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State v. McGhee

Intermediate Court of Appeals of Hawai‘i.
Oct 23, 2015
358 P.3d 761 (Haw. Ct. App. 2015)

Opinion

No. CAAP–14–0001217.

10-23-2015

STATE Of Hawai‘i, Plaintiff–Appellee, v. Jamal McGHEE, Defendant–Appellant.

William H. Jameson, Deputy Public Defender, On the briefs, for Defendant–Appellant. Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, On the briefs, for Plaintiff–Appellee.


William H. Jameson, Deputy Public Defender, On the briefs, for Defendant–Appellant.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, On the briefs, for Plaintiff–Appellee.

FUJISE and REIFURTH, JJ., with NAKAMURA, C.J., dissenting.

SUMMARY DISPOSITION ORDER

Defendant–Appellant Jamal McGhee (McGhee) timely appeals from the October 13, 2014 Notice of Entry of Judgment and/or Order entered by District Court of the First Circuit Honolulu Division (District Court), convicting him of Terroristic Threatening in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707–717(1) (2014).

The Honorable Linda K.C. Luke presided.

HRS § 707–717 states “(1) A person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided in section 707–716.(2) terroristic threatening in the second degree is a misdemeanor.” (block format altered).

McGhee was also charged with Harassment in violation of HRS § 711–1106(1)(a) (2014) but the charge was dismissed on the State's motion.



On appeal, McGhee argues as his sole point on appeal that the District Court plainly erred when it admitted the Complaining Witness's (CW) statement to police into evidence during closing argument.

After a careful review of the issue raised and the arguments made by the parties, the applicable authority, and the record, we resolve McGhee's point on appeal as follows and affirm.

Taking the District Court's actions in context, we are not convinced that the court admitted the subject statement into evidence, or if it did so, that the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” or that it is necessary to correct the error “to serve the ends of justice, and to prevent the denial of fundamental rights.” See State v. Nichols, 111 Hawai‘i 327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998) ).

The evidence at trial consisted of the testimony of the CW for the prosecution, who testified that she felt “threatened” by McGhee's “screaming and swearing and cursing” directed at everyone present and threats directed at her personally that he could “kill” her and “beat [her] up.” On cross-examination, the CW was asked whether, on the night in question, she felt “threatened and afraid,” to which she responded, “Mn-hmm” and whether it was true she just testified that it was “okay for you to go outside and be calm and try to calm [McGhee] down,” to which she affirmed, “I guess.” McGhee, as the sole witness for the defense, testified that while he was present at CW's business on the night in question, he did not see the CW until after the police arrived and did not yell.

In closing argument, both counsel presented argument in support of their respective witnesses and against the opposing witnesses' credibility. Relevant to the issue on appeal, defense counsel argued,

And I don't think there's no risk of threatening if [CW] feels like she can go outside and calm the situation down. As she stated herself, she was not afraid at that time and she could go outside.

In rebuttal, the State's attorney argued,

[Prosecutor]: Your Honor, I—I think I just, in candor to the Court, given what the defense argument has been as far as to the afraid [sic], I do need to point out although this wasn't raised as evidence in this case, out of fairness to the defendant I believe I do need to point it out. Defense did start to impeach the witness with, as she stated previously, that she was afraid. I believe what they were referring to was a portion of the written 252 that the witness was not confronted with.

I'm not going to raise that argument that she—that is not part of the evidence in this case, I don't have a problem with the Court considering that was included in the 252. I just put that out there in fairness to the defense. Nonetheless, the State would still argue that the witness be found credible.

THE COURT: So your representation in the 252

[Prosecutor]: the 2—in the 252 there was a statement that I was afraid. However, the State is urging the Court to find that her testimony in court is credible. I feel it just as important to point out because I know that the defense started asking about that but didn't finish laying the foundation for it. So just out of fairness, I just think it's appropriate to note that for the Court.

THE COURT: And the portion of the 252 is that the CW was afraid?

[Prosecutor]: Correct, Your Honor, if I could just read the portion for the Court?

THE COURT: [Defense Counsel]?

[Defense Counsel]: Yes, Your Honor.

THE COURT: May he read it?

[Defense Counsel]: Yes, Your Honor.

[Prosecutor]: It reads: At the time I was afraid and call the police. The tense is incorrect in that.

The District Court immediately rendered its verdict.

