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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-29390
                                                              11-MAY-2012
                                                              10:39 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                            ---o0o---
_________________________________________________________________

         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee

                                    vs.

       LESS ALLEN SCHNABEL, Petitioner/Defendant-Appellant
_________________________________________________________________

                             NO. SCWC-29390

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 29390; CR. NO. 07-1-0863)

                              May 11, 2012

      ACOBA, DUFFY, AND MCKENNA, JJ.; AND RECKTENWALD, C.J.,
            DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                  OPINION OF THE COURT BY ACOBA, J.

          We hold first, that, Hawai#i Revised Statutes (HRS) §

571-84(h) clearly and unambiguously prohibits the use of evidence

from juvenile proceedings in any adult criminal case for any

purpose whatsoever.     Accordingly, the Intermediate Court of

Appeals (ICA) gravely erred in affirming the ruling of the
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circuit court of the first circuit (the court), that

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) would

be allowed to introduce evidence from the prior juvenile

proceedings of Petitioner/Defendant-Appellant Less Allen

Schnabel, Jr. (Petitioner), if Petitioner testified on cross-

examination in the instant case that he did not know a single

punch could cause the death of a person, State v. Schnabel, No.

29390, 2010 WL 4546655, at *2-3 (App. Nov. 12, 2010) (mem.).

Secondly, we hold that the statement of the Deputy Prosecuting

Attorney (DPA) to the jury during closing arguments not to “get

too caught up in the mumbo jumbo of all the words [of the jury

instructions,]” among other statements, infringed on Petitioner’s

right to have the case against him proven beyond a reasonable

doubt.    Accordingly, the December 15, 2010 judgment of the ICA,

filed pursuant to its November 12, 2010 Memorandum Opinion (memo

op.),1 affirming the court’s September 10, 2008 judgment of

conviction and sentence, is vacated.         This case is remanded for

proceedings consistent with this opinion.2          Each of the aforesaid

      1
            The memo op. was filed by presiding Judge Alexa D.M. Fujise and
Associate Judges Lawrence M. Reifurth and Lisa M. Ginoza.

      2
            We find no error in the other points raised by Petitioner and
affirm the ICA’s opinion insofar as it held that (1) trial counsel was not
ineffective for failing to subpoena the physician who had attended to
Christopher Reuther prior to his death and who had signed the death
certificate, Schnabel, 2010 WL 4546655, at *3, (2) the DPA did not engage in
prosecutorial misconduct in displaying a power point slide during closing
arguments which stated, “Is there a substantial and unjustifiable risk of
death from one punch? . . . Ask [Reuther] if it’s substantial and unjustified.
He’s dead!”, id. at *3-4, (3) there was sufficient evidence to sustain
                                                                (continued...)

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errors, standing alone, provides an ample basis for vacation.

However, in order to avoid similar errors from being made on

remand, both errors are addressed.

                                     I.

            The following essential matters are from the record and

the submissions of the parties.

                                     A.

            On April 22, 2007, at Zablan Beach Park in Nanakuli,

Hawai#i, Petitioner allegedly caused the death of Christopher

Reuther (decedent) by one punch.          Id. at *1.   Respondent’s

witnesses testified that they met decedent at the park, began

conversing with him, and eventually invited him to camp with them

overnight.    At some point decedent left the group, against their

warning not to do so, and headed toward the restrooms.             According

to Respondent’s witnesses, as decedent was walking to his car,

Petitioner approached him from behind and hit him in the face.

Immediately thereafter, decedent “spun out” in a “half-circle” or

“jump[ed] around” before collapsing to the ground.            Respondent’s

witnesses testified that Petitioner’s actions were unprovoked.

            The defense’s witness, Kristie Reverio (Reverio),

testified that decedent was walking towards the parking lot and



      2
       (...continued)
Petitioner’s conviction notwithstanding Petitioner’s asserted claim of self-
defense, id. at *5-6, and (4) there was sufficient evidence that Petitioner
recklessly caused Reuther’s death, id. at *6-7.

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taking photographs near where she and Petitioner were standing.

Petitioner confronted decedent and asked him if he was taking

pictures of them.     Decedent responded that he had only taken a

picture of the stop sign.       Reverio and Petitioner thought

decedent was being “sarcastic” and asked to see his camera’s

viewfinder.    Decedent held out the camera for them, but then

pulled it back and began walking towards his car with a “smirk”

on his face.    Petitioner told decedent, “[Y]ou cannot be doing

things like that over here, you need to leave.”

            Decedent then approached Petitioner and stated, “[Y]ou

cannot tell me what to do,” while in a “fighting stance.”

Reverio thought Petitioner and Decedent “were going to fight.”

At that moment, Petitioner punched Decedent on his right cheek.

Decedent then fell backward, stood back up, staggered forward,

and fell down.

                                     B.

             On May 8, 2007, Petitioner was charged with (1)

Manslaughter, Hawai#i Revised Statutes (HRS) § 707-702(1)(a)

(Supp. 2007)3 and (2) Unauthorized Entry into a Motor Vehicle in




      3
            HRS § 707-702(1)(a) provides that “[a] person commits the offense
of manslaughter if . . . [t]he person recklessly causes the death of another
person[.]”
            HRS § 702-206 (1993) provides in part that “[a] person acts
recklessly with respect to his conduct when he consciously disregards a
substantial and unjustifiable risk that the person’s conduct is of the
specified nature.”

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the First Degree, HRS § 708-836.5 (Supp. 2007).4           Prior to trial,

Respondent filed a Notice of Intention to Use Specified Evidence

(Notice) indicating that, at trial, it would seek to introduce

the following evidence relating to Petitioner’s juvenile

proceedings:    (1) on September 1, 2002, Petitioner attended a

party at Nanakuli Beach Park and as complainant attempted to

“shake [Petitioner’s] hand, [complainant] was suddenly punched on

the left side of his face[,] causing [him] to fall to the ground

where he was thereafter kicked in the face several times[,]”5 (2)

Petitioner was “present at his entire trial[,]” and (3) Dr. Jorge

Camara (Dr. Camara) testified “that an orbital fracture . . . can

cause not only a rupture of the bone socket[,]” but could also

cause a “subdural hematoma in the brain[,]” which “could then

create a ‘substantial risk of death.’”          Respondent attached a

transcript of Dr. Camara’s testimony given at Petitioner’s

juvenile proceedings as an exhibit to its Memorandum in support

of the Notice.     According to Respondent, the aforementioned


      4
            HRS § 708-836.5, entitled “Unauthorized entry into motor vehicle
in the first degree,” states, in relevant part:

                  (1) A person commits the offense of unauthorized
            entry into motor vehicle in the first degree if the person
            intentionally or knowingly enters or remains unlawfully in a
            motor vehicle, without being invited, licensed, or otherwise
            authorized to enter or remain within the vehicle, with the
            intent to commit a crime against a person or against
            property rights.

      5
            Although Respondent stated that it intended to use at trial the
“evidence” from Dr. Camara that complainant was “kicked in the face several
times[,]” in fact Dr. Camara testified that he did not know exactly where
complainant was kicked, but that complainant was punched in the eye.

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evidence was admissible to show that Petitioner “was on notice

that similar acts in the future could cause much more serious

injuries[.]”

            The defense filed a motion in limine to preclude

Respondent from introducing Dr. Camara’s testimony pursuant to

Hawai#i Rules of Evidence (HRE) Rules 402 (2010)6 and 403 (1993).7

At the hearing on the motion, Respondent argued that evidence

from the juvenile proceedings was relevant to Petitioner’s

“knowledge” that his conduct, i.e., a single punch, could cause a

substantial risk of death.       The defense argued that the injuries

involved in the juvenile proceedings were “not the same type of

injury” as the one in this case because the juvenile case

involved “punches and kicks” which were “likely to be much more

damaging than a punch.”       Defense counsel additionally noted that

Dr. Camara did not testify that those acts “would cause[,]” but

“could cause,” bleeding in the brain.         Finally, it was argued by

the defense that at the time of the juvenile proceedings,

Petitioner was seventeen years old and “in a traumatic situation

where we hope he was paying attention but well may not have

been.”


      6
            HRE Rule 402 states in relevant part that “[e]vidence which is not
relevant is not admissible.”

      7
            HRE Rule 403 states that, “[a]lthough 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.

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            After taking the matter under advisement, the court

initially ruled that Respondent could not introduce any evidence

relating to Petitioner’s juvenile proceedings.8           Subsequently,

however, during further pre-trial proceedings, Respondent moved

the court to reconsider its ruling.           Respondent also asked the

court, in the alternative, “to at least allow [Respondent] to--if

[Petitioner] . . . takes the stand and is cross-examined[,] to

make reference to the fact[.]”9           The court answered that

reconsideration was “not going to happen,” but considered “what

[might] happen[] if [Petitioner] takes the stand and he says he

was completely unaware, totally unaware, hit somebody in the




      8
            The court ruled as follows:

            [T]his court finds that both the breadth and depth and
            intensity of the emotions around this case were other than
            what the court initially thought they would be. Therefore,
            I’m going to deny this prior incident completely. The only
            option would be [Respondent would] have to approach the
            court. [The court would] have to hear what [Petitioner] had
            to say, if anything, then measure it at that point, but
            basically it’s not coming in at all. I’m not going to bet
            against myself so to speak or anticipate. . . . I understand
            that it’s relevant under [HRE Rule] 404 . . . but [HRE Rule
            403] has caused me to reconsider. . . . [T]he way the
            jurors responded and my take was . . . way more emotion than
            I thought . . . it would be with the jurors. . . . It’s a
            mainland visitor; it’s Nanakuli; it’s a law student; they
            donated the organs and he apparently allegedly did nothing
            to provoke it, but we all gotta hear the story . . . when it
            actually comes out, so it’s not coming in. No if [sic], and
            [sic] or buts[.]”

(Emphasis added.)

      9
            It would appear Respondent was referring to the “fact” that
Petitioner was present during his juvenile proceedings and heard Dr. Camara’s
testimony.

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head, that they [sic] might cause them [sic] serious injury or

death.”

          Defense counsel stated that if the court allowed

Respondent to ask Petitioner whether he knew a single punch

“could,” as opposed to “would,” cause death, Petitioner’s “answer

will be ‘no.’”    Defense counsel related that even if he did

respond in that manner, evidence of Dr. Camara’s testimony would

not be “sufficient to prove that [Petitioner] did know

differently” since Dr. Camara’s testimony was about “a punch and

kicks” which, when “combined[,] could cause subdural hematoma

[which] could cause death[.]”       Defense counsel further asserted

that the evidence would “mislead the jury,” “distract [it] from

trying this case[,]” and would “be highly prejudicial[.]”

          The court then expressed its concern that “most of the

men on the jury -- . . . -- understand that a large man that

punches another man could kill him.”        Thus, the court responded

that, if Respondent laid a foundation regarding Petitioner’s

height and weight on the date of the incident and argued that the

punch “was a sucker punch or a false crack[,] . . . and

[Petitioner] says no way” a punch can cause the death of a

person, its “inclination [would be] to give [Respondent] some

latitude over [the defense’s] strong objection[.]”

                                    C.

          In addition to the testimony described supra, the chief


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medical examiner for the City and County of Honolulu (medical

examiner) also testified.      The medical examiner related that

based on the information provided by the hospital and from the

investigator who read the hospital reports, the cause of death

was believed to be an aneurysm.       She recounted, however, that

because there was a “small tear” in decedent’s “basilar artery”

and a bruise behind his ear consistent with a “fist blow,” it was

her opinion that decedent died as a result of a “traumatic

subarachnoid hemorrhage” caused by an “assaultive blunt force

injury to the head.”     The medical examiner observed that while

“you see subarachnoid hemorrhage, non-trauma related[,]” trauma-

related subarachnoid hemorrhage is “not very common.”            In her

opinion, decedent’s injury was “unique.”

            As to the difference between the medical examiner’s

conclusion regarding the cause of death and the conclusion of the

hospital, she stated, “I think at that point[,] all [the hospital

doctors] knew from their scans was that [decedent] had []

bleeding in the subarachnoid space, which means covering the

brain[.]”    She explained that the hospital would not have seen

the tear “because there was no time for them to inject dye in

the[] blood vessels[,] . . . [b]ut at the autopsy, [she] injected

dye.”   The medical examiner stated that she “did not see any

aneurysms as the doctors suspected, but instead saw [a] tear[.]”

In her view, “you never see an aneurysm right [t]here [where the


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tear was located; y]ou see aneurysms in different areas, but what

I saw was a fresh, tiny torn area.”

          Petitioner did not testify.        After the prosecution

rested, the court permitted defense counsel to state on the

record that Petitioner had decided not to testify based in part

on the fact that Respondent would be allowed to introduce Dr.

Camara’s testimony from Petitioner’s juvenile proceedings if

Petitioner testified that he did not know a single punch could

cause the death of a person.       The court stated,
          And [] the reasons stated by you . . . I think are pretty
          accurate, that we started picking jury [sic], I was going to
          let in the so-called prior with a limiting instruction. It
          became clear to me that the gravity was going to keep us
          from getting a jury and the jury read it differently than I
          did, and so the Court decided to keep that out and not allow
          it. The Court decided that [if] the door was opened, it
          would give a very limiting instruction there, but allow
          [Respondent] to get into the earlier situation.

(Emphases added.)

                                    D.

          On July 7, 2008, the court instructed the jury, among

other things, as to the presumption of innocence and proof beyond

a reasonable doubt.10    On the same day, during closing argument,


     10
          The court gave the jury the standard instruction as follows:

                You must presume the defendant is innocent of the
          charges against him. This presumption remains with the
          defendant through the trial of the case, unless and until
          the prosecution proves the defendant guilty beyond a
          reasonable doubt.
                The presumption of innocence is not a mere slogan but
          an essential part of the law that is binding upon you. It
          places upon the prosecution the duty of proving every
          material element of the offense charged against the
                                                               (continued...)

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the DPA stated,
            And when you go in the deliberation room, read the[ jury]
            instructions but use your common sense. That’s what this is
            all about. It’s all about common sense. Don’t get too
            caught up in the mumbo jumbo of all the words but use your
            common sense. . . . [D]ig deep down inside and ask
            yourself, deep down inside, you know, the gut feeling we
            talk about deep down inside. Put aside those words. You’ve
            heard them. You’re analyzing them. And then you reach down
            deep inside, deep down inside: Is he guilty? And if you
            can say that, that’s your common sense.

(Emphases added.)     The defense immediately objected.          The court

held a bench conference during which defense counsel argued that




      10
       (...continued)
            defendant beyond a reasonable doubt.
                  You must not find the defendant guilty upon mere
            suspicion or upon evidence which only shows that the
            defendant is probably guilty. What the law requires before
            the defendant can be found guilty is not suspicion, nor
            probabilities, but proof of the defendant’s guilt beyond a
            reasonable doubt.
                  What is reasonable doubt?
                  It is a doubt in your mind about the defendant’s guilt
            which arises from the evidence presented or from the lack of
            evidence and which is based upon reason and common sense.
            Each of you must decide, individually, whether there is or
            is not such a doubt in your mind after careful and impartial
            consideration of the evidence.
                  Be mindful, however, that a doubt which has no basis
            in the evidence presented, or the lack of evidence, or
            reasonable inferences therefrom, or a doubt which is based
            upon imagination, suspicion or mere speculation or guesswork
            is not a reasonable doubt.
                  What is proof beyond a reasonable doubt?
                  If, after consideration of the evidence and the law,
            you have a reasonable doubt of the defendant’s guilt, then
            the prosecution has not proved the defendant’s guilt beyond
            a reasonable doubt and it is your duty to find the defendant
            not guilty.
                  If, after consideration of the evidence and the law,
            you do not have a reasonable doubt of the defendant’s guilt,
            then the prosecution has proved the defendant’s guilt beyond
            a reasonable doubt and it is your duty to find the defendant
            guilty.

(Emphasis added.)


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the jury was not permitted to decide whether Petitioner was

guilty “on their gut.”      Defense counsel stated, “It’s whether

[Respondent] has proven beyond a reasonable doubt that

[Petitioner]’s guilty that they have to answer.            To say otherwise

implies that if you have a gut feeling he’s guilty, he’s just

guilty, forget the instructions.”

            The DPA responded that “[t]he argument is that the

feeling inside is your common sense speaking to you.             Common

sense is what supports all of their decisions in applying the law

and determining what the facts are.”         The court overruled the

defense’s objection, but gave the following instruction to the

jury:
            Ladies and gentlemen of the jury, I give attorneys some
            latitude at closing. The instructions you have as to what
            reasonable doubt is and isn’t and that pity, passion and
            prejudice have no play, I’ll allow you to argue that
            basically as an illustration of your take on common sense.
            There’s no definition of common sense so I’ll give you a
            little bit of latitude over objection.

(Emphasis added.)

            Two days later, on July 9, 2008, the court, without

explaining its reasons for doing so, generally instructed the

jury once again on reasonable doubt.11         Following deliberations,

which took place thereafter, the jury found Petitioner guilty of

Manslaughter and not guilty of Unauthorized Entry Into a Motor




      11
            Judge Michael D. Wilson gave the instruction, explaining that
Judge Town was unable to be there due to prior obligations.

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Vehicle.   Petitioner was sentenced to twenty years of

imprisonment.    The judgment of conviction and sentence was

entered on September 10, 2008.

