author: OPINION OF THE COURT BY WILSON, J.

text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Walter BROWN, Petitioner/Defendant-Appellant.
    SCWC-15-0000354
    Supreme Court of Hawai'i.
    JULY 25, 2019
    Jacquelyn T. Esser (William H. Jameson, Jr. on the brief and application), for Petitioner
    Sonja P. McCullen, Honolulu, for Respondent
    McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
   OPINION OF THE COURT BY WILSON, J.

Petitioner/Defendant-Appellant Walter Brown ("Brown") appeals his assault conviction on the grounds that his constitutional right to confront an adverse witness was violated. A jury found Brown guilty of one count of assault in the second degree under Hawai'i Revised Statutes ("HRS") § 707-711(1)(a) (2014) ; he was sentenced to a term of probation of four years with special terms and conditions. The Intermediate Court of Appeals ("ICA") affirmed the Circuit Court of the First Circuit's ("circuit court") judgment and sentence. Brown contends that his constitutional right to confrontation was violated when the circuit court refused to allow cross-examination of the complaining witness on two topics relevant to her bias, interest, or motive for testifying against him. Specifically, Brown argues he should have been permitted to cross-examine the complaining witness regarding her pending misdemeanor assault charge arising from the same incident for which he was charged, and her probation status resulting from a separate assault charge.

Under the constitutions of the United States and the State of Hawai'i, the right to confront witnesses is fundamental to a fair trial. U.S. Const. amend. VI ; Haw. Const. art. I, § 14. When a trial court errs by violating that right, a conviction obtained at trial will be upheld only if the error was harmless beyond a reasonable doubt. In this case, Respondent/Plaintiff-Appellee State of Hawai'i ("the State") concedes that Brown's constitutional right was violated, but contends the error was harmless beyond a reasonable doubt. Because the error deprived the jury of information about the complaining witness, the exclusion of which might have contributed to its decision to convict, see State v. Acacio, 140 Hawai'i 92, 98, 398 P.3d 681, 687 (2017), the violation of Brown's right to confrontation was not harmless beyond a reasonable doubt.

I. BACKGROUND

Brown was charged with one count of assault in the second degree and one count of assault in the third degree as a result of a fight at a restaurant in Honolulu on February 20, 2013, at around 1:30 p.m. The fight involved Brown, his pregnant wife ("Wife"), and his two daughters from a previous relationship, one of whom is the complaining witness ("CW") and the other of whom is CW's sister ("Sister"). CW and Sister were at the restaurant to meet their mother ("Mother"). The facts are disputed. CW and Sister provided testimony which portrayed Brown as the initial aggressor. Brown and Wife testified that Brown acted in self defense and did not initiate the altercation.

A. State's Motion in Limine and Defense's Notice of Intent Regarding Prior Bad Acts of CW

Prior to trial, the State filed a motion in limine to exclude any prior bad acts of its witnesses. In its motion, the State sought an order compelling Brown to disclose "the date, location and general nature of any prior bad acts of any of the State's witnesses, if any, that the Defendant intends to introduce or refer to during cross-examination of any State's witness or during the direct examination of any defense witness" and excluding or limiting such evidence under Hawai'i Rules of Evidence ("HRE") Rules 401, 402, and 403.

Brown similarly filed a pretrial notice of intent to introduce evidence of the following five incidents or facts relating to CW, members of the public, and members of her family: (1) in 2013, CW was charged with harassment stemming from an incident in which she allegedly threw a soda can into a driveway where people had gathered for a birthday party while yelling insults; (2) in 2010, CW was charged with terroristic threatening in the second degree for an incident in which she allegedly threatened to kill Mother, to which CW later pleaded no contest to an amended charge of harassment; (3) on February 20, 2013, CW was arrested and charged with assault in the third degree against Wife and assault in the third degree against Brown for conduct arising out of the incident at the restaurant; (4) in 2013, CW was arrested and charged with abuse of family or household members arising from an incident in which she allegedly struck her daughter in the face, to which she later pleaded guilty to a charge of assault in the third degree; and (5) CW was under misdemeanor probation supervision as a result of her plea to the assault in the third degree charge arising from the assault of her daughter.

At the pretrial hearing to address the State's motion in limine and Brown's notice of intent, the circuit court denied Brown's motions to admit evidence of the two assault charges arising out of the incident at the restaurant and to admit evidence that CW was on probation. However, the circuit court granted Brown's motions to introduce evidence of the three past incidents of violence, but with a limitation that defense counsel could admit evidence of only two of the three incidents, as introducing evidence of all three would be more prejudicial than probative.

In denying Brown's motion to admit the evidence of the charges against CW arising out of the incident at the restaurant, the circuit court stated that the arrest at the restaurant was "irrelevant to whether or not the State can make its burden of proof as to the material elements as to the defendant. And so I think that interjecting the fact that the complaining witnesses were arrested confuses the jury and misleads them in an unfair way." As to the evidence that CW was on probation for the 2013 assault, the circuit court said that it had "no probative value whatsoever."