While ill-advised, the offer by the prosecution was not, in context, an offer to introduce evidence, as the statement contradicted the testimony of the CW who testified that she felt threatened but went out to meet McGhee because he was threatening others and she felt that she could calm him down. Rather, it appears that the prosecutor, in an abundance of caution, wanted to disclose that, consistent with the defense's crossexamination, the CW had previously made a statement that was arguably inconsistent with her direct examination testimony. The District Court did not rule that the single sentence read from the CW's 252 was admitted into evidence and did not mention it further. Thus, taking the exchange in context, it does not appear the statement was admitted or meant to be treated as evidence.

Moreover, even if it was, the substance of the statement was not relevant to the issues at trial. The crime of Terroristic Threatening does not require proof that the victim was actually placed in fear by the statements of the defendant. State v. Chung, 75 Haw. 398, 413, 862 P.2d 1063, 1071 (1993) ( “Actual terrorization is not a material element of the offense of terroristic threatening.” quoting State v. Nakachi, 7 Haw.App. 28, 32, 742 P.2d 388, 391 (1987) ). Moreover, the subject statement could not have contributed to the conviction as, based on the examination and cross-examination of the CW, the District Court was already aware that the CW acknowledged feeling threatened and afraid and she nevertheless went out to meet McGhee. The fact that the CW gave a statement that she called the police because she was afraid did not add to her credibility and arguably detracted from it, insofar as she vacillated between her stated reasons for calling the police. Therefore, any error committed by hearing the subject statement was harmless.

Therefore, the October 13, 2014 Notice of Entry of Judgment and/or Order entered by District Court of the First Circuit Honolulu Division is affirmed.

DISSENTING OPINION BY NAKAMURA, C.J.

I respectfully dissent.

I believe it was prosecutorial misconduct for the prosecutor in rebuttal closing argument to refer to evidence that had not been introduced at trial—namely, the statement of the complaining witness (CW) to the police that at the time of the incident, she “was afraid and call the police.” The prosecutor twice referred to the CW's statement that she was afraid before offering to read the statement. Although defense counsel did not object to the prosecutor's subsequent reading of the CW's statement, it was error for the District Court to receive and consider this evidence, which had not been admitted at trial.

The prosecutor attempted to justify his reference to the non-admitted evidence by stating that he was doing so “in fairness to the defense.” However, contrary to the prosecutor's suggestion, the CW's statement to the police that she was afraid was not helpful to the defense. Rather, it supported the prosecution's theory that Defendant–Appellant Jamal McGhee (McGhee) had terroristically threatened the CW. It also contradicted testimony elicited by the defense on crossexamination of the CW that suggested that the CW had not been afraid of McGee, which the defense used to impeach the CW's direct-examination testimony that she felt threatened. For the same reason, the CW's statement to the police was beneficial to the prosecution because it served to blunt the effect of the defense's cross-examination by injecting into the trial proceedings non-admitted evidence consistent with the CW's direct-examination testimony that she felt threatened.

The defense elicited the following testimony during its crossexamination of the CW:

Q. Okay. And you—at that time you didn't—at the time when you heard supposedly, allegedly, Mr. McGhee yelling, you didn't call the police at that time?


A. Well, I thought I can calm him down or Vanessa could calm him down.


Q. So you felt like you could go outside and calm him down? A. Yeah. And Vanessa could.


Q. All right. Okay. So you—despite him yelling outside, sort of screaming like you describe it, you felt okay to go outside?


A. Yeah. I mean, I'm almost 70. I'm not afraid to be—if he wants to kill me, kill me.



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The case turned on the credibility of the only two witnesses who testified at trial—the CW and McGhee. The improper injection of the non-admitted evidence of the CW's statement to the police served to bolster the CW's credibility and prejudicially affected McGhee's substantial rights. Under the circumstances presented, I would vacate McGhee's conviction and remand the case for a new trial.


Summaries of

State v. McGhee

Intermediate Court of Appeals of Hawai‘i.
Oct 23, 2015
358 P.3d 761 (Haw. Ct. App. 2015)
Case details for

State v. McGhee

Case Details

Full title:STATE Of Hawai‘i, Plaintiff–Appellee, v. Jamal McGHEE, Defendant–Appellant.

Court:Intermediate Court of Appeals of Hawai‘i.

Date published: Oct 23, 2015

Citations

358 P.3d 761 (Haw. Ct. App. 2015)
136 Hawaii 192