                                     II.

           On October 2, 2008, Petitioner filed a notice of appeal

from the judgment of conviction and sentence.           Relevant to our

disposition, Petitioner contended that (1) the court abused its

discretion in ruling that evidence from Petitioner’s juvenile

proceedings would be admissible if Petitioner testified that he

did not know his conduct could cause death and (2) Respondent

engaged in prosecutorial misconduct during closing argument.12

           As to the first of the foregoing contentions, the ICA

concluded that, if Petitioner had testified that he was unaware

that a single punch could cause death, “he would have opened the

door to cross-examination about what he learned in the juvenile

proceedings from Dr. Camara’s testimony” inasmuch as “‘[t]he

proper scope of cross-examination includes full development of

matters broached on direct examination, including facts

reasonably related to matters touched on direct.’”            Schnabel,

2010 WL 4546655, at *3 (quoting State v. McElroy, 105 Hawai#i



      12
            Petitioner alleged that the DPA engaged in misconduct on two
occasions during closing arguments. The first related to power point slides.
The second related to the DPA’s urging the jurors to decide the case from
their “gut.” As indicated earlier, we affirm the ICA’s conclusion that the
use of the power point slide did not constitute prosecutorial misconduct. See
supra note 2.

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352, 356, 97 P.3d 1004, 1008 (2004) (quoting State v. Napulou, 85

Hawai#i 49, 57, 936 P.2d 1297, 1305 (App. 1997))).

            According to the ICA, although evidence of a

defendant’s prior bad acts is generally inadmissible, “‘[p]rior

bad act’ evidence under [HRE] Rule 404(b) (1993)[13] is

admissible when ‘it is 1) relevant and 2) more probative than

prejudicial.’”     Id. at *2 (quoting State v. Maelega, 80 Hawai#i

172, 183, 907 P.2d 758, 769 (1995)).         The ICA determined that Dr.

Camara’s testimony would be relevant within the meaning of HRE

Rule 401 (1993)14 “if [Petitioner] had testified that he did not

know that one punch could cause death” because “even though the

incident in the juvenile proceeding did not involve a single

punch, it was evidence having a tendency to make [Petitioner’s]

proffered assertion that he did not know a single punch could

cause death ‘more probable or less probable than it would be

without the evidence.’”       Id. (quoting HRE Rule 401).



      13
            HRE Rule 404(b) provides in pertinent part as follows:

            Other crimes, wrongs, or acts. 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.

      14
            HRE Rule 401 provides that “‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it
would be without the evidence.”

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            It was further decided that, because the court stated

it intended to provide a limiting instruction15 in the event Dr.

Camara’s testimony was admitted and because Respondent would be

prevented from disclosing Petitioner’s conviction in those

proceedings, Dr. Camara’s testimony would be more probative than

prejudicial under HRE Rule 403 (1993).          Id.   The ICA ruled that

if Petitioner had testified as indicated, he would have opened

the door to cross-examination about what he learned in the

juvenile proceedings from Dr. Camara’s testimony.            Id.   It was

ultimately held that the court’s ruling as to the admissibility

of Dr. Camara’s testimony was not an abuse of discretion.              Id. at

*2-3.

            As to the second contention raised by Petitioner, the

ICA did “have a concern about the DPA saying ‘[d]on’t get too

caught up in the mumbo jumbo of all the words but use your common

sense.’”    Id. (brackets in original).       However, the ICA observed

that “upon objection from defense counsel, the [court] stated it

would allow the argument as an illustration,” noting “that ‘the

jury ha[d] the instructions[,]’” and “after a further objection

and a bench conference, the [court] immediately gave a curative

instruction.”     Id.   The ICA stated, “Given these circumstances,



      15
            While the court did indicate that it would give a “limiting
instruction” in the event evidence from Petitioner’s juvenile proceedings was
admitted, there is no indication in the record regarding what the limiting
instruction would have been.

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in particular the immediate curative instruction . . . as well as

the strength of the evidence against [Petitioner], we conclude

that the statements of the DPA were harmless beyond a reasonable

doubt.”    Id.

                                    III.

            On March 15, 2011, Petitioner filed an application for

writ of certiorari (Application), urging this court to review the

Memorandum Opinion of the ICA.        Petitioner presents the following

pertinent questions in his Application:
                  1. Whether the ICA gravely erred in affirming the []
            court’s holding that if [Petitioner] testified that he did
            not know that one punch could cause death[,] that
            [Respondent] could introduce Dr. Camara’s testimony from
            [Petitioner’s] juvenile proceedings[.]
                  . . . .

                  3. Whether the ICA gravely erred in holding that the DPA
            did not commit misconduct during closing arguments[. 16]

On March 21, 2011, Respondent filed a Response to the

Application.




      16
            The other questions raised in Petitioner’s Application were:

                  2. Whether the ICA gravely erred in holding that trial
            counsel was not ineffective for failing to subpoena the
            physician [who] had attended to the [decedent] prior to his
            death and who had signed the death certificate[.]
                  . . . .
                  4. Whether the ICA gravely erred in holding that there
            was sufficient evidence to sustain [Petitioner’s] conviction
            where his use of force had been in self-defense[.]
                  5. Whether the ICA gravely erred in holding that there
            was sufficient evidence that [Petitioner] recklessly caused
            [decedent’s] death[.]

            To reiterate, we affirm the ICA’s opinion as to the foregoing
questions, and therefore, they are not specifically addressed herein.

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                                       IV.

                In connection with the first question, Petitioner

argues that evidence from his juvenile proceedings was not

admissible because such evidence was not relevant.              See HRE Rule

401.        Petitioner notes that Dr. Camara testified an orbital

fracture resulting from several kicks and punches to the face

could result in a subdural hematoma, which could cause death; by

contrast, the instant case involved an alleged single punch to

the head.        Thus, he maintains that the juvenile incident was not

relevant because it “was factually dissimilar to the incident in

the instant case.”        According to Petitioner, the court’s error in

ruling that the evidence would be admitted if Petitioner

testified cannot be said to have been harmless because “it

impermissibly infringed on [his] right to testify” under the

Fifth and Fourteenth Amendments to the United States

Constitution17 and article I, sections 5 and 10 of the Hawai#i

Constitution.18




      17
            The Fifth Amendment to the United States Constitution provides in
relevant part that no person “shall be compelled in any criminal case to be a
witness against himself[.]” The Fourteenth Amendment to the United States
Constitution provides in relevant part that no “State [shall] deprive any
person of life, liberty, or property, without due process of law[.]”

       18
            Article I, section 5 of the Hawai#i Constitution provides that
“[n]o person shall be deprived of life, liberty or property without due
process of law, nor be denied the equal protection of the laws, nor be denied
the enjoyment of the person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.” Article I,
section 10 provides in relevant part that no person shall “be compelled in any
criminal case to be a witness against oneself.”

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            Respondent’s Response states that “Petitioner’s

presence at the [juvenile] proceeding . . . makes it reasonable

to presume he heard [Dr. Camara] render his opinion.”            Although

the juvenile incident did not involve a single punch, Respondent

contends Dr. Camara’s testimony would have a tendency to make

Petitioner’s assertion that he did not know a single punch could

cause death more or less probable than it would be without the

evidence.    Respondent asserts that Dr. Camara did not testify

that multiple blows to a person’s head were required to cause an

orbital fracture or resulting subdural hematoma, but, rather,

they could result in a subdural hematoma that could cause death.

Respondent states, “Simply put,” Dr. Camara’s testimony indicated

that “death can result from a powerful blow to the face.”

            Regarding any unfair prejudice, see HRE Rule 403,

Respondent points out that the court made clear such testimony

would only be allowed if Petitioner testified that he was unaware

a single punch could cause death.        Respondent additionally notes

that, in the event that evidence was adduced, the court “would

have issued a ‘very limiting instruction’ to ensure Petitioner

would not suffer any unfair prejudice.”

                                    V.

            On April 28, 2011, supplemental briefing as to the

applicability of HRS § 571-84(h) was ordered by this court with

respect to Petitioner’s first question.         In his Supplemental


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Brief filed on May 9, 2011, Petitioner argues that HRS § 571-

84(h) prohibits the use of evidence adduced in a juvenile

proceeding “in any civil, criminal, or other cause . . . for any

purpose whatever.”      Petitioner asserts that in State v. Nobriga,

56 Haw. 75, 527 P.2d 1269 (1974), this court “confirmed that

evidence adduced in a juvenile proceeding cannot be used in a

subsequent criminal case involving the same defendant.”

            Petitioner contends that such use is also prohibited

under HRS § 571-1 (2006 Repl.).19         In that vein, Petitioner

points out that in State v. Riveira, 92 Hawai#i 521, 993 P.2d 555

(2000) [hereinafter, Riveira II], this court overruled the ICA

majority in State v. Riveira, 92 Hawai#i 546, 993 P.2d 580 (App.

1999) [hereinafter, Riveira I], and “adopted [the] dissenting

opinion” which stated that under HRS § 571-1, “‘[a]ny evidence

given in any case under section 571-11 shall not in any civil,

criminal, or other cause in any court be lawful or proper

evidence against the child for any purpose whatever [] except in

subsequent cases involving the same child under section 571-11.’”

(Quoting Riveira I, 92 Hawai#i at 559, 993 P.2d at 593.             (Acoba,

J., dissenting).)     (Brackets omitted.)



      19
            HRS § 571-1, entitled “Construction and purpose of chapter[,]”
also provides in part, that “[a]ny evidence given in any case under section
571-11 shall not in any civil, criminal, or other cause in any court be lawful
or proper evidence against the child for any purpose whatever except in
subsequent cases involving the same child under section 571-11.” (Emphases
added.)

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            In sum, Petitioner contends that because HRS §§ 571-1

and 571-84(h) prohibit the use of evidence adduced in juvenile

proceedings for any purpose whatsoever, the court’s ruling as to

the admissibility of the juvenile proceedings was based on an

incorrect interpretation of the law.         Petitioner repeats that

such error cannot be said to be harmless where it infringed on

his constitutionally and statutorily protected right to testify.

            In its supplemental brief filed on May 9, 2011,

Respondent preliminarily declares that because Petitioner did not

object to Dr. Camara’s testimony based on HRS § 571-84(h), he may

not argue on appeal that the statute barred the introduction of

such evidence.     Next, Respondent argues that HRS § 571-84.6, and

not HRS § 571-84(h), is applicable in this matter.

            HRS § 571-84(a) generally withholds juvenile records

including transcripts from public inspection, except as provided

in HRS § 571-84.6.      HRS § 571-84(a) provides in relevant part as

follows:
                  (a) The court shall maintain records of all cases
            brought before it. Except as provided in section 571-84.6,
            in proceedings under section 571-11[,] . . . the following
            records shall be withheld from public inspection: the court
            docket, petitions, complaints, motions, and other papers
            filed in ant case; transcripts of testimony taken by the
            court; and findings, judgments, orders, decrees, and other
            papers other than social record filed in proceedings before
            the court.

(Emphases added.)     In that regard, HRS § 571-84.6 (2006 Repl.)20


      20
            The effective date of HRS § 571-84.6 was June 30, 1997. The
incident occurred on April 22, 2007. HRS § 571-84.6 was in effect during
                                                                (continued...)

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allows for public inspection of records and public proceedings in

certain limited circumstances.        That statute provides in relevant

part as follows:
                  (b) Notwithstanding any other law to the contrary, in
            any proceeding in which a minor age fourteen of age or older
            has been adjudicated by the court under section 571-11(1)
            for an act that if committed by an adult would:
                  . . . .
                  (2)   Result in serious bodily injury . . . of a
                        victim;
                  . . . .
            all legal records[ 21] related to the above stated proceeding
            shall be open for public inspection.
                  (c) Notwithstanding any other law to the contrary, in
            any case in which a minor age sixteen years of age or older
            comes within section 571-11(1) is taken into custody for an
            act that if committed by an adult would:
                  . . . .
                  (2)   Result in serious bodily injury . . . of a
                        victim;
                  . . . .
            all legal proceedings related to the above stated case shall
            be open to the public . . . .

(Emphases added.)     As stated before, HRS § 571-84(h) provides

that evidence in juvenile proceedings shall not be “lawful or

proper evidence against the minor therein” “in any cause”:22
                  (h) Evidence given in proceedings under section
            571-11(1) or (2) shall not in any civil, criminal, or other
            cause be lawful or proper evidence against the minor therein
            involved for any purpose whatever, except in subsequent
            proceedings involving the same minor under section 571-11(1)
            or (2).

(Emphases added.)



      20
       (...continued)
subsequent evidentiary rulings by the court.

      21
            HRS § 571-84.6(a) provides that a “‘[l]egal record’ means
petitions, complaints, motions, and other papers filed in any case;
transcripts of testimony taken by the court; and findings, judgments, orders,
decrees, and other papers and adjudication data, other than social records,
filed in proceedings before the court.” (Emphasis added.)

      22
            HRS § 571-84(h) is re-quoted for convenience.

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            Respondent asserts that because HRS § 571-84(a) and (h)

both “deal with testimony taken by the court[,]” they “must be

construed with reference to each other[.]”          (Citing HRS § 1-16)

(1993)).    According to Respondent, “[t]he clause

‘[n]otwithstanding any other law to the contrary,’ prefacing HRS

§ 571-84.6(b) and (c) indicates that” those subsections “govern

over . . . [HRS §] 571-84(h),” which pertains to the exclusion of

evidence.    Respondent maintains that the legislative history of

HRS § 571-84.6 also “supports the conclusion that [] ‘transcripts

of testimony taken by the court’ in [juvenile] proceedings[]

. . . would not be exempt from use in future criminal

proceedings.”     Respondent points to the following passage

regarding HRS § 571-84.6:
            [T]he purpose of this act is to eliminate the
            confidentiality of certain records and proceedings of
            juvenile law violators adjudicated for serious, repeat, or
            violent offenses in order to maintain public safety, to
            restore public confidence in the juvenile system, and to
            send a message to certain juvenile law violators that their
            actions will be treated seriously.

(Quoting 1997 Haw. Sess. Laws Act 317, § 1 at 755-56.)             (Emphasis

added.)

            According to Respondent, under HRS § 571-84.6(b) and

(c), the transcripts of Dr. Camara’s testimony, as legal records,

and Petitioner’s juvenile proceedings, respectively, were

accessible to the “public,” which, in turn, is defined as “‘open

or available for all to use, share, or enjoy.’”           (Citing State v.

Hussein, 122 Hawai#i 495, 522, 229 P.3d 313, 340 (2010).)

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Respondent asserts that, therefore, the evidence was also

available for use against Petitioner in the instant case.

Furthermore, Respondent urges that allowing the admission of

“‘transcripts of testimony taken by the court’” “would promote

the legislature’s express intent ‘to eliminate the

confidentiality of certain records and proceedings of juvenile

law violators’” and “‘send a message . . . that their actions

will be treated seriously.’”       (Quoting 1997 Haw. Sess. Laws Act

317, § 1 at 755-56.)     Finally, Respondent avers that since the

evidence sought to be admitted would be available for use in a

sentencing hearing, (citing Hussein, 122 Hawai#i at 529, 229 P.3d

at 347), it should likewise be available for use at trial.

                                    VI.

           Although HRS § 571-84(h) was not raised by the parties,

or noticed by the court or the ICA, we take judicial notice of

the statute.   See Life of the Land, Inc. v. City Council of City

& County of Honolulu, 61 Haw. 390, 419, 606 P.2d 866, 885 (1980).

In Life of the Land, this court found several ordinances relevant

to the appeal, although such ordinances were not in the appellate

record.   See id.   This court concluded that “[t]he trial court

. . . could have taken judicial notice of those ordinances, and

their contents[.]”    Id.   It was explained that, “[a]uthorities

are in conflict [on] whether an appellate court may take judicial

notice of municipal ordinances, not in the appeal record, which


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the trial court could have judicially noticed.”           Id.   Life of the

Land determined, however, that “the authorities which permit

appellate courts to take judicial notice of such ordinances are

more consonant with reason” and therefore, took judicial notice

of those ordinances.     Id. at 419-20, 606 P.2d at 885.

          In the instant case, the court “could have taken

judicial notice of the [statute,]” id. at 419, 606 P.2d at 885,

under HRE Rule 202(b) (Supp. 2008), which provides in relevant

part that “[t]he court shall take judicial notice of “the

constitutions and statutes of . . . every state.”           See also State

v. West, 95 Hawai#i 22, 26-27, 18 P.3d 884, 888-89 (2001).            In

West, this court noted that “[m]ost states with statutes

mandating courts to take judicial notice of municipal ordinances

require counsel to explicitly ask that the trial court take

judicial notice of the particular municipal ordinance.”            Id. at

27 n.10, 18 P.3d at 889 n.10.       However, this court “interpret[ed]

the mandatory language of [HRE Rule 202(b)] differently than

other states have,” holding that the courts of this state “are

duty-bound to take ‘judicial notice’ of municipal ordinances[,]”

“just as they do of state statutes.”        Id. at 26, 18 P.3d at 888.

          According to this court, “‘[a]lthough the law varies

from jurisdiction to jurisdiction as to what laws are subject to

judicial notice, . . . it is universally accepted that a court

must judicially notice the public law of its own jurisdiction.’”


