the CW’s motive, and

because its prejudicial effect could have been contained through

a limiting instruction, the ICA erred in concluding that the

circuit court did not abuse its discretion when it excluded the

evidence from trial.

          In sum, we conclude that the ICA erred in both steps of

its analysis on this point of appeal.        Accordingly, Acacio’s

right to confrontation was violated when the circuit court

prevented him from cross-examining the CW about her knowledge of

his immigration status.     We turn now to examining whether this


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error was harmless.

B.    The error was not harmless beyond a reasonable doubt.

            “Denial of a defendant’s constitutionally protected

opportunity to impeach a witness for bias, motive or interest is

subject to harmless error analysis.”          Balisbisana, 83 Hawai#i at

117, 924 P.2d at 1223 (citing State v. Corella, 79 Hawai#i 255,

261, 900 P.2d 1322, 1328 (App. 1995)).           “In applying the harmless

beyond a reasonable doubt standard the court is required to

examine the record and determine whether there is a reasonable

possibility that the error complained of might have contributed

to the conviction.”       Pond, 118 Hawai#i at 461, 193 P.3d at 377

(citing Balisbisana, 83 Hawai#i at 113-14, 924 P.2d at 1219-20).

This court considers a number of factors in determining whether

an error is harmless in this context, including “the importance

of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution’s case.”       Levell, 128 Hawai#i at 42, 282 P.3d at 584

(quoting Olden v. Kentucky, 488 U.S. 227, 233 (1988)); see also

Balisbisana, 83 Hawai#i at 117, 924 P.2d at 1223.

            Here, there is a reasonable possibility that the


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circuit court’s error might have contributed to Acacio’s

conviction.   The CW’s testimony was crucial to the prosecution’s

case because she was the only eyewitness to Acacio’s alleged

threat and abuse against her.       Because the alleged threats and

abuse occurred in the CW’s bedroom, with only Acacio and the CW

present, the case turned on the credibility of these two parties.

As such, evidence of the CW’s motive to exaggerate or fabricate

her story would have been helpful for the jurors in assessing the

CW’s credibility and in ultimately determining which party to

believe.

           And while the circuit court allowed cross-examination

as to the CW’s potential ulterior motives for fabricating an

allegation of abuse, the court did not permit any cross-

examination with respect to the CW’s potential motive to get

Acacio deported.    The possibility of Acacio’s deportation, which

would appear to permanently solve the CW’s issues with her ex-

boyfriend, could have furnished a strong motive for the CW to

testify falsely.    As such, we conclude that there is a reasonable

possibility that the circuit court’s error in limiting the CW’s

testimony on the subject of Acacio’s immigration status might

have contributed to Acacio’s conviction and was thus not harmless

beyond a reasonable doubt.




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                             V.   CONCLUSION

          For the foregoing reasons, we vacate the ICA’s

September 9, 2016 judgment on appeal, vacate the circuit court’s

February 4, 2013 judgment of conviction and probation sentence,

and remand this case to the circuit court for a new trial.

Jon N. Ikenaga                        /s/ Mark E. Recktenwald
and Titiimaea N. Ta#ase
for petitioner                        /s/ Paula A. Nakayama

Brian R. Vincent                      /s/ Sabrina S. McKenna
for respondent
                                      /s/ Richard W. Pollack

                                      /s/ Michael D. Wilson




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