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Id. at 27, 18 P.3d at 889 (quoting Jones on Evidence at § 2:2

n.2) (brackets and ellipsis in original).          It was thus concluded

that “state circuit and district courts must treat ordinances

like state statutes, specifically, as not required to be admitted

in evidence or to be expressly requested by counsel.”             Id.

(emphasis added).23

            It would seem apparent from the foregoing that state

statutes need not be admitted into evidence or brought to the

attention of the court by the parties in order to be noticed by

the court.24   West reasoned, “‘It is axiomatic that a court must

‘know’ the law within its jurisdiction; hence a court is required

to ‘notice’ applicable law and to instruct the jury thereon[.]’”

Id. at 26-27, 18 P.3d at 888-89 (quoting Clifford S. Fishman &

Anne T. McKenna, Jones on Evidence § 2:2 (7th ed. 1992))

(emphasis added).     We conclude HRS § 571-84(h) is the “applicable

law” in this case.      Id.

                                    VII.

            The plain language of HRS § 571-84(h) provides that

where a minor is adjudicated in a juvenile proceeding under HRS §

571-11(1) or (2), any evidence given therein is prohibited from


      23
            It is observed that HRE Rule 202(b) was not in effect at the time
Life of the Land, discussed supra, was decided.

      24
            As the dissent points out, the issue of whether Respondent would
be able to admit Dr. Camara’s testimony was highly contested between the
parties. See dissenting opinion at 6-8. Those several discussions should
have called HRS § 571-84 to the attention of the court.

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use against the minor in subsequent proceedings, for any purpose

whatsoever, unless the proceeding is a subsequent juvenile

proceeding under HRS § 571-11(1).        Dr. Camara’s testimony

constituted “evidence given in [Petitioner’s juvenile]

proceedings[.]”    HRS § 571-84(h).      The prosecution in the instant

case sought to admit that evidence “against [Petitioner], the

minor therein involved.”      Moreover, the admission of such

evidence to impeach Petitioner in the event he testified that he

did not know a single punch could cause the death of a person

would be admission of the evidence for “any purpose whatever.”

Further, the proceedings herein constituted subsequent

proceedings against Petitioner that were not juvenile proceedings

under HRS § 571-11(1), but adult criminal proceedings.            Id.

Pursuant to the clear mandate of HRS § 571-84(h), Dr. Camara’s

testimony was inadmissible against Petitioner.

          The prohibition against the use of Dr. Camara’s

testimony in this case is also confirmed by Nobriga.            In that

case, this court reviewed whether a trial judge could consider,

at the sentencing stage, a presentence investigation report (PSI)

that included the adult-defendant’s juvenile court record, in

light of HRS § 571-84.     56 Haw. at 75, 527 P.2d at 1270.         It was

explained that the provisions of the Family Court Act, which

include HRS §§ 571-1 and 571-84, “were designed to afford certain

protections to the juvenile involved in an adversary proceeding


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in any court[.]”    Id. at 77, 527 P.2d at 1270.        On the other

hand, “HRS 706-602 (Supp. 1973) is designed to assist the

sentencing authority by requiring that certain basic information

be made available in the form of a [PSI] which is made mandatory

in certain instances.”     Id. at 77, 527 P.2d at 1271.

           According to Nobriga, a “clear distinction exists

between the adversary proceeding in court and the sentencing

process.   During the latter, the presiding judge is no longer

dealing with the process of determining . . . the guilt or

innocence of the defendant, but rather must concern himself with

imposing a fair, proper and just sentence.”          Id. (internal

quotation marks and citation omitted) (emphasis added).            Nobriga

directed that the purpose of HRS § 571-84 is to “prohibit the use

of evidence against the child or minor involved in an adversary

proceeding in any court other than Family Court”; it is “not one

of a blanket prohibition banning the use of juvenile records in a

nonadversary proceeding, that is, at the sentencing stage.”                Id.

at 78-79, 527 P.2d at 1271-72 (emphasis added).           Thus, Nobriga

held that the inclusion of a defendant’s juvenile court record in

the defendant’s PSI does not violate HRS § 571-84.           Id. at 81,

527 P.2d at 1273.

           In Riveira II, this court examined whether a

defendant’s prior juvenile adjudication constituted a conviction

for purposes of applying the repeat offender sentencing provision


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to the offense of driving without no-fault insurance.              92 Hawai#i

at 522, 993 P.2d at 556.       This court held that HRS § 571-1

“mandates against treating juvenile adjudications as

convictions[,]” stating that “[t]he reasoning underlying our

holding is addressed succinctly by [the] dissent” in Riveira I.

Id. (emphasis added).25

            In Riveira I, the dissent reasoned that a juvenile

adjudication could not be treated as a prior criminal conviction

because, among other things, HRS § 571-1 directs, “without

qualification,” “that ‘no adjudication by the [family] court of

the status of any child under th[is] chapter [571] shall be

deemed a conviction.’”      92 Hawai#i at 559, 993 P.2d at 593

(Acoba, J., dissenting) (brackets in original).            In addition,

“HRS § 571-1 instructs that any evidence used in law violation



      25
            To reiterate, HRS § 571-1 provides in relevant part:

                  Construction and purpose of chapter. . . .
                  This chapter creates within this State a system of
            family courts and it shall be a policy and purpose of said
            courts to promote the reconciliation of distressed juveniles
            with their families, foster the rehabilitation of juveniles
            in difficulty, render appropriate punishment to offenders,
            and reduce juvenile delinquency. The court shall conduct
            all proceedings to the end that no adjudication by the court
            of the status of any child under this chapter shall be
            deemed a conviction[.] . . . Any evidence given in any case
            under section 571-11 shall not in any civil, criminal, or
            other cause in any court be lawful or proper evidence
            against the child for any purpose whatever except in
            subsequent cases involving the same child under section
            571-11.

(Emphases added.)




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proceedings ‘shall not in any . . . criminal . . . cause in any

event be lawful or proper evidence against the child for any

purpose whatever [] except in subsequent cases involving the same

child under section 571-11.’”        Id. (ellipses in original).

According to the Riveira I dissent, “The plain import of this

provision is that any evidence of no-fault insurance violations

may only be used in subsequent family court proceedings” and

“cannot be offered as evidence ‘for any purpose whatever []’ in

any court.”    Id.   Riveira II, having adopted the reasoning of the

Riveira I dissent, also confirms that, while evidence presented

in juvenile proceedings may be used as evidence in subsequent

juvenile proceedings against the minor, it cannot be offered as

evidence for any purpose whatsoever in any other court.26

            In the trial herein, Respondent sought to introduce

evidence given in Petitioner’s juvenile proceedings.


      26
            The dissent suggests that Riveira I’s bar against the use of
juvenile evidence is not dispositive because Riveira II “‘summarily adopted
the Riveira I dissent[,]’” and Riveira II did not involve the question of
whether evidence from prior juvenile adjudications is admissible in a
subsequent adult criminal trial. Dissenting opinion at 32 n.15. However,
this court overturned the Riveira I majority and “summarily” adopted the
Riveira I dissent because “[t]he reasoning underlying our holding is addressed
succinctly by [the] dissent.” Id. at 523, 993 P.2d at 556; see also id. at
524, 993 P.2d at 558 (“The dissent addresses these concerns succinctly and
clearly.”) Second, contrary to the dissent, in the instant case, part of the
rationale underlying the Riveira I dissent was that the juvenile system was
intended to “promote the reconciliation of distressed juveniles with their
families, foster the rehabilitation of juveniles in difficulty, render
appropriate punishment to offenders, and reduce juvenile delinquency[,]” as
evidenced in part by the mandate in HRS § 571-11 that evidence given juvenile
proceedings “shall not in any civil, criminal, or other cause in any court be
lawful or proper evidence against the child for any purpose whatever except in
subsequent cases involving the same child under section 571-11.” That
rationale was adopted by this court in Riveira II, and thus affirms that
Petitioner’s juvenile evidence is inadmissible in the instant proceedings.

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Respectfully, here, the court should have been alerted to the

applicability of HRS § 571-84(h) inasmuch as Petitioner’s

insistence that the evidence was inadmissible bore directly on

the long standing statutory bar to such evidence.            Under the

circumstances, HRS § 571-84(h) was directly and obviously

applicable and plainly controlling.27        As a result, in this case,

we take judicial notice of HRS § 571-84(h).           Applying it, we

conclude that in light of HRS § 571-84(h), the court erred in

ruling that if Petitioner testified on cross-examination that he

did not know a single punch could cause the death of a person,

Respondent could introduce evidence from Petitioner’s juvenile

proceedings.    Alternatively, we also conclude that the court’s

failure to apply HRS § 571-84(h) was plain error.28


      27
            The dissent refers to the foregoing language as a “test” for when
trial courts or appellate courts must take judicial notice of a statute.
Dissenting opinion at 13. The dissent states this “test” has no basis in our
rules of penal procedure, evidence, appellate procedure, or HRE Rule 202(a).
See id. However, the particular facts of this case give rise to the
conclusion that HRS § 571-84 was directly and obviously applicable and plainly
controlling. Whether this formulation is germane in any particular case would
depend on the circumstances. The facts and circumstances of this case
indicate we should take judicial notice of HRS § 571-84(h).

      28
            This court has the power to take notice of “[p]lain errors or
defects affecting substantial rights . . . although they were not brought to
the attention of the court.” Hawai#i Rules of Penal Procedure (HRPP) Rule
52(b) (2011). Here, the trial court plainly erred in ruling that evidence
from Petitioner’s juvenile proceedings would be admissible against Petitioner
where the admission of such evidence was prohibited by statute. See State v.
Domingo, 69 Haw. 68, 70, 733 P.2d 690, 692 (1987) (stating that where “the
introduction of the evidence in question [is] prohibited by statute, it
constitute[s] plain error and is noticeable by this court”).
            It is well-established that a court’s error can be noticed for
plain error. see State v. Stenger, 122 Hawai#i 271, 282, 226 P.3d 441, 452
(2010) (noting that “the court’s failure to instruct” was reviewed under the
plain error standard of review, which, in the case of erroneous jury
instructions, is merged with the harmless beyond a reasonable doubt standard);
                                                                (continued...)

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                                    VIII.

            Respondent is incorrect that HRS § 571-84.6(b) and

(c),29 as opposed to HRS § 571-84(h), govern the admissibility of

evidence from juvenile proceedings in subsequent proceedings

involving the minor.

                                     A.

            As recounted, Respondent maintains that HRS § 571-84(a)

and HRS § 571-84(h) must be construed with reference to each

other because both HRS § 571-84(a) and (h) deal with transcripts

       28
         (...continued)
State v. Vellina, 106 Hawai#i 441, 450, 106 P.3d 364, 373 (2005) (noting that
plain error arose when circuit court’s sentence to consecutive terms was based
on the exclusive reliance of unproven assertions by the prosecutor that the
defendant sold guns to a “drug dealer”); State v. Aganon, 97 Hawai#i 299, 304,
36 P.3d 1269, 1274 (2001) (noting that the “court’s [error in] jury
instructions were plainly erroneous”); State v. Fagaragan, 115 Hawai#i 364,
368, 167 P.3d 739, 743 (App. 2007) (“We first consider whether the circuit
court [plainly] erred by entering judgment and sentencing [the defendant] on
both Counts One and Two.”)
              Because the court’s error also infringed on Petitioner’s
substantial right to testify, as elucidated herein, it may be noticed for
plain error. See State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915
(1999) (“Because the circuit court’s error infringed upon [the defendant’s]
constitutional right to testify, we address it as plain error.”); see also
State v. Wakisaka, 102 Hawai#i 504, 515, 516, 78 P.3d 317, 328, 329 (2003)
(stating that “the prosecution cannot comment on the defendant’s failure to
testify because this infringes on the defendant’s right not to be a witness
against her-or himself” and “the prosecution[’s] improper[] comment[] on [the
defendant]’s failure to testify” “constitutes plain error which affected
[defendant]’s substantial rights”). This court “will apply the plain error
standard of review to correct errors which seriously affect the fairness,
integrity, or public reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights.” Nichols, 111
Hawai#i at 334, 141 P.3d at 981. Therefore, plain error review applies in
this case.

      29
            Respondent contends that HRS § 571-84.6(b) and (c) suggest the
transcripts from Petitioner’s juvenile proceedings were admissible against him
in this case. While Respondent notes that records from juvenile proceedings,
that would include transcripts, are open to the public under HRS § 571-84(b),
Respondent does not articulate how the fact that juvenile proceedings are open
to the public under HRS § 571-84.6 would have any bearing on the admissibility
of the transcript of Dr. Camara’s testimony. Thus, our analysis focuses on
whether HRS § 571-84.6(b) is applicable in the instant case.

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of testimony given in juvenile proceedings.          (Citing HRS § 1-16).

According to Respondent, since HRS § 571-84(a) is subject to HRS

§ 571-84.6, HRS § 571-84(h) should likewise be subject to HRS §

571-84.6.    Respondent invokes HRS § 1-16, which provides that

“[l]aws in pari materia, or upon the same subject matter, shall

be construed with reference to each other,” and “[w]hat is clear

in one statute may be called in aid to explain what is doubtful

in another.”    (Emphases added.)

            However, HRS § 571-84(a) and (h) do not deal with “the

same subject matter.”     HRS § 1-16.     HRS § 571-84(a) specifically

provides that “records,” including “transcripts of testimony

taken by the court[,]” “shall be withheld from public

inspection.” (Emphasis added.)       On the other hand, HRS § 571-

84(h) provides that “[e]vidence given in juvenile proceedings”

“shall not in any . . . criminal . . . cause be lawful or proper

evidence against the minor therein involved.”          It is apparent

that HRS § 571-84(a) deals with public inspection of records,

while HRS § 571-84(h) governs the use of evidence given in a

minor’s juvenile case against such minor in subsequent

proceedings.    Accordingly, these two sections do not deal with

the same subject matter and should not be construed with

reference to each other.

            Assuming arguendo, the two sections could be said to

deal with the same subject matter, inasmuch as “records” in


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juvenile cases, HRS § 571-84(a), and “evidence given in juvenile

proceedings,” HRS § 571-84(h), both could encompass transcripts

of testimony, HRS § 1-16 relates to the use of one statute to

“explain what is doubtful in another.”         But, “‘where the

statutory language is plain and unambiguous, our sole duty is to

give effect to its plain and obvious meaning.’”           State v. Kalama,

94 Hawai#i 60, 64, 8 P.3d 1224, 1228 (2000) (quoting Citizens for

Protection of N. Kohala Coastline v. County of Hawai#i, 91 Hawai#i

94, 107, 979 P.2d 1120, 1133 (1999)).        HRS § 571-84(h) is not

ambiguous and manifestly directs that evidence in Petitioner’s

juvenile proceedings was inadmissible in his trial herein, for

any purpose whatsoever, impeachment or otherwise.           Thus, there is

nothing doubtful in HRS § 571-84(h) that would require resort to

HRS § 571-84(a).

                                    B.

          In addition, it is evident from the face of HRS § 571-

84, that while the legislature made HRS § 571-84(a) subject to

HRS § 571-84.6, the legislature did not subject HRS § 571-84(h)

to the provisions of HRS § 571-84.6.        HRS § 571-84(a) expressly

provides that, “[e]xcept as provided in section 571-84.6,”

“transcripts of testimony taken by the court” in juvenile

proceedings, “shall be withheld from public inspection[.]”

Contrastingly, HRS § 571-84(h), which makes no mention of HRS

§ 571-84.6, is not qualified by an exception clause.            It is


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logical that HRS § 571-84(a) would be subject to HRS § 571-84.6,

and HRS § 571-84(h) would not.       HRS § 571-84(a) prohibits public

inspection of records of juvenile proceedings, while HRS

§ 571-84.6(b) contains an exception to the prohibition in HRS

§ 571-84(a), by allowing public access to such records in certain

prescribed instances.     On the other hand, none of the subsections

of HRS § 571-84.6 contain any exception to the prohibition in HRS

§ 571-84(h) that have to do with the inadmissibility of juvenile

case evidence in subsequent proceedings.

                                    C.

           Nor is it conceivable that, although HRS § 571-84(h) is

not subject to HRS § 571-84.6, the phrase “[n]otwithstanding any

other law to the contrary” in HRS § 571-84.6(b) indicates that

its provisions are to apply even when a conflicting statute does

not specifically make an exception for HRS § 571-84.6.             The term

“contrary” denotes a “conflict.”         See Merriam Webster’s

Collegiate Dictionary 765 (10th ed. 1989) (defining “contrary,”

inter alia, as “being opposite to or in conflict with each

other”).   “[T]wo statutes conflict” where “[i]t is not possible

to give effect to both[.]”      State v. Richie, 88 Hawai#i 19, 35,

960 P.2d 1227, 1243 (1998).      It is possible, however, to give

effect to both HRS § 571-84.6 and HRS § 571-84(h).           The

transcripts of testimony given in Petitioner’s prior juvenile

proceedings could be open to the public for inspection, while at


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the same time, evidence given in such proceedings would be

precluded from use in subsequent adversarial proceedings.

Accordingly, HRS § 571-84(h) is not a “law to the contrary” of

HRS § 571-84.6, and, thus, HRS § 571-84.6 is inapplicable here.

                                     D.

            As observed, Respondent also maintains that the

admission of the subject evidence would promote the legislature’s

objective of eliminating confidentiality of certain juvenile

records and of sending a message.30        Initially, the legislative

history that Respondent quotes does not apply here inasmuch as it

governs public inspection of juvenile records, not the

admissibility of evidence given in juvenile proceedings.             Thus,

such legislative history is irrelevant.

            Moreover, contrary to Respondent’s position, the

legislature did not “announce its departure from the previous

‘rehabilitative approach to juvenile justice’” in favor of “a new

legislative policy to protect the public.”          In enacting HRS §

571-84.6, the legislature explained that “the juvenile system in

Hawai#i and other states was originally designed to shield

children from publicity, out of concern for the welfare of the

child” and “‘protect the young person from the stigma of his



      30
            As indicated before, we conclude that HRS § 571-84(h) is plain and
unambiguous. We address the legislative history of HRS § 571-84.6 only insofar
as Respondent argues that the legislative history indicates such evidence
would be admissible.

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misconduct and is rooted in the principle that a court concerned

with juvenile affairs serves as a rehabilitative and protective

agency of the state.’”      1997 Haw. Sess. Laws Act 317, § 1 at 756

(citing Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105 (1979)

(emphasis added).

            As opposed to Respondent’s assertions, the legislature

confirmed the rehabilitative objective of juvenile proceedings,

stating that, “[w]hile continuing to support the rehabilitative

approach to juvenile justice,” the legislature believed that

“public safety and waning public confidence in the juvenile

justice system necessitate the development of a legislative

policy which balances these concerns with the principles of

protection and rehabilitation.”        Id. (emphases added).       The

legislature attempted to strike this balance by “eliminat[ing]

the confidentiality of certain records and proceedings of

juvenile law violators[,]” and did not express any intent to

allow for the admissibility of evidence from juvenile proceedings

in subsequent adversarial proceedings.          Id.   (emphases added).

Thus, the foregoing legislative history does not support the

admission of evidence from Petitioner’s juvenile proceedings in

this case.31

      31
            Finally, Respondent’s reliance on Hussein is misplaced. In
Hussein, this court considered the Commentary on HRS § 706-604(2), that
requires the court to furnish a copy of the PSI to the defendant and the
attorneys because “‘[t]he question of whether the defendant should be
sentenced to imprisonment or to probation is no less significant than the
                                                                (continued...)

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                                     IX.

           Having determined that the court’s ruling that evidence

of Petitioner’s juvenile proceedings could be admissible violated

HRS § 571-84(h), we conclude the ruling constitutes reversible

error.   This court has explained that
           “[e]rror is not to be viewed in isolation and considered
           purely in the abstract. It must be examined in light of the
           entire proceedings and given the effect to which the whole
           record shows it to be entitled. In that context, the real
           question becomes whether there is a reasonable possibility
           that error might have contributed to conviction. ”

State v. Duncan, 101 Hawai#i 269, 278, 67 P.3d 768, 777 (2003)

(quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308

(1981)).

                                     A.

           As related, defense counsel noted on the record that

the court’s ruling was a reason Respondent decided not to

testify.   In this way, the court’s error infringed upon

Petitioner’s constitutionally and statutorily protected right to

testify.   Tachibana v. State, 79 Hawai#i 226, 231, 900 P.2d 1293,




      31
        (...continued)
question of guilt[.]’” 122 Hawai#i at 529, 229 P.3d at 347 (quoting
Commentary on HRS § 706-604(2)) (brackets in original). According to
Respondent, because juvenile records may be included in a PSI for purposes of
sentencing, they should likewise be admissible against the defendant during
the “guilt” phase. However, the Commentary cited in Hussein concerned the
defendant’s right to controvert the contents of the PSI. While the sentencing
phase may be no less significant to a defendant inasmuch as both phases
involve the defendant’s liberty, the same rationale does not support a right
of the prosecution to use evidence against a defendant, where such use is
plainly prohibited by statute.


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1298 (1995)32 (quoting State v. Silva, 78 Hawai#i 115, 122-23, 890

P.2d 702, 709-10 (App. 1995)).        Error that infringes on one’s

constitutionally protected right cannot be said to be harmless

beyond a reasonable doubt.        State v. Cuevas, 53 Haw. 110, 115,

488 P.2d 322, 325 (1971) (concluding that “error is neither

unimportant nor insignificant” where “it infringes upon a basic

right of the accused”; “[in such instances, the error] raises a

reasonable possibility that it might have contributed to the

conviction” such that it “cannot [be said] that it was harmless

beyond a reasonable doubt”); see also State v. Amorin, 61 Haw.


      32
            The Tachibana court explained that a defendant’s right to testify
is guaranteed by the constitutions and statute.

                  The right to testify in one’s own behalf arises
            independently from three separate amendments to the United
            States Constitution. It is one of the rights guaranteed by
            the due process clause of the fourteenth amendment as
            essential to due process of law in a fair adversary process.
            . . .
                  The right to testify is also guaranteed to state
            defendants by the compulsory process clause of the sixth
            amendment as applied through the fourteenth amendment. . . .
                  Lastly, the opportunity to testify is also a necessary
            corollary to the Fifth Amendment's guarantee against
            compelled testimony, since every criminal defendant is
            privileged to testify in his [or her] own defense, or to
            refuse to do so.
                  Because the texts of sections 5, 14, and 10 of article
            I of the Hawai#i Constitution parallel the fourteenth,
            fifth, and sixth amendments to the United States
            Constitution, . . . the right to testify is also guaranteed
            by these parallel provisions of the Hawai#i Constitution.
            . . .
                  There is also a statutory protection for the right to
            testify. HRS § 801-2 (1985) states:

                  In the trial of any person on the charge of any
                  offense, he or she shall have a right . . . to be
                  heard in his or her defense.

79 Hawai#i at 231-32, 900 P.2d at 1298-99 (quoting Silva, 78 Hawai#i at 122-23,
890 P.2d at 709-10 (ellipses in original) (brackets omitted).

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356, 362, 604 P.2d 45, 50 (1979) (concluding that because “trial

court’s error in admitting the defendant’s illegally obtained

confession infringed upon the defendant’s constitutional right,”

“the error raised the reasonable possibility of having

contributed to the conviction below” such that it “cannot [be]

sa[id] that it was harmless beyond a reasonable doubt”); State v.

Mitchell, 88 Hawai#i 216, 227-28, 965 P.2d 149, 160-61 (App.

1998) (concluding that the error that “violated [the defendant’s]

due process rights” “was not harmless beyond a reasonable doubt”

because “[a]n accused’s right to due process is of overriding

importance”).

          The relevant question under the harmless beyond a

reasonable doubt standard is “‘whether there is a reasonable

possibility that error might have contributed to conviction.’”

Duncan, 101 Hawai#i at 278, 67 P.3d at 777 (quoting Heard, 64

Haw. at 194, 638 P.2d at 308) (emphases added).           Here, the

admission of Dr. Camara’s testimony was highly contested at trial

and the court’s erroneous ruling affected Petitioner’s decision

not to testify.    Consequently, there is a “reasonable

possibility” that the court’s error “might have” contributed to

his conviction.

                                    B.

          The court’s ruling was a factor in precluding testimony




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from Petitioner negating the requisite reckless state of mind.33

As related, Petitioner indicated that he would testify he was

unaware a single punch could cause the death of a person.

However, the court ruled that if Respondent laid a foundation as

recounted, supra, and Petitioner testified as indicated, the

court would be inclined to allow Respondent latitude in admitting

the evidence from the juvenile proceeding.          An assertion by

Petitioner that he did not know his one punch carried with it a

substantial risk of death was evidence that could have negated

the requisite state of mind.        Cf. State v. Pacheco, 96 Hawai#i

83, 97, 26 P.3d 572, 586 (2001) (stating that, “had the jury

believed Pacheco’s testimony, it may well have harbored a

reasonable doubt as to whether Pacheco had possessed the state of

mind requisite to committing the offense of second degree

escape”).    Such testimony would have been corroborated, at least

to some extent, by the medical examiner’s testimony that the

injury that caused decedent’s death was “not very common” and

“unique.”    However, the court’s announced decision to allow

evidence from the juvenile proceeding impeded Petitioner’s

proffer of evidence regarding his state of mind.            Hence, it is

reasonably possible that the court’s error might have contributed

to Petitioner’s conviction inasmuch as the error was a

      33
            Respondent was required to prove, as an element of the offense,
the requisite state of mind, i.e., that Petitioner knew there was a
substantial and unjustifiable risk that his conduct could cause the death of
another person and that Petitioner consciously disregarded that risk.

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consideration in his decision not to testify, and, thus, was not

harmless beyond a reasonable doubt.

                                     C.

            Such an error also affected Petitioner’s claim of

self-defense.     See Domingo, 69 Haw. at 70, 733 P.2d at 692

(holding that the trial court’s admission of a physician’s

testimony to impeach the defendant’s testimony that decedent had

“c[o]me at him with a sharp object[,]” where such admission was

statutorily prohibited, “[could not] be said to be harmless

beyond a reasonable doubt[,]” “[g]iven the assertion of

self-defense and the fact that the jury might have returned a

verdict of manslaughter, rather than murder”).           “[T]he use of

force upon or toward another person is justifiable when the actor

believes[34] that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force

by the other person on the present occasion.”           HRS § 703-304(1)

(1993) (emphasis added).       “The facts of consequence to the

determination of self-defense . . . all concern the actor’s state

of mind:    (1) whether the actor reasonably believed that [] force

was necessary; and (2) whether the actor reasonably believed that

he or she was threatened with one of the specified harms[.]”


      34
            HRS § 703-300(1) (1993), which defines “believes,” states that
“‘[b]elieves’ means reasonably believes[,]” and applies the “reasonable man
standard with respect to justification for the use of force in self
protection, in the protection of property, and in the protection of others.”
Commentary on HRS § 703-300 (quotation marks omitted).

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State v. Kupihea, 80 Hawai#i 307, 316, 909 P.2d 1122, 1131 (1996)

(emphases added).

          Consequently, “the critical factor in determining

whether an actor’s conduct is justified is the actor’s state of

mind or belief respecting facts and circumstances.”           Supplemental

Commentary on HRS § 703-300 (1993); see also State v. Augustin,

101 Hawai#i 127, 128, 63 P.3d 1097, 1098 (2002) (stating that the

reasonableness as to a defendant’s use of force “‘is determined

from the point of view of a reasonable person in the

[d]efendant’s position under the circumstances as he believed

them to be”; in other words, the jury “must consider the

circumstances as the [d]efendant subjectively believed them to be

at the time he tried to defend himself”) (quoting State v.

Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990)) (brackets in

original).

          Petitioner was the only person who could testify as to

his subjective belief of the facts and circumstances surrounding

his use of force.    The crux of his defense would be testimony

regarding his belief that force was necessary and that decedent

had in fact threatened him with harm.        Petitioner’s defense would

have been corroborated by Reverio’s testimony.          Again, it is

reasonably possible that the court’s error might have contributed

to Petitioner’s conviction inasmuch the court’s ruling as to the

juvenile proceedings was a factor in his decision not to testify.


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Thus, the error cannot be said to be harmless beyond a reasonable

doubt.

                                     X.

            We next consider Petitioner’s third question, whether

the DPA engaged in misconduct during closing argument by advising

the jury that the instructions were “mumbo jumbo,” that the jury

instructions could be disregarded,35 and that the jurors could

decide the question of guilt based on their “gut feeling[.]”

Respondent argues that the court’s instruction that the jury was

not bound by the closing arguments would ensure the jury would

base its decision on the evidence and law;36 that the DPA made

these statements in discussing reasonable doubt and reiterated

that the jurors were to “‘apply common sense, the law[,] and the

facts’ when determining whether the evidence proved Petitioner’s

guilt beyond a reasonable doubt”; and that the court “took the



      35
            Petitioner did not challenge this specific statement in his
opening brief to the ICA. This statement was first noticed by the ICA.      See
Schnabel, 2010 WL 4546655, at *4.

      36
            In its Response, Respondent points to the following instruction:

                  Statements or remarks made by counsel are not
            evidence. You should consider their arguments to you, but
            you are not bound by their recollections or interpretations
            of the evidence. . . .
                  . . . .
                  . . . . [W]e’re going to hear closing arguments as
            you’re well aware. You’ve heard the evidence. You have the
            law. It’s the attorneys’ views. Listen carefully but
            you’re not bound by their recollections of the evidence or
            the law. . . .

(Ellipses in original.)

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uncommon and additional prophylactic step of issuing [an]

admonition” to the jury that Respondent was required to prove

Petitioner’s guilt beyond a reasonable doubt “after [closing]

arguments[.]”     (Emphasis in original.)

            Respondent concedes that “in hindsight, the [DPA]

should have eschewed the inclusion of the obviously colloquial

expression ‘mumbo jumbo of all the words’ for a more conventional

phrase[,]” but argues that, “[c]onsidering the context in which

the [DPA] made the statements, the immediate curative instruction

of the court, and the ‘strength of the evidence’ against

Petitioner,” the ICA did not gravely err “in concluding the

statements were ‘harmless beyond a reasonable doubt.’”             (Quoting

Schnabel, 2010 WL 4546655, at *4.)

                                     XI.

            Here, the DPA’s remarks during closing argument

constituted misconduct.37      The DPA stated, “And when you go in

the deliberation room, read the[ jury] instructions but . . .

[d]on’t get too caught up in the mumbo jumbo of all the words but

use your common sense.”       (Emphasis added.)     The term “mumbo

jumbo,” as used in the foregoing context, would mean

“unnecessarily involved and incomprehensible language:




      37
            Although Petitioner alleges that the DPA’s comments regarding
“mumbo jumbo” and “gut” were two separate instances of misconduct, they are
addressed together.

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gibberish[.]”   Merriam Webster’s Collegiate Dictionary at 765

(capitalization omitted).      Thus, the DPA essentially suggested to

the jury that the jury instructions were incomprehensible

gibberish, thereby denigrating statements of law on which the

jury had been or would be instructed.

          The DPA reinforced the “mumbo jumbo” reference by

telling the jury to “[p]ut aside those words [of the

instructions].”    By doing so, the DPA again reinforced the

proposition that the jurors could disregard the law embodied in

the instructions.    The DPA told the jurors more than once, and in

more than one way, to decide the case by “gut feeling,” imploring

each juror to “dig deep down inside and ask yourself,” “based on

your gut feeling[,] . . . Is he guilty?”         (Emphasis added.)         He

further misstated the law in telling the jurors that basing

Petitioner’s guilt on their “gut feeling” was equivalent to the

exercise of their “common sense.”

          The court instructed the jury that reasonable doubt “is

a doubt in your mind about the defendant’s guilt which arises

from the evidence presented or from the lack of evidence and

which is based upon reason and common sense.”          (Emphasis added.)

“Reason” is defined, among other things, as “the power of

comprehending, inferring or thinking esp[ecially] in [an] orderly

rational way[.]”    Id. at 974.     “Common sense” is defined in part




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as “[g]ood, sound, ordinary sense” or “good judgment[.]”

Webster’s Third New Int’l Dictionary 540 (1960).           In contrast, a

“gut feeling” is something “visceral” “arising from one’s inmost

self[.]”   Merriam Webster’s Collegiate Dictionary at 519.            Giving

way to a “gut feeling” is the antithesis of reason--thinking in

“an orderly and rational way,” and common sense--exercising sound

and prudent judgment, as extolled by the instruction.

Accordingly, Respondent was incorrect in equating a “feeling

inside” to common sense.

           Respectfully, the court also erred in accepting

Respondent’s argument that “gut feelings” could be equated with

common sense, and in ignoring the fact that common sense is to be

considered in tandem with “reason.”        The DPA’s statement, then,

improperly “invite[d] the jury to base its verdict on

considerations other than the evidence in the case,” unguided by

the law.   State v. Mars, 116 Hawai#i 125, 143, 170 P.3d 861, 879

(App. 2007).   In sum, the DPA’s remarks were plainly erroneous

and amounted to prosecutorial misconduct.         State v. Cardus, 86

Hawai#i 426, 433, 439, 949 P.2d 1047, 1054, 1060 (App. 1997)

(concluding that the prosecutor’s statement during rebuttal

argument “urg[ing] the jury to, in effect, ignore the jury

instructions and follow their ‘common sense’” “was improper” and

“constituted prosecutorial misconduct”).




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                                   XII.

            Having determined that the DPA’s statements amounted to

misconduct, we must decide whether such misconduct warrants

vacation.    “‘Allegations of prosecutorial misconduct are reviewed

under the harmless beyond a reasonable doubt standard,’” and do

not warrant vacation or reversal unless “‘there is a reasonable

possibility that the error complained of might have contributed

to the conviction.’”     State v. Mainaaupo, 117 Hawai#i 235, 247,

178 P.3d 1, 13 (2008) (quoting State v. Iuli, 101 Hawai#i 196,

204, 65 P.3d 143, 151 (2003)).       In deciding the foregoing

question, we must consider the following factors:           “‘(1) the

nature of the conduct; (2) the promptness of a curative

instruction; and (3) the strength or weakness of the evidence

against the defendant.’”      Id. at 252, 178 P.3d at 18 (2008)

(quoting State v. Hauge, 103 Hawai#i 38, 47, 79 P.3d 131, 140

(2003) (quoting Pacheco, 96 Hawai#i at 93, 26 P.3d at 582)).

                                    A.

            The nature of the prosecutor’s conduct was not

harmless.    As officers of the court, counsel are bound to respect

the law, as embodied in the instructions, not to impugn it.                The

DPA’s argument to the jurors encouraged disdain for the law.

Contending that the jurors could decide the case on their “gut

feelings” clashed with the instruction on reasonable doubt.                In




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essence, the DPA’s argument abrogated Respondent’s duty to prove

each element of the offense under the standards set forth in the

reasonable doubt instruction as is constitutionally and

statutorily required.38      See Murray, 116 Hawai#i at 10, 169 P.3d

at 962 (“The defendant’s right to have each element of an offense

proven beyond a reasonable doubt is a constitutionally and

statutorily protected right.”).        “[A]lthough this court has

previously allowed the prosecution wide latitude when making

closing remarks, . . . a prosecutor’s comments may not infringe

on a defendant’s constitutional rights.”          State v. Mattson, 122

Hawai#i 312, 325, 226 P.3d 482, 495 (2010).          Based on the

foregoing, the misconduct was not harmless as to the first

factor.

                                     B.

            As to the second factor, no curative instruction was

given in this case.      The overarching fact, with respect to the

impact of the court’s ruling on the jury, was that the defense’s

objection was overruled.       Pacheco, 96 Hawai#i at 96, 26 P.3d at

585 (“Regarding the second factor, the circuit court gave no

curative instructions to the jury.         Indeed, when the DPA first

characterized Pacheco as an ‘asshole’ during his



      38
            As noted in State v. Murray, 116 Hawai#i 3, 10 n.8, 169 P.3d 955,
962 n.8 (2007), HRS § 701-114 (1993) provides in relevant part that “no person
may be convicted of an offense unless” “[e]ach element of the offense” is
“proved beyond a reasonable doubt.” (Emphases omitted.)

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cross-examination of him, the circuit court overruled defense

counsel’s objection.”); see also State v. Meyer, 99 Hawai#i 168,

172, 53 P.3d 307, 311 (App. 2002) (stating that “no specific

curative instruction was given by the court in this case because

the court overruled defense counsel’s objection to the DPA’s

[statements]”); State v. McGriff, 76 Hawai#i 148, 160, 871 P.2d

782, 794 (1994) (“Generally, a prosecutor's improper remarks are

considered cured by the court’s instructions to the jury, because

it is presumed that the jury abided by the court's admonition to

disregard the statement.” (Internal quotation marks and citation

omitted).); Pemberton, 71 Haw. at 475, 796 P.2d at 84 (noting

that it is “presumed” that the jury will abide by a court’s

admonition to disregard an improper argument); State v. Melear,

63 Haw. 488, 497, 630 P.2d 619, 626-27 (1981) (noting that the

circuit court “instructed the jury to disregard the arguments of

the prosecutor[,]” which “removed any harm or prejudice . . .

caused by the prosecutor’s statements”); State v. Cavness, 46

Haw. 470, 473, 381 P.2d 685, 686-687 (1963) (“When the Court has

instructed that something which the[ jurors] have heard is not to

be considered by them, we must presume in favor of their oath and

public duty.” (Internal quotation marks and citations omitted).).

Consequently, “by overruling defense counsel’s objection, the []

court, at least tacitly, placed its imprimatur upon the DPA’s




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[improper remarks.]”39      Pacheco, 96 Hawai#i at 96, 26 P.3d at

585.40

            Unlike in Cardus, where the ICA concluded that similar

comments did not warrant a mistrial,41 the jurors here were never

      39
            From the dissent’s point of view, “overruling of the objection did
not convey approval” of the prosecutor’s improper remarks, or
“vitiate the effect of the court’s comments reminding the jury to follow the
instruction on reasonable doubt[,]” the court cured the improper remark by
referring to the jury instruction on reasonable doubt. Dissenting opinion at
42. But it is clear the court’s overruling of the defense’s objection
indicates that the improper prosecution argument was permissible. Further, by
stating that it would allow the argument and noting for the jury that the DPA
had “latitude” in making an argument, the court wrongly conveyed to the jury
that equating common sense in the court’s instruction with a “gut feeling” was
acceptable and could guide the jurors’ decision.

       40
             The dissent suggests that “all” of the foregoing cases are
distinguishable, but refers only to Pacheco and Meyer. See dissenting opinion
at 42-43. According to the dissent, all of the cases including Pacheco and
Meyer are distinguishable because in those cases, the trial court did not
refer the jury to an instruction that was “contrary to the argument being made
by the prosecutor.” Id. The dissent maintains it was the reasonable doubt
instruction that was “contrary” to the prosecutor’s argument and thus
curative. Id. at 43. But the court did not sustain the objection and tell
the jury to disregard the improper argument. See discussion supra; see State
v. Espiritu, 117 Hawai#i 127, 143, 176 P.3d 885, 901 (2008) (holding that
“[n]o curative instruction was given[,]” and the court’s instructions did not
“disabuse[]” the jury of the prosecutor’s improper remarks); Pacheco, 96
Hawai#i at 96, 26 P.3d at 585 (noting that “the circuit court gave no curative
instructions to the jury[]” insofar as it “overruled defense counsel’s
objection[,]” thereby “plac[ing] its imprimatur upon the [prosecutor’s
improper argument], risking the implication that it, too,” believed the
improper argument, and “invit[ed] the jury to share in that belief”); Rogan,
91 Hawai#i at 415, 984 P.2d at 1241 (noting that the failure to sustain the
defendant's objection and, consequently, the lack of curative instruction
weighed in favor of the conclusion that prosecutorial misconduct was not
harmless beyond a reasonable doubt); Meyer, 99 Hawai#i at 172-73, 53 P.3d at
311-12 (recognizing that there “was no specific curative instruction given by
the court in this case because the court overruled defense counsel's
objection”). Indeed, it confirmed the prosecution equating “gut feeling” with
common sense. Citing the standard jury instruction on reasonable doubt but
overruling the objection, as the court did in the instant case, does not
suggest to the jury that the prosecutor’s argument was “contrary” to the
instruction, but rather, that the objection was wrong, leaving in place the
prosecutor’s improper remarks.

      41
            In Cardus, 86 Hawai#i at 433, 949 P.2d at 1054, the prosecutor
“urged the jury to, in effect, ignore the jury instructions and follow their
‘common sense.’” Following an objection and bench conference, defense counsel
moved for a mistrial. Id. The trial court denied the defense’s motion for
                                                                 (continued...)

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instructed to reject the DPA’s entreaties.          In that connection,

the court’s instruction that “pity, passion and prejudice have no

play” in determining “reasonable doubt” was also insufficient to

cure the misconduct because the instruction did “not relate[] to

the prejudicial effects of the prosecutor’s assertions” or

“specifically address and correct the misstatements [] given.”42

Espiritu, 117 Hawai#i at 143-44, 176 P.3d at 901-02.43           Similarly,

although Respondent noted that the court instructed the jury that

statements or remarks made by counsel are not evidence, that

instruction was not a “curative instruction” because the court

overruled the objection and, moreover, “the specific

misstatements in question have to do with law and not evidence.”

Id. at 143, 176 P.3d at 901 (emphasis omitted); see also id.



      41
       (...continued)
mistrial but struck the statement and told the jury to disregard the argument.
Id. The trial court then instructed the jury as follows: “Ladies and
gentlemen, at this time I am going to ask you to please disregard the
prosecutor’s last statement. And ask you to please disregard the prosecutor
[sic] last statement.” Id. (brackets in original).

      42
            The dissent maintains that the court’s reference to the foregoing
jury instruction “nullified” the prosecutor’s “improper argument” that the
jury could ignore the law, and “sufficiently addressed” the “prejudicial
impact” of that argument. Dissenting opinion at 41. But the court sustained
the “gut feeling” remark as the prosecution’s “take on common sense.” And
inasmuch as the court did not overrule the prosecutor’s “improper argument,”
the court could not have “nullified” such argument.

      43
            The dissent maintains that, unlike in Espiritu, here the court
referred the jury to the reasonable doubt instruction in regard to the
prosecutor’s arguments. Dissenting opinion at 45. However, Espiritu
expressly stated that “[n]o curative instruction was given[,]” 117 Hawai#i at
143, 176 P.3d at 901 (emphasis added), because, as in the instant case, the
court did not “disabuse” the jury of the incorrect prosecutorial argument,
leaving the jury with the perception that the misstatement was not incorrect.
Id.

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(where the prosecutor misstated the law by implying that an

attempted manslaughter defense had additional elements not set

forth in the statute, holding that, “[a]lthough the court did

instruct the jury as to the elements of an attempted manslaughter

defense, . . . [t]he jury was not disabused of this error”

“[b]ecause [the defense’s] objections to these arguments were

overruled, [and] the jury would reasonably perceive that the

misstatement of the law was not incorrect”).           Here, the court’s

instruction simply did not address the DPA’s misstatements.44

            Lastly, because the court did not state its reasons for

twice instructing the jury on reasonable doubt, any suggestion by

Respondent that the second instruction was “prophylactic,” after

an apparent two-day break in the proceedings, is nothing more

than speculation.     The second general instruction on reasonable

doubt also did not specifically address the improper nature and

prejudicial effects of the comments.         Thus, “the second factor

. . . weighs heavily in favor of [Petitioner].”            Rogan, 91

Hawai#i at 415, 984 P.2d at 1241.


      44
            Relying on cases from outside this jurisdiction, the dissent
maintains that the test for the second prong should be whether “the entirety
of the court’s comments were sufficient to alleviate the prejudice caused by
the prosecutor’s improper remarks.” Dissenting opinion at 47-49 (citing
Rodriguez v. Peters, 63 F.3d 546, 559 (7th Cir. 1995); People v. Katzenberger,
101 Cal. Rptr. 122, 128 (Cal. Ct. App. 2009); Uvalle v. State, Nos. 05-98-
0466-CR, 05-98-0467-CR, 05-98-00468-CR, 199 WL 592397, at *6 (Tex. Ct. App.
Aug. 9, 1999) (not designated for publication); Morrison v. State, No. 05-94-
01649-CR, 1997 WL 282232, at *4 (Tex. Ct. App. May 29, 1997) (not designated
for publication)). With all due respect, the established and precedential
test in this jurisdiction for this prong is whether a curative instruction was
given, see cases cited supra, at 47-51, notwithstanding foreign decisions that
conflict with our precedent.

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                                     C.

            The third factor requires consideration of the strength

or weakness of the evidence against Petitioner.            Mainaaupo, 117

Hawai#i at 252, 178 P.3d at 18.        Although the medical examiner

testified that decedent died as a result of a “traumatic

subarachnoid hemorrhage” caused by an “assaultive blunt force

injury to the head[,]”45 physicians at the hospital who treated

decedent concluded that the he had died from an aneurysm.              The

medical examiner offered an explanation for the different

conclusions.    However, a question as to the “unique”46 injury

resulting in decedent’s death was raised in the evidence by the

medical examiner.     The medical examiner indicated that the injury

was “unique” because, “usually, if somebody falls, . . . [that

is] what’s called [a] subdural hemorrhage[,]” but decedent

“didn’t have any of that.”



      45
            According to the dissent, “the medical examiner’s testimony
provided strong support that Reuther’s injury was caused by a punch that he
did not anticipate.” Dissenting opinion at 51. But there is nothing in the
record indicating the medical examiner opined that decedent “did not
anticipate” a punch. Id. Instead, the examiner stated that when a person
expects to be hit, it is unlikely that the brain will suffer trauma, but even
if it is unexpected and a “blow is not really hard,” trauma can occur. The
medical examiner testified that a “traumatic subarachnoid hemorrhage” occurs
“mostly when [the impact is] unexpected[,]” but “anything is possible[,]” so
the medical examiner could not definitively state that the injury “can never
happen[]” when a victim does not expect a blow.

      46
            The dissent asserts that this opinion takes the medical examiner’s
testimony out of context by stating that there was disputed evidence as to
whether the punch caused death. Dissenting opinion at 51 n.27. However, the
issue is not whether decedent died from the punch, but whether Petitioner
acted recklessly in striking decedent; in that regard, testimony regarding the
“unique” injury, would be a consideration in whether Petitioner acted
recklessly.

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             In addition, as previously noted, while Respondent’s

witnesses who had invited decedent to camp with them and observed

the incident from a distance testified that Petitioner’s action

was unprovoked, there was contrary testimony.            Reverio, who was

standing next to Petitioner at the time of the incident,

testified that after a disagreement, Reverio thought Petitioner

and decedent “were going to fight” when Petitioner punched

decedent once.     Consequently, there was a dispute in the evidence

as to what had occurred and whether Petitioner acted in self-

defense.47    Thus, the evidence in this case was not so

overwhelming48 as to “outweigh” the effect of the misconduct and

      47
            The dissent focuses on the testimony of two witnesses, to the
exclusion of Reverio’s testimony. See dissenting opinion at 47. Reverio’s
testimony contradicted the testimony of Kaeo and Ako. Further, we do not
dispute the medical examiner’s testimony, see dissenting opinion at 50-51.
However, as stated, the hospital believed decedent’s cause of death was an
aneurysm.

       48
             As opposed to the dissent’s position that the evidence must be
only “very strong[,]” dissenting opinion at 46-47 (citing State v. Klinge, 92
Hawai#i 577, 593, 994 P.2d 509, 525 (2000), “overwhelming” evidence is the
precedential standard by which to assess the strength of the evidence against
a defendant. See Tuua, 125 Hawai#i at 17, 250 P.3d at 280 (“[T]he strength
of the evidence was not overwhelming and the credibility of the witnesses’
versions of events was the pivotal issue at trial.”); Mainaaupo, 117 Hawai#i
at 255, 178 P.3d at 21 (“[W]e think that the evidence in this case is not so
overwhelming that we are convinced that the DPA’s intrusion into [the
defendant’s] right to remain silent may not have contributed to his
conviction.”); see also Wakisaka, 102 Hawai#i at 516, 78 P.3d at 329 (“In
short, the evidence was not so overwhelming that we are convinced the
prosecution’s intrusion on [the defendant’s] rights under article I, section
10 of the Hawai#i Constitution may not have contributed to [the defendant’s]
conviction.”); Pacheco, 96 Hawai#i at 87, 26 P.3d at 586 (“[W]e cannot say
that the evidence against [the defendant] was so overwhelming as to render the
DPA's personal disparagements of him and vigorous and improper attack on his
credibility harmless beyond a reasonable doubt.”); Rogan, 91 Hawai#i at 415,
984 P.2d at 1241 (“[I]t can hardly be said that the case against [the
defendant], which hinged on the credibility of the Complainant, was so
overwhelming as to outweigh the inflammatory effect of the deputy prosecutor’s
comments.”); State v. Knight, 80 Hawai#i 318, 327, 909 P.2d 1133, 1142 (1996)
                                                                 (continued...)

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to render the DPA’s improper comments harmless beyond a

reasonable doubt, as previously noted.49          Shabazz, 98 Hawai#i at

382, 48 P.3d at 629; cf. Pacheco, 96 Hawai#i at 83, 26 P.3d at

586 (“[W]e cannot say that the evidence against [the defendant]

was so overwhelming as to render the DPA’s personal




      48
       (...continued)
(“In regard to the third factor, the strength or weakness of the evidence
against the defendant, the evidence against [the defendant], as described
above, is overwhelming.”); State v. Samuel, 74 Haw. 141, 149, 838 P.2d 1374,
1379 (1994) (“Furthermore, there was overwhelming evidence in the record to
support the . . . verdict beyond a reasonable doubt[.]”); State v. Shabazz,
98 Hawai#i 358, 382, 48 P.3d 605, 629 (App. 2002) (“Hence, like the supreme
court in Rogan, we cannot conclude that the case against [the defendants],
which hinged on the credibility of the Complainant, was so overwhelming as to
outweigh the inflammatory effect of the deputy prosecutor’s comments.”)
(Internal citation and quotation marks omitted); State v. Schmidt, 84 Hawai#i
191, 203, 932 P.2d 328, 340 (App. 1997) (“Thus, in light of the overwhelming
evidence of [the d]efendant’s guilt, we conclude that those of the
prosecutor’s comments which were improper were harmless beyond a reasonable
doubt.”). Klinge is distinguishable. Klinge focused on whether the
misconduct prejudicially affected the defendant’s substantial rights under
plain error review; it did not, as here, analyze whether the error was
harmless beyond a reasonable doubt such that vacation is warranted. Id. at
593, 994 P.2d at 525 (“[I]n light of the nature of the prosecutor's statement,
the failure of defense counsel to object, and the strength of the evidence
against [the defendant], we hold that any error . . . by the prosecutor did
not prejudicially affect Klinge’s substantial rights.”) (Emphasis added.).
Thus, contrary to the dissent’s position, Klinge cannot be relied upon for the
proposition that the evidence need not be overwhelming in ascertaining whether
the misconduct is harmless beyond a reasonable doubt.

      49
             The dissent maintains that this opinion “focuses” on the fact that
“some evidence” contradicting Respondent’s evidence was introduced, which,
according to the dissent, is a “departure from this court’s harmlessness
jurisprudence[]” insofar as the “question” is whether Respondent’s evidence is
“strong enough to overcome the potential effect of the misconduct.”
Dissenting opinion at 50 (citing State v. Valdivia, 95 Hawai#i 465, 484, 24
P.3d 661 680 (2001); Klinge, 92 Hawai#i at 593, 994 P.2d at 525; Rogan, 91
Hawai#i at 415, 984 P.2d at 1241). Again, the “question” is whether the
State’s evidence, here, Respondent’s, is “so overwhelming as to outweigh the
[prejudicial] effect of the [improper] comments[,]” such that the improper
comments “might [not] have contributed” to the defendant’s conviction, as
noted supra. Rogan, 91 Hawai#i at 415-16, 984 P.2d at 1241-42 (emphasis
added). Second, despite the dissent’s assertion that the majority opinion
“focuses” on evidence that contradicts Respondent’s evidence, this opinion
considers the entire record, in arriving at the conclusion that improper
remarks might have contributed to the conviction.

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disparagements of him and vigorous and improper attack on his

credibility harmless beyond a reasonable doubt.”)50

                                       D.

                The prosecutor’s remarks brought the jury instructions

into disrepute, and uncorrected, such remarks “seriously affect

the fairness, integrity, [and] . . .           public reputation of [the]

judicial proceedings,”        Nichols, 111 Hawai#i at 334, 141 P.3d at

981.        Hence, based on these three factors, “there is a reasonable

possibility[, then,] that [the DPA’s improper remarks] might have

contributed to [Petitioner’s] conviction,” Duncan, 101 Hawai#i at

278, 67 P.3d at 777, and the ICA gravely erred in concluding that


       50
            The dissent reaches the opposite conclusion by arguing the
evidence demonstrated that Petitioner was “reckless” and did not act in self
defense. Dissenting opinion at 47-48. According to the dissent, this
evidence consisted of two “independent” witnesses who stated that the attack
was unprovoked and unexpected and that Petitioner was under the influence of
methamphetamine, the medical examiner who testified that the injury resulted
from a punch that decedent did not anticipate, (this is rebutted supra), and
an “independent witness” who testified that Petitioner was larger than
decedent. Id. at 47.
            First, there is no “overwhelming evidence” of recklessness, for
the reasons previously stated. Additionally, the two witnesses who believed
Petitioner to be under the influence of methamphetamine, by their own
admission, were under the influence of drugs themselves. Harold Kaeo had
smoked marijuana and had a shot of alcohol, and Nicole Ako stated that she was
“high on crystal methamphetamine.” In any event, Petitioner’s physical size,
alleged drug use, and the testimony of two witnesses apparently under the
influence of drugs themselves, would not present “overwhelming and
compelling,” State v. Toyomura, 80 Hawai#i 8, 27, 904 P.2d 893, 912 (1995),
evidence of recklessness that could be concluded, outweighed the prejudice
engendered by the prosecutor’s comments in final argument. In light of other
evidence that the injury was “unique” and Reveiro’s testimony regarding self
defense that is part of the record, the improper comments cannot be deemed
harmless.
            Second, as to the dissent’s statement that the foregoing evidence
showed Petitioner did not act in self defense, aside from Reveiro’s testimony,
Petitioner’s “subjective[] belie[f,]” Augustin, 101 Hawai#i at 128, 63 P.3d at
1098, as to the circumstances regarding the use of force, would have had to be
considered by the jury. However, a reason Petitioner did not testify was the
court’s erroneous ruling on admission of the juvenile evidence.

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“the statements of the DPA were harmless beyond a reasonable

doubt[,]” Schnabel, 2010 WL 4546655, at *4.51

                                    XIII.

           In sum, the dissent maintains that judicial notice may

not be taken of HRS § 571-84(1); only plain error review is

permissible, plain error review should not be granted with

respect to the applicability of HRS § 571-84(1), and the

prosecutor’s remarks in final argument were harmless.

Specifically, the dissent asserts, (1) pursuant to HRE Rule 103,

Petitioner waived the argument that HRS § 571-84 precluded

admission of the juvenile evidence by failing to specifically

object on the ground that the admission of such evidence was

barred by HRS § 571-84, dissenting opinion at 3, 9-10; (2) HRE

202(b) does not allow this court to take notice of Petitioner’s

“potential objection,” id. at 3, 9; (3) the “argument” that HRS §

571-84 precluded admission of the evidence is not noticeable as

plain error, id. at 3, 26-31; (4) the court did not violate HRS §




     51
            The dissent asserts that as in State v. Sawyer, 88 Hawai#i 325,
329 n.6, 966 P.2d 637, 641 n.6 (1998), the court “‘effectively sustained’”
Petitioner’s objection to the improper remarks by reminding the jury that the
of the instructions on reasonable doubt and that “pity, passion and prejudice
have no play[.]’” Dissenting opinion at 47 n.25. In Sawyer, the prosecutor
told the jury during closing arguments not to “‘let the law try to cloud you
with all of these instructions when you look at it.’” Id. at 328, 966 P.2d at
640. Sawyer held that the court “effectively sustained and immediately cured
any error by stating that the ‘law has to be followed[.]’” In this case, the
court could not have “effectively sustained” Petitioner’s objection inasmuch
as it expressly overruled Petitioner’s objection. Also, a general reference
to an instruction on reasonable doubt did not specifically address the
denigration of the court’s instructions.

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571-84(h), id. at 32-38; and (5) the prosecutor’s closing

argument was improper, but was cured by the court’s instructions

to the jury, id. at 38-51.52

                                    XIV.

            The dissent’s first argument that Petitioner “waived”

any “argument” pertaining to HRS § 571-84(h) is incomplete.                 HRE

Rule 103(a)(1) provides that “[e]rror may not be predicated upon

a ruling which admits or excludes evidence unless a substantial

right of the party is affected, and[,]” “[i]n case the ruling is

one admitting evidence, a timely objection or motion to strike

appears of record, stating the specific ground of objection, if

the specific ground was not apparent from the context[.]”

(Emphasis added.)

            To reiterate, at trial, Petitioner sought to prevent

Respondent from admitting Dr. Camara’s testimony, arguing that

such evidence was not relevant, and that its probative value was

substantially outweighed by the risk of prejudice.            Consequently,

and plainly, Petitioner did not “waive” his objection to the

admissibility of the juvenile evidence.53         Seemingly, the



      52
            Because this argument was addressed in footnotes accompanying the
analysis of prosecutorial misconduct, see supra, it is not discussed further.

      53
            Assuming, arguendo, Petitioner “waived” any argument pertaining to
HRS § 571-84, the court’s error would be subject to plain error review. As
stated both supra and infra, the court’s error is noticeable for plain error
under the facts of this case. For the same reasons, “a substantial right of
[Petitioner was] affected” as a result of the court’s error, as required by
HRE Rule 103(a)(1).

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dissent’s disagreement with this opinion, at least with respect

to objections, comes down to its belief that Petitioner was not

precise enough in objecting to the admission, of Dr. Camara’s

testimony.    See dissenting opinion at 3, 9-10.         “Case law from

our state indicates . . . that the purpose of requiring a

specific objection is to inform the trial court of the error.”

State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595, 600 (2002).

However, Long explained that an appellate court will “consider a

meritorious objection not voiced to the trial judge” when “the

ground for exclusion should have been obvious to [the] judge and

opposing counsel[,]” 98 Hawai#i at 354, 48 P.3d at 601 (internal

quotation marks, citation, and emphasis omitted) (emphasis

added).   Although Petitioner did not specifically raise HRS §

571-84(h), its applicability should have been “apparent from the

context[,]” HRE Rule 103(a)(1) of Petitioner’s objection.54

Applying Long’s rationale, the ground for exclusion in HRS § 571-

84 should have been obvious.        Id.55


      54
            Also, this court has recently affirmed that general objections are
sufficient to preserve an error for appeal. Cf. State v. Walker, No. SCWC-
29659, -- P.3d --, 2012 WL 1139312, at *15 (Haw. Mar. 28, 2012) (noting that
as in Wheeler, 121 Hawai#i at 387, 219 P.3d at 1174, “in which the defendant
generally moved to dismiss on the ground that the charge failed to state an
offense without specifying which element of the offense was deficient[,]”
Walker’s general objection to the charge was sufficient to deem the charge to
have been objected to).

      55
            The dissent states that based on Petitioner’s objection in this
case, the applicability of HRS § 571-84 would not be “apparent or obvious” to
the court. Dissenting opinion at 10 n.5. To the contrary, the proposition
that juvenile evidence may not be used against the minor in subsequent
criminal proceedings has been well established in this jurisdiction. See HRS §
                                                                (continued...)

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                                     XV.

            The dissent’s second argument suggests that HRE Rule

202(b) does not allow this court to take judicial notice of HRS §

571-84.    According to the dissent, “the doctrine of judicial

notice does not provide an alternative basis for an appellate

court to address [the] issue” of whether the use of evidence from

Petitioner’s juvenile proceedings was barred by HRS § 571-84, or

“to address a potential objection to the admissibility of

evidence which was not raised below.”56         Dissenting opinion at 3;

see also dissenting opinion at 14-25.          With all due respect, the

dissent confuses the concepts of judicial notice and plain error.

Indisputably, judicial notice does not allow a court to take

notice of a “potential objection” or of error.57           Id.   Judicial

notice, however, does allow this court to take notice of a




      55
        (...continued)
571-84; see also Nobriga, 56 Haw. at 77, 527 P.2d at 1271; Riveira, 92 Hawai#i
521, 993 P.2d 555.

      56
            We apply the neutral principle that a court should take judicial
notice of a law that is directly and obviously applicable and plainly
controlling. It is error for the court not to do so, without regard to
whether the prosecution or defendant would benefit by judicial notice. See
e.g., West, 95 Hawai#i at 26-27, 18 P.3d 884, 888-89 (holding that the trial
court must take judicial notice of the speed schedules, even where judicial
notice is not “expressly requested by counsel[,]” and the speed limits
properly noticed constitutes sufficient evidence in support of the
prosecution’s case).

      57
            Thus, judicial notice has nothing to do with whether “an issue
. . . is properly preserved” or “properly addressed” on appeal, see dissenting
opinion at 16, or to “notice arguments raised for the first time on appeal.”
Id. at 25. Similarly, this opinion does not take “judicial notice of an
evidentiary objection that was waived.” Id. at 19.

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statute, here, HRS § 571-84, even though it was not raised

below.58

            As mentioned, West construed HRE Rule 202(b) as

allowing courts of this state to take judicial notice of statutes

even if not “expressly requested by counsel.” 95 Hawai#i at 27,

18 P.3d at 889.     Moreover, Life of the Land, 61 Haw. at 418-19,

606 P.2d at 884-85, Eli v. State, 63 Haw. 474, 480, 630 P.2d 113,

115 (1981), Demond v. Univ. of Hawaii, 54 Haw. 98, 102-04, 503

P.2d 434, 437-38 (1972), establish this court’s power to take

judicial notice of enactments such as HRS § 571-84 not raised by

the parties at trial.

            In West, the defendant was charged with speeding, and

during trial, the prosecution asked the circuit court to take

judicial notice of ordinances establishing the speed limit to

prove that the defendant’s speed was in excess of the limit.                95

Hawai#i at 24, 27, 18 P.3d at 886, 889.         On appeal, this court

observed that HRE Rule 202(b) requires the courts to take

judicial notice of the content of the applicable ordinances even

when not expressly requested by counsel.          Id. at 26-27, 18 P.3d

at 888-89.



      58
            The dissent asserts that judicial notice “establishes rules for
determining how courts can ascertain the content of the law.” Dissenting
opinion at 3 (emphasis omitted). We do not take issue with this. However,
HRE Rule 202 also presumes that “courts are at liberty to discover and apply
the law, whatever its source, to the issues at hand.” Manual on the Hawai#i
Rules of Evidence § 202-2 (Supp. 2011) (emphasis added).

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            In Life of the Land, the plaintiffs, who opposed the

construction of a high rise condominium building, referred to the

“Kakaako Ordinance,” an ordinance that was to control

development, 61 Haw. at 394, 606 P.2d at 871, as “[s]ui generis”

and “the only ordinance of its kind[,]” id. at 417-18, 606 P.2d

at 884.    However, this court took judicial notice of twenty-five

other ordinances, despite the fact that only two were in the

appellate record, to explain the City and County of Honolulu’s

land development and procedure, and to reject the plaintiffs’

assertion that the approval of development was invalid.             Id. at

422, 606 P.2d at 886.      The parties had not asked the court to

review those ordinances, nor had they discussed the ordinances in

their briefs.     Id. at 416, 418, 419, 606 P.2d at 883, 884, 885.59




      59
            The dissent asserts that the instant case is different from Life
of the Land because Life of the Land did not involve taking notice of “an
evidentiary objection that was waived.” Dissenting opinion at 19. First, to
reiterate, the concept of judicial notice has nothing to do with waiver and
must not be confused with plain error. In addition, although the dissent
states that there is an “evidentiary framework” in place under which parties
must specifically object or waive the objection, id. at 25, in fact, if a
party fails to raise any argument, evidentiary or otherwise, that argument is
generally deemed waived. See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d
940, 947 (2004) (“As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on appeal[.]”)
Because the ordinances in Life of the Land were neither in the record nor
raised in their briefs, under the dissent’s approach the defendants presumably
“waived” any argument regarding those twenty-five ordinances. Dissenting
opinion at 3, 17. Nevertheless, in Life of the Land, this court took judicial
notice of the ordinances for substantive purposes. That case established that
this court may take judicial notice of sources of law when such notice
obviously bears directly on the merits, even if such sources were not raised
below or by the parties.

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            In Eli, also instructive, the defendant sought post-

conviction relief pursuant to HRPP Rule 40, arguing, inter alia,

that his guilty plea was not made knowingly, intentionally, and

voluntarily.      63 Haw. at 480, 630 P.2d at 115 (1981).          As to the

foregoing claim, Eli noted that this court must “look at the

entire record in order to determine whether the [defendant’s]

claims or recantation are credible and worthy of belief.”               Id. at

477, 630 P.2d at 116.       “A silent record or a minimal record

places the burden on the State to prove waiver.”             Id. at 477,

478, 630 P.2d at 116.       But the record of the proceeding in which

the defendant entered his plea was never submitted into evidence

during the Rule 40 proceedings.”           Id. at 478, 630 P.2d at 116.

            Eli stated that “[o]rdinarily, matters not presented to

the trial court may not be considered by the appellate court on

appeal.”    Id.    Eli declared, however, that “[w]here the equity of

the situation dictates, we will use our discretion to take

judicial notice of matters of which courts may properly take

judicial notice but which are not part of the record on appeal.”

Id.   (emphasis added).      This court took judicial notice of the

transcript of the proceeding in which the defendant had pleaded

guilty and determined that the defendant’s plea was made

voluntarily and intelligently.60        See id.    We conclude in line


      60
            The dissent suggests that Eli took judicial notice on appeal
because it was an HRPP Rule 40 petition and, thus, required the circuit court
                                                                (continued...)

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with Eli that “equity . . . dictates” notice of HRS § 571-84

under the circumstances of this case.

             In Demond, the plaintiff challenged the denial by the

Labor and Industrial Relations Appeal Board (Board) of her

workmen’s compensation claim against the University of Hawai#i

(UH), for injuries incurred ten years earlier while she was

employed by UH, but working in California.            54 Haw. at 99, 503

P.2d at 435.      The plaintiff argued on appeal that although she

had not given notice to UH of her injuries sooner, UH failed to

disclose the existence and availability of workmen’s compensation

benefits as required by California law.            Id. at 102, 503 P.2d at

437.

             This court noted Demond neither argued that California

law applied nor indicated a desire to take advantage of

California law in the proceedings below.            Id. at 102-03, 503 P.2d

at 437.     Demond said that “[w]e have held in numerous cases that

this court on appeal will not consider issues beyond those that

are properly raised in the trial court[,]” and applied that

principle to workmen’s compensation proceedings.              Id. at 103, 503

P.2d at 437.      Demond acknowledged, however, that this court had

the “power to take judicial notice of applicable foreign law, or


       60
       (...continued)
to look at the entire record. Dissenting opinion at 21-22. But Eli’s
decision to take judicial notice of a “matter[] not presented to the trial
court,” by its own language, hinged on taking judicial notice “where equity of
the situation dictates,” 63 Haw. at 478, 630 P.2d at 116.

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to remand for its application[.]”         Id. at 103, 503 P.2d at 437-38

(citing HRS § 623-1 (repealed 1980).)61

            Despite the dissent’s argument that these prior cases

are “factually distinguishable[,]” dissenting opinion at 19, the

cases establish the principle that this court may take judicial

notice on appeal, even for substantive purposes.            See West, 95

Hawai#i at 27, 18 P.3d at 889, Life of the Land, 61 Haw. at

418-22, 606 P.2d at 884-86, Eli, 63 Haw. at 476-78, 630 P.2d at

115-16, and Demond, 54 Haw. at 103, 503 P.2d at 437-38.62             Taking

judicial notice of HRS § 571-84 is appropriate and necessary

because the applicability of HRS § 571-84 was direct and obvious,

      61
            HRS § 623-1 provided:

                  § 623-1 Judicial notice of common law, state laws,
            and other statutes; ruling reviewable. Every court of this
            State shall take judicial notice of the common law and
            statutes of every state, territory, and other jurisdiction
            of the United States. The court may inform itself of such
            laws in such manner as it may deem proper, and the court may
            call upon counsel to aid it in obtaining information. The
            determination of such laws shall be made by the court and
            not by the jury, and shall be reviewable.

      62
            This court determined that under the specific circumstances in
Demond, the plaintiff “should not at this late stage be allowed to rely on the
law of California to establish her claim to benefits in this State.” 54 Haw.
at 103, 503 P.2d at 438. The dissent maintains that in light of the
foregoing, Demond supports the position that this court may not take judicial
notice of HRS § 571-84 since it was not raised below. See dissenting opinion
at 22-25. In Demond, at all times prior to the appeal, the plaintiff “not
only failed to rely on California law but affirmatively argued that she was
eligible for compensation under Hawaii law.” Id. at 103, 503 P.2d at 438
(emphasis added).
            This case is unlike Demond. In this case, Petitioner did not
“affirmatively argue” at trial, id. at 103, 503 P.2d at 438, that HRS § 571-84
was inapplicable, or that the evidence given in his juvenile proceedings was
admissible. Rather, Petitioner consistently maintained that such evidence was
inadmissible. Moreover, in Demond, the plaintiff sought application of
foreign law that was not directly and obviously applicable and plainly
controlling. But we hold that judicial notice of HRS § 571-84 is controlling
in light of the facts of this case.

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and the statute plainly controlled in light of the facts of this

case.   In that regard, waiver of any “argument” by the parties

has no relevance.     See, e.g., Stenger, 122 Hawai#i at 282, 226

P.3d at 452.63     Thus, the court erred in failing to take notice

of HRS § 571-84 and, hence, we take notice of the statute.64

            Next, the dissent states that HRS § 571-84 is

“analytically indistinguishable” from the HRE and, hence, under

our holding, trial courts must sua sponte consider all sources of

law identified in HRE Rule 202(b), including the HRE since it is

codified by statute.      Dissenting opinion at 12-13, 14.         We do not

so hold.    First, HRS § 571-84 is not a rule of evidence.           A

narrow construction of HRS § 571-84(h) as solely relating to the

admissibility of evidence would be wrong.          See id. at 14.      HRS §

571-84(h) establishes, by statute, a state policy, as explained

supra, of excluding certain juvenile proceedings from subsequent

legal cases in order to protect and rehabilitate juveniles.

            Moreover, the dissent’s view that this opinion requires

trial and appellate courts to notice all errors grounded in one


      63
            HRE Rule 103(a) does not govern when, or under what circumstances,
this court may take judicial notice of a statute.

      64
            To reiterate, we do not take judicial notice of the court’s error,
as the dissent seemingly maintains. Dissenting opinion at 27. The issue is
not whether Petitioner failed to object to the admission of Dr. Camara’s
testimony on the ground that such admission would violate HRS § 571-84(h).
Rather, it is apparent that judicial notice of HRS § 571-84(h) should have
been taken. Consequently, State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675
(1988) and Republic v. Nenchiro, 12 Haw. 189, 220 (Rep. 1899) cited by the
dissent for the proposition that parties must raise objections to evidentiary
errors, dissenting opinion at 12-13, are not relevant.

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of the sources of law identified in HRE Rule 202, without regard

to whether substantial rights were affected, id. at 15, is

mistaken.     This opinion quite clearly does not require courts to

“notice any error, even those that do not implicate substantial

rights.”     Id. (emphasis in original).      Where, as in this case,

the court fails to notice a statute that obviously and undeniably

governs, the failure of which has affected the substantial rights

of a defendant, this court will apply the statute and vacate for

the court’s error.

                                    XVI.

             The dissent’s third argument is that the court’s error

in failing to apply HRS § 571-84(h) is not noticeable for plain

error because (1) “objections”65 to the admission of incompetent

evidence that the defense failed to raise at trial are

“generally” not subject to plain error review, id. at 27, and (2)

defendant’s right to testify was not implicated in this case, id.

at 29.     Because we indicate that plain error may be an




      65
            To emphasize, the issue is not whether Petitioner “object[ed]” to
the admission of evidence (for the failure to object is a prerequisite for
application of the plain error rule), but whether the court erred in
indicating it would grant admission of the juvenile evidence, so as to affect
the substantial rights of the defendant. State v. Miller, 122 Hawai#i 92,
100, 223 P.3d 157, 165 (2010) (noting that, if error in the proceedings
adversely affected the substantial rights of the defendant, the error is plain
error); see HRPP Rule 52(b) (2008) (“Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court.”)

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alternative ground for vacation, respectfully, we respond to what

appears to be the dissent’s wrong view of the plain error rule.

                                     A.

             In tandem with the “purpose” of any “waiver rule[]” is

the obligation to follow the law to ensure fairness and

justice.66    See State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705,

712 (1982) (noting that the “inherent power of the court is . . .

the power to administer justice”).          It is evident that in any

scenario, this court may notice errors affecting a defendant’s

substantial rights, such as in this case.          This is true even

where the error may be related to the admissibility of evidence.

See State v. Pastushin, 58 Haw. 299, 302, 568 P.2d 504, 506

(1977) (stating that “where inadmissible hearsay is so

prejudicial as to deprive the defendant of his constitutional

right to a fair trial, its admission will constitute ground for

reversal, although defense counsel has failed to object”); cf.

State v. Grindles, 70 Haw. 528, 530, 777 P.2d 1187, 1189 (1989)

(noting for plain error, the “trial court’s action in compelling

[the defendant] to put on his evidence prior to the conclusion of

the State’s evidence[,]” because such error “violated his due

process right to a fair trial”).          Under the facts and


      66
            It should be noted that the dissent maintains this court may not
take judicial notice of HRS § 571-84, and the court’s failure to apply HRS §
571-84(h) is not noticeable for plain error. The result is that the bar in
HRS § 571-84(h) would be negated. Respectfully, the dissent’s position would
result in this court being complicit in a violation of HRS § 571-84(h).

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circumstances of the cases cited to by the dissent,67 the

defendants’ substantial rights were not affected, and therefore,

plain error did not apply.       On the other hand, in the instant

case, the court’s erroneous ruling infringed upon Petitioner’s

right to testify.

             In fact, plain error review does apply to erroneous

evidentiary rulings that affect a defendant’s substantial rights.

In State v. Santiago, 53 Haw. 254, 261, 492 P.2d 657, 662 (1971),

this court examined whether the prosecution’s introduction of the

defendant’s prior convictions to impeach his credibility violated

the defendant’s constitutional right to testify in his own

defense.    Concluding that it did, and, thus, that plain error

review was appropriate, this court emphasized that it was

“concern[ed]” that admission of prior convictions would “compel

[the defendant] to forego his privilege to testify.”             Id. at 260,

492 P.2d at 661.68     Similarly, in the instant case, the court’s

ruling “compel[led Petitioner] to forego” testifying insofar as

he expressly stated that he did not testify in part due to the




      67
            State v. Wallace, 80 Hawai#i 382, 410, 910 P.2d 695, 723 (1996)
and State v. Uyesugi, 100 Hawai#i 442, 463-64, 60 P.3d 843, 864-65 (2002).

      68
            The dissent notes that the instant case does not “implicate” the
concerns raised in Santiago because Respondent “offered to introduce the
evidence without mentioning the result of the adjudication.” Dissenting
opinion at 28 n.12. With all due respect, the “adjudication” itself is not at
issue inasmuch as no party or the court took the position that the
adjudication in Petitioner’s juvenile proceeding was admissible. The
dissent’s distinction, therefore, is inapposite.

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court’s ruling, thereby infringing upon his “substantial right”

to testify.69

             Additionally, State v. Cummings, 49 Haw. 522, 528, 423

P.2d 438, 442 (1967), demonstrates that evidentiary rulings, if

affecting a defendant’s substantial rights, can be reviewed for

plain error.      There, the defendant was convicted, after a jury-

waived trial, of robbery in the second degree.             Id. at 522, 423

P.2d at 440.      At trial, a detective testified that, subsequent to

his arrest, the defendant told the detective that he was

“look[ing] for trouble with haoles[.]”            Id. at 525, 423 P.2d at

441.    There was no objection to the detective’s testimony.              The

circuit court “sua sponte” addressed whether it could consider

the oral statement in light of the fact that a statement elicited

by police during an interrogation cannot be used against the

defendant, if the defendant had requested and had been denied an

opportunity to consult with a lawyer.           Id. at 526, 423 P.2d at

441.



      69
            The dissent suggests that plain error is inappropriate because
Petitioner did not make an “offer of proof as to what his testimony would have
been.” Dissenting opinion at 31. “[T]he purpose of an offer of proof . . . is
to provide an adequate record for appellate review and to assist the trial
court in ruling on the admissibility of evidence.” State v. Pulse, 83 Hawai#i
229, 248, 925 P.2d 797, 816 (1996) (citing 1 Wigmore, Evidence § 20(a)
(Tillers rev. 1983)) (emphasis in original). In this regard, Petitioner
stated on the record that if Respondent asked Petitioner on cross-examination
whether he knew a single punch “could,” cause death, Petitioner’s “answer
[would] be ‘no.’” Thus, no offer of proof was necessary inasmuch as the
foregoing plainly “assist[ed]” and was considered by “the trial court in
ruling on the admissibility of [the] evidence” from Petitioner’s juvenile
proceedings, and, as a result, there is “an adequate record for appellate
review” as to what Petitioner would have testified to. Id.

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            This court, noting that “the alleged error” could be a

“matter not raised[]” insofar as “the question of the

admissibility of defendant’s damaging statement [was] not

properly presented for the trial judge’s ruling, nor specified as

error in this appeal,” nevertheless reviewed for plain error

because the “[e]rroneous admission of evidence may constitute

plain error if a fair trial of the accused was thereby impaired,

or if it substantially prejudiced the accused.”            Id. at 528, 423

P.2d at 442 (internal quotation marks, citations, and parentheses

omitted).    In the instant case, as recounted, the erroneous

ruling that would admit improper evidence affected Petitioner’s

substantial right to testify.70       See Domingo, 69 Haw. at 70, 733

P.2d at 692 (stating that, where “the introduction of the

evidence in question [is] prohibited by statute, it constitute[s]

plain error and is noticeable by this court”).

                                     B.

            As to (2), the dissent disagrees that Petitioner’s

right to testify was infringed upon, emphasizing that (a) the

court’s ruling was subject to change, (b) Petitioner could have

testified and refrained from asserting that he did not know a


      70
            The dissent emphasizes that Petitioner stated on the record that
the court’s ruling was “‘one [of] the factors’” Petitioner considered in
deciding not to testify, and suggests this should be considered in our plain
error analysis. Dissenting opinion at 33-34. We respectfully reject the
plain error analysis posited by the dissent under which this court would need
to quantify the effect of a particular error on the defendant’s fundamental
rights. The error need only “affect[ a] substantial right[]” to be noticed
for plain error. (Emphasis added.) HRPP Rule 52(b).

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single punch would cause a substantial risk of death, and (c) the

court’s ruling was “‘one of the factors’” contributing to

Petitioner’s decision not to testify.        Dissenting opinion 31.

          As to (a), the court’s in limine ruling was not subject

to change insofar as the court ruled that it would allow the

cross-examination and later reconfirmed its ruling after the

prosecution had rested its case.         The court stated that it would

“give latitude[]” to the prosecution to discuss the issue, over

the defense’s “objection[,]” and explained that it “would allow”

on cross-examination the question whether Petitioner knew that

one punch “could” cause death.       After defense counsel stated that

Petitioner did not testify in part because Respondent would be

allowed to introduce Dr. Camara’s testimony, the court

acknowledged that Petitioner’s statement was “accurate” and that

it would “allow [the prosecutor] to get into the earlier

[juvenile] situation[,]” thereby reconfirming that the court

would have allowed the admission of such evidence if Petitioner

testified.   Thus, the ruling did not change.         See U.S. v. Greer,

791 F.2d 590, 594 (7th Cir. 1986) (reviewing the error of an in

limine ruling even where the defendant failed to testify because

there was a complete record insofar as the legal, not factual,

“determinative question[]” was “whether a confession elicited in

violation of a defendant’s [F]ifth [A]mendment rights may ever be

used for impeachment purposes”).


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            As to (b), respectfully, criticism in response to the

Supreme Court’s decision in Luce v. United States, 469 U.S. 38,

41-43 (1984), highlights the flaw in the dissent’s reasoning.              In

Luce, the Supreme Court held that a defendant must testify to

preserve his or her right to appeal a trial court’s in limine

ruling that prior convictions are admissible for impeachment

purposes.    469 U.S. 38, 40-42 (1984).      “Luce has been subjected

to little but steady and unrelenting criticism[.]”           James Joseph

Duane, Appellate Review of In Limine Rulings, 182 F.R.D. 666

(1999).   One criticism of Luce, out of many, is that it “forces

upon an accused what is arguably an unfair choice; testify under

circumstances where it is virtually certain the prosecutor will

regale the jury with tales of prior convictions, or refrain from

testifying, deprive the jury of the accused’s side of the story,

and lose all chance to appeal.”       28 Charles Alan Wright, et al.,

Federal Practice and Procedure:       Evidence § 6119 at 123 n.49 (1st

ed. 1993).    Since Luce, the Supreme Court has formally settled

into the position that a defendant has a right to testify in his

own behalf, Rock v. Arkansas, 483 U.S. 44, 49-51 (1987), and

“[i]n a host of other contexts, . . . has held that a

constitutional right may be violated, even where the accused is

not strictly forbidden from exercising that right, as long as

some trial ruling undermines the right by improperly and unfairly

making its exercise costly[,]” Duane, Appellate Review of In


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Limine Rulings, 182 F.R.D. 666 (emphasis added) (internal

quotation marks omitted).      Indeed, requiring the defendant to

testify in order to preserve the issue for appeal is wrong, since

it fails to recognize “the significance that such impeachment has

on the defendant’s decision concerning the testimony.”            Paul F.

Rothstein, Federal Rules of Evidence: A Fresh Review and

Evaluation, 120 F.R.D. 299, 363 (1987).

          States declining to adopt Luce have reasoned that
          the problem of meaningful review is unfounded when the
          record sufficiently demonstrates, through an offer of proof,
          the nature of the defendant’s proposed testimony and that
          the defendant refrained from testifying when faced with
          impeachment by a prior conviction. Under such conditions, a
          reviewing court would have a sufficient record to conduct a
          harmless error analysis.

Warren v. State, 124 P.3d 522, 527 (Nev. 2005) (emphases added).

In the instant case, it would be unwise to “apply” a rule that,

in effect compelled Petitioner to make an “unfair choice” of

either testifying under circumstances where it was “virtually

certain” the prosecutor would “regale the jury” with Dr. Camara’s

testimony, or remain silent and “deprive the jury” of his

testimony and “lose all chance of appeal.”         28 Charles Alan

Wright, et al., supra, § 6119 at 123 n.49.         Of course, as noted

previously, HRS § 571-84 bars the admission of evidence from a

juvenile proceeding in the instant case, precluding any effort to

“regale the jury” with Dr. Camara’s testimony, further

underscoring the inapplicability of Luce’s rationale to this

case.

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           As to (c), as discussed supra, Petitioner’s testimony

was critical to his claim of self-defense insofar as the defense

is based on the defendant’s subjective belief and state of mind

with respect to the facts and circumstances surrounding his or

her use of force.    Although the effect of the court’s ruling on

Petitioner’s decision not to testify cannot be measured with

precision, any error that infringes on a substantial right such

as the right to testify may be noticed for plain error.            See

Staley, 91 Hawai#i at 286, 982 P.2d at 915 (“Because the circuit

court’s error infringed upon [the defendant’s] constitutional

right to testify, we address it as plain error”) (emphasis

added); see also Wakisaka, 102 Hawai#i at 515, 516, 78 P.3d 317,

at 329).

                                   XVII.

           The dissent’s fourth argument that the court’s ruling

was not in violation of HRS § 571-84, maintains that (1) no

appellate court has ruled on whether HRS § 571-84 “precludes a

defendant’s cross-examination regarding juvenile matters in order

to rebut testimony by the defendant which the State argues was

false or misleading[,]” dissenting opinion at 32; (2) “other

state courts” have recognized that a defendant may not use

“similar statutes to shelter such testimony from adversarial

testing,” id.; (3) the court’s ruling was “contingent on

[Petitioner] ‘opening the door’” by testifying that he did not


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know that one punch could kill, id. at 36; and (4) in the in

limine ruling the court “offered the option of introducing the

relevant evidence without reference to the adjudication or its

result[,]” id. at 37.71

                                     A.

              As to (1), respectfully, HRS § 571-84 plainly and

unambiguously provides that such evidence may not be used “for

any purpose” whatsoever.       Nobriga and Riveira I & II have already

directly confirmed that evidence, or what the dissent refers to

as “juvenile matters[,]” dissenting opinion at 32, from a

juvenile proceeding are inapplicable in any adversary proceeding.

Nevertheless, the dissent contends that Nobriga did not deal with

the question of whether “and to what extent evidence from prior

juvenile adjudications was admissible at trial[,]” but held that

“such evidence” was available for use in sentencing.             Id. at 32

n.15.      But Nobriga expressly stated that the juvenile evidence is

inadmissible in an “adversary proceeding.”          56 Haw. at 79, 527

P.2d at 1272.      In that regard, it expressly “ruled” on the issue

of “whether” evidence from prior juvenile adjudications was

admissible, see dissenting opinion at 32, and concluded that it

was not.




      71
            Luce, see supra, is persuasive as to the dissent’s fourth argument
which is therefore, not addressed further.

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           Riveira I & II also confirmed that the subject evidence

is inadmissible in a criminal trial.         In that case, this court

adopted the analysis set out in the Riveira I dissent, including

that portion of the dissent stating that, pursuant to HRS § 571-

1, any evidence used in juvenile law violation proceedings

“cannot be offered as evidence for any purpose whatever [] in any

court[,]” Riveira I, 92 Hawai#i at 559, 993 P.2d at 593 (Acoba,

J., dissenting) (internal quotation marks and citation omitted)

(brackets in original).72

                                     B.

           As to (2), despite the controlling precedent from this

jurisdiction flatly prohibiting the use of the challenged

evidence, the dissent looks to three cases from outside this

jurisdiction for support, suggesting that such evidence may be

admissible.    See dissenting opinion at 32-36.         With all due

respect, the dissent’s reliance on such cases overlooks the



     72
            According to the dissent, Riveira II’s holding that “a juvenile
adjudication” may not be treated as a “conviction for purposes of applying a
repeat offender sentencing statute[,]” makes it distinguishable from the
instant case. Dissenting opinion at 32 n.15. But the ICA dissent’s reasoning
in Riveira I, that was adopted in Riveira II, is directly applicable. There,
because the express language of HRS § 571-1 provides that no adjudication by
the family court shall be deemed a conviction, such an adjudication could not
be treated as a conviction. Riveira I, 92 Hawai#i at 559, 993 P.2d at 593;
see Riveira II, 92 Hawai#i at 523-24, 993 P.2d at 556-57 (adopting dissent’s
observation in Riveira I that treating a juvenile adjudication as a criminal
conviction is violative of the provisions in HRS chapter 571 and a rejection
of the family court system). Similarly, HRS § 571-84 expressly prohibits the
admission of evidence from a juvenile proceeding for any purpose whatsoever,
and, “in the absence of any specific language in a statute to the contrary,”
Riveira I, 92 Hawai#i at 559, 993 P.2d at 593, HRS § 571-84(h) “control[s,]”
id.

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fundamental fact that HRS § 571-84(h) mandates the exclusion of

such evidence, despite what may be culled from the law of other

jurisdictions.     Moreover, two of the three cases cited are not

contrary,73 and the third case, State v. Rodriguez, 612 P.2d 484,


      73
            In Lineback v. State, 301 N.E.2d 636, 637 (Ind. 1973), the Indiana
Supreme Court determined that a character witness can be asked whether he knew
the defendant was an “incorrigible juvenile” so that the “jury may determine
whether the so-called character witness is, in fact, conversant with the
defendant’s reputation in the community . . . .” The dissent maintains in
Lineback, stands for the general proposition that evidence from juvenile
proceedings may be admissible in “certain narrow circumstances.” Dissenting
opinion at 33 n.16. But unlike the statute in Lineback which precluded our
statute, HRS § 571-84, prohibits the use of evidence from juvenile proceedings
“for any purpose whatever,” with the exception of use in subsequent juvenile
proceedings of the type set forth under the statute.
            In addition, the dissent states that Lineback suggests that “‘an
entirely different principle of law’ arguably prevails if a defendant gives
false or misleading testimony.’” Dissenting opinion at 35 n.16 (quoting
Lineback, 301 N.E.2d at 637). First, Lineback more specifically stated that
“‘an entirely different principle of law prevails when a defendant directly
places his reputation in the community before the jury through character
witnesses.’” 301 N.E.2d at 637. Elaborating on that “different principle of
law[,]” id. Lineback explained that, “‘[w]hen a defendant tenders his supposed
good character in evidence, he thereby invites scrutiny and disclosure of
specific instances of his misconduct to depreciate the weight of the testimony
of his character witness, although the answers elicited may incidentally
impute to him other guilt.’” Id. (quoting Jordan v. State, 110 N.E.2d 751,
753 (1953)). Lineback explained, “[a]lthough juvenile matters are secret and
the results thereof not open to public scrutiny as a general proposition, a
defendant who places his reputation before the jury through character
witnesses opens his entire life to scrutiny.” Even if this jurisdiction had
adopted a similar exception to the prohibition set forth in HRS § 571-84(h),
such exception would not be implicated under the facts of this case.
Petitioner did not “directly place[] his reputation in the community” thereby
opening “his entire life to scrutiny.” Id. Lineback is thus inapposite.
            Also, subsequent to Lineback, the Indiana Supreme Court determined
that such questioning “is proper only as a means of testing the witness’
actual knowledge of the defendant’s general reputation in the community, and
not as a means of discrediting the defendant or of proving the truth of the
assertion.” Randolph v. State, 378 N.E.2d 828, 833 (Ind. 1978) (emphasis
added). Insofar as the instant case did not involve the attempted admission
of evidence as a means of testing a character witness’s “actual knowledge” of
reputation evidence, Lineback is inapplicable.
             In State v. Marinski, 41 N.E.2d 387, 388 (1942), “the
defendant[,] upon his own insistence and over the prosecuting attorney’s
objection[,]” testified as to how he spent the previous years of his life, but
failed to mention that he was incarcerated for juvenile delinquency.
(Emphasis added). The prosecutor, on cross-examination, asked about this part
of the defendant’s history. The Ohio court relied heavily on the fact that
because the “defendant himself” “insisted upon narrating the story of his
                                                                (continued...)

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486 (Ariz. 1980), which the dissent maintains is “particularly

instructive[,]” dissenting opinion at 34, is in fact inapposite.

There, the Arizona court held that “juvenile records” are

admissible when “the defendant presents favorable evidence

regarding his juvenile history[.]”         612 P.2d at 487.

            The Arizona court was applying a statute, unlike the

one in the instant case, that provided in pertinent part that

“[t]he disposition of a child in the juvenile court may not be

used against the child in any case or proceeding in any court

other than a juvenile court[.]”        Id. at 486 (emphasis added).

The dissent concedes that the Arizona statute is narrower than

HRS § 571-84 insofar as it does not prohibit “[e]vidence given


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       (...continued)
previous years[,]” the prosecutor could question the defendant about the
testimony. Contrary to the dissent’s suggestion, see dissenting opinion at
35, in this case, Petitioner did not “insist upon narrating the story of his
previous years.” Marinski, 41 N.E.2d at 388. In fact, Petitioner “insist[ed
that there be no mention of his “previous years.” Id.
            Furthermore, Malone v. State, 200 N.E. 473, 477 (1936), which was
discussed in Marinski, is directly applicable to this case. There, the
prosecutor asked the defendant if he had “wrecked a railroad train[,]” which
was a “matter[]” “disposed of” in juvenile court. Id. The Ohio Supreme Court
explained that the “defendant was being examined as to matters which had been
the subject of proceedings in the juvenile court,” id. at 478, and held that
the questioning was improper inasmuch as “the law prohibits the use of
juvenile court proceedings, or of proof developed thereon, against a child in
any other court to discredit him or to mark him as one possessing a criminal
history[,]” id. (emphases added).
            Similarly, in the instant case, the prosecutor would have
questioned Petitioner about “matters[,]” i.e., Dr. Camara’s testimony, that
were “developed” in a prior juvenile proceeding, to “discredit” Petitioner,
and, thus, the evidence was inadmissible. Although the dissent attempts to
distinguish Malone, see dissenting opinion at 35-36 n.17, noting that the
prosecutor in that case pointed to several matters in the defendant’s juvenile
proceedings, Malone’s decision did not hinge on the number of “matters which
had been the subject of proceedings in the juvenile court.” Id. at 452. The
reference to a single matter from those proceedings would have been improper
under Malone. Likewise, under HRS § 571-84(h), the use of any evidence from a
defendant’s juvenile proceedings is plainly prohibited.

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in” juvenile proceedings, HRS § 571-84(h), but maintains that the

“reasoning” applies because Rodriguez stands for the proposition

that even a seemingly absolute bar on the admission of juvenile

evidence must yield to competing concerns on occasion.

Dissenting opinion at 35-36 n.19.        However, unlike HRS § 571-

84(h), the statute at issue in Rodriguez did not expressly

provide that the disposition of the minor in the juvenile court

may not be used against the minor “for any purpose whatever[.]”

In view of the foregoing statutory language in HRS § 571-84(h),

the dissent’s approach would run counter to the express directive

in the statute.

                                    C.

          In connection with (3), the dissent maintains that the

ruling was “contingent on” Petitioner “opening the door” on

direct examination by testifying that he did not know that one

punch could kill.    Dissenting opinion at 36.        According to the

dissent, because Dr. Camara stated that “a punch and some kicks

carried a substantial risk of death[,]” it would be reasonable

that Petitioner “should have known” that a single unexpected

punch also carried such a risk.       Id.

          Respectfully, this is wrong.         Initially, inasmuch as

HRS § 571-84(h) expressly prohibits the admission of evidence,

irrespective of the substance of his testimony, Petitioner could

not “open” any “door” that would have admitted the evidence from


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the prior juvenile proceeding.        Despite the court’s ruling, such

evidence was barred.74     See Nobriga, 56 Haw. at 79, 527 P.2d at

1272 (expressly stating that the evidence is inadmissible in an

“adversary proceeding”); cf. Santiago, 53 Haw. at 260, 492 P.2d

at 661 (“[T]o convict a criminal defendant where prior crimes

have been introduced to impeach his credibility as a witness

violates the accused’s constitutional right to testify in his own

defense.”).    HRS § 571-84(h) establishes a state policy that

evidence in a family court juvenile proceeding is inadmissable in

any adversary proceeding in other courts because the core

purposes of juvenile proceedings are to protect and rehabilitate

the juvenile.

            In any event, realistically, Petitioner would not have

“opened the door”75 to the use of the juvenile evidence on direct

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            The dissent disagrees with the proposition that Petitioner could
not have “opened the door” to the use of the juvenile evidence because HRS §
571-84 completely bars the use of such evidence under all circumstances. The
dissent contends that there is a distinction between “using a privilege as a
as a ‘sword’ rather than merely a ‘shield.’” Dissenting opinion at 36 n.20
(emphasis added). In light of the plain language of HRS § 571-84 prohibiting
the use of juvenile evidence “for any purpose[,]” the barring of evidence is
not a “privilege” similar to the “physician-patient privilege” as asserted by
Petitioner, and so the shield/sword reference is not apt. Id. Because HRS §
571-84 is not a “privilege,” State v. Peseti, 101 Hawai#i 172, 180, 65 P.3d
119, 127 (2003), cited by the dissent, see id., in which this court stated
that the statutory privileges “may often give way to a strong public
interest[,] is inapplicable. Moreover, Peseti held “that, when a statutory
privilege interferes with a defendant’s constitutional right to cross-examine,
then, upon a sufficient showing by the defendant, the witness’ statutory
privilege must, in the interest of the truth-seeking process, bow to the
defendant’s constitutional rights. Id. at 181, 65 P.3d at 128. The dissent
does not point to a right of constitutional magnitude to which HRS § 571-84(h)
must give way.

      75
            “Opening the door” has been defined as where “the party introduces
evidence or takes some action that makes admissible evidence that would have
                                                                (continued...)

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examination.    It was not Petitioner that sought to introduce Dr.

Camara’s testimony in this case but Respondent that sought to

admit Dr. Camara’s testimony in its case-in-chief.            The court’s

ruling, although it would have disallowed Respondent from

introducing the evidence in its case-in-chief would have allowed

Respondent to use the evidence to impeach Petitioner on cross-

examination.    Without any reference to the juvenile incident or

the evidence by Respondent, Petitioner could not have “opened the

door” to its use.

            In connection with (4), the dissent suggests that

because “HRS § 571-84(h) does not apply absent an adjudication[,]

. . . [i]t would follow that . . . the admission of information

relating to [the] misconduct” of the juvenile who was adjudicated

would be admissible in adult adversarial proceedings because

“[o]therwise a juvenile who was adjudicated would stand in a

substantially better position at his adult trial than one who was

not adjudicated, despite having engaged in the same conduct.”

Dissenting opinion at 37-38.        It should be apparent, however,

that there would be even more reason for the court to exclude



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         (...continued)
previously been inadmissible; e.g., when a criminal defendant introduces
evidence of his good character, he ‘opens the door’ to prosecution evidence of
bad character.” 21 Charles Alan Wright, et al., Federal Practice and
Procedure: Evidence § 5039 at 829 (2d ed. 2000); State v. McElroy, 105
Hawai#i 352, 357, 97 P.3d 1004, 1009 (2004) (“When a defendant testifies to
certain facts or issues during his direct examination, he ‘opens the door’ to
further inquiry into those matters on cross-examination.”) (Internal
quotation marks and citation omitted.)

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reference to the “misconduct[,]” id., of a juvenile where he or

she was not adjudicated a law violator.         The dissent suggests,

nevertheless, that evidence of the misconduct, without the

adjudication of a law violation, should be admissible.            This

would contravene the ban against use of the evidence for any

purpose whatsoever in HRS § 571-84(h).         The same would apply to

efforts of admitting “bad acts” under HRE Rule 404(b).

Dissenting opinion at 38 n.22.

                                    E.

           Ultimately, in any event, it would not be a “reasonable

inference” that Petitioner “should have known,” based on Dr.

Camara’s testimony, that one punch could have caused death.                See

HRE Rules 403, 404.     As stated previously, Dr. Camara did not

expressly testify that punching and kicking someone several times

in the face could cause a substantial risk of death.            The State

asked Dr. Camara, “[B]ased on your education, training and

experience, with respect to the injuries to [complainant] . . . ,

did the injury create a substantial risk of death?           (Emphasis

added.)   He replied, “No.”     (Emphasis added.)      The State then

showed Dr. Camara “HPD Form 13.”         He explained, “When I filled

this out, I was thinking more in terms of an injury of the

severity that [complainant] had[,] could have led him to have a

subdural hematoma.”     On cross-examination, Dr. Camara affirmed

that, “when [he] talked about substantial risk of death with


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brain hemorrhaging causing a subdural hematoma, [he] said . . .

the type of injury [complainant] had could cause a subdural

hematoma but in this case it didn’t[.]”         (Emphasis added.)      Dr.

Camara was asked on cross-examination whether in his conclusion

regarding complainant’s injuries creating a substantial risk of

death, he was “talking about possibilities[,]” and he responded,

“The risk, yes.”    (Emphasis added.)

           The instant case involved a single punch to decedent’s

head that did not result in a fracture of any kind, and plainly,

the multiple kicks and punches in the juvenile case did not cause

death.   In the instant case only one punch caused death.           In

light of the logical opposing conclusions that would be drawn

from the two incidents, the existence of the supposed fact that

one punch could cause death and that Petitioner would know this,

would not be made more or less probable by evidence that the

multiple kicks and punches in the juvenile case that were far

more “severe” did not cause death.

           Because similarity between the two incidents is

lacking, evidence of Dr. Camara’s testimony, and the

qualifications therein, would not tend to prove the “fact” that

Petitioner would know from such testimony that one punch could

create a substantial risk of death more or less probable.             The

facts in the juvenile proceedings were not so similar to the

facts in this case so as to impute to Petitioner knowledge of the


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fatal effect of one punch.      See discussion, supra.       Moreover, Dr.

Camara testified on cross-examination that the “risk” of death

was only a “possibility,” not that it was “substantial,” removing

the existence of Petitioner’s knowledge as a fact from the realm

of probability.

            Also, admission of the doctor’s testimony rests on

several unstated assumptions that undercut the testimony’s

probative value.    There is nothing to establish that Petitioner,

who was a juvenile at the time, could deduce from Dr. Camara’s

opinion testimony that a single punch could cause the same

injuries, of the same severity, suffered by complainant, which

could then in turn, create a substantial risk of death to

decedent.    It would have to be assumed that Petitioner, as a

juvenile, understood the import of the testimony and that

although the doctor rendered an opinion with respect to a

specific case, that opinion could be treated as a matter of

incontrovertible fact in all cases so as to impeach Petitioner in

the instant case.    Under these circumstances, Dr. Camara’s

testimony was not probative of whether Petitioner knew a single

punch could purportedly cause a substantial risk of death.             In

sum, the juvenile evidence was neither relevant nor probative of

the fact that Petitioner would know a single punch could cause a

substantial and unjustifiable risk of death, but would only

result in unfair prejudice.      See HRE Rules 403, 404.


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                                  XVIII.

          For the reasons set forth herein, the September 10,

2008 judgment of conviction and sentence filed by the court as to

Manslaughter is vacated and the case remanded to the court for a

new trial.   The ICA’s December 15, 2010 judgment is affirmed in

part and vacated in part on the grounds set forth herein.


Emmanuel V. Tipon                        /s/ Simeon R. Acoba, Jr.
(Sparlin & Tipon,
for petitioner/                          /s/ James E. Duffy, Jr.
defendant-appellant
                                         /s/ Sabrina S. McKenna
Donn Fudo, Deputy
Prosecuting Attorney,
City and County of
Honolulu, for respondent/
plaintiff-appellee




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