During the first day of trial, defense counsel renewed the motion to present evidence that, as a result of the fight at the restaurant, CW was arrested and charged with assaulting Brown and Wife:

[The defense: ]To not be able to do that presumes or gives the jury -- jury does not get the complete story because the incident and the circumstances of the case arise out of the same facts and circumstances. I believe it's important for our defense and as well as the jurors to know that even though Mr. Brown sits here as the accused, there is [sic] cross-complaints.
For example, if we were to use the defense of mutual affray, your Honor, it's a stronger defense if you were to show that she too was charged by the police, your Honor, and she too was arrested, your Honor.[ ] And so we believe that by not allowing us to go into that, to delve into that area, your Honor, restricts the defenses that we may be able to assert in this case.

The circuit court denied the request on the grounds that CW's culpability arising from her actions during the incident was irrelevant:

[The Court: ]This trial deals with the guilt or innocence of Mr. Walter Brown. The jury will be advised that they are to consider this evidence as to him and no one else. To bring in any outside information of another being arrested raises a presumption of guilt of that other person which is not being tried in this case at this time. That's for another court to decide. What is sufficient is the guilt or innocence of the defendant based on the evidence and this indictment and two counts, and so this Court will deny the defense's request to bring in evidence of anyone else's arrest because that's neither here nor there, nor is it the purview of the jury to decide the guilt or innocence of anyone else.

During the second day of the trial, counsel for the defense again renewed its position that the defense should be allowed to question CW regarding the fact that she was charged with assaulting Brown and Wife. Defense counsel argued that the evidence "goes to bias, motive, and interest ... with respect to her testimony." Defense counsel also noted his understanding that the prosecutors had dismissed the case against CW for assaulting Brown two days earlier. The court denied the request to reconsider its ruling after expressing concern about creating a "mini trial[ ] within a trial."

B. Trial, Conviction, Sentence, and New Trial Motion

At trial, CW testified that she and Sister planned to meet Mother at the restaurant. CW testified that she and Sister saw Brown and Wife as they entered, and that he came toward them, grabbed them, and pushed them out of the restaurant's entrance, causing CW to fall. A fight ensued, during which CW said Brown punched, kicked, stepped on, and shook her and Sister, and she pushed, kicked, and punched Brown in defense of herself and Sister. At one point, CW testified, Brown punched her underneath the left jaw area. She denied punching Wife during the altercation. Sister also testified that Brown grabbed her and CW as they entered the restaurant, that he punched CW in the jaw and slammed Sister onto the ground in the ensuing fight, and that she and CW hit Brown in self-defense.

Pursuant to the court's pre-trial order, CW was questioned about two prior incidents of misconduct. She admitted to pleading guilty to third degree assault in the 2013 case involving her daughter, and to pleading guilty to harassment in the 2010 case involving the threats against Mother, although she denied threatening to kill her. She was also questioned about an entry she made on Mother's Facebook page regarding Wife and the February 20, 2013 fight in which she said "bahahahaha fckn silly girl gave birth. Now let's see who will laugh. Talk shit, get hit. I ain't sca[r]e[d].... Let's do it again, me and you round two. Oh wait, round one wasn't finished."

Brown gave a different account of the events with regard to who was the initial aggressor and whether he was the cause of CW's jaw injury. Brown testified that as his family was leaving the restaurant, he saw CW and Sister near the door. He saw that they were angry, and he tried to block them from entering the restaurant and to push them backwards out the door. He testified that CW slipped and fell numerous times, and that the first time she fell, she hit her head on a table outside the restaurant. At one point, Wife told him CW had hit her. He moved closer to Wife to protect her. He testified that CW and Sister punched and scratched him, but he denied ever punching, choking, slamming to the ground, or stomping on CW or Sister. Wife testified that she first saw CW and Sister at the door of the restaurant, punching and scratching Brown. She testified that CW punched her in the face, and that at some point after CW punched her, CW slipped and fell forward, hitting her head on a table. Wife testified that Brown tried to hold back his daughters, but that at no point during the incident did he choke, pick up and slam to the ground, stomp on, or punch them.

Two eyewitnesses and a physician that treated CW after the incident also testified. The security guard who was working at a building directly behind the restaurant testified that he saw Brown hit CW on the left side of her jaw. The security guard was about 65 to 70 feet away at the time of the hit. He testified that he did not see CW attack Brown in any way. The second witness, the manager of the restaurant, testified that around 1:30 p.m., "all of a sudden there was this big commotion" in the restaurant, "and everybody started running outside[,]" so he followed them out and saw Brown attacking CW. He testified that he saw Brown punch CW "in the chin." Both the security guard and the manager testified that they did not see the initial phase of the encounter between Brown and CW.

An emergency room physician testified that she treated CW shortly after the incident at the restaurant. She testified that she conducted multiple CT scans and concluded that CW had suffered a jawbone fracture, somewhere roughly in the left jaw area. CW also had some loose teeth around the jawbone fracture and some scrapes and swelling to her face. The physician did not testify as to a possible cause of the fracture.

At the end of the State's case, the court granted Brown's motion for acquittal on the second count of assault in the third degree. The court found that Sister's testimony was insufficient to prove a prima facie case of third-degree assault against her. The jury found Brown guilty on the first count of assault in the second degree; he was sentenced to four years probation.

Brown moved for a new trial on the basis of alleged perjured testimony by Mother. During a hearing on the new trial motion, defense counsel raised the exclusion of the criminal charges against CW and her probation status as an additional reason to grant a new trial. The circuit court denied the motion.

C. Appeal

Brown appealed the judgment of conviction to the ICA on the basis that the circuit court's refusal to admit the evidence of CW's pending charges and probation status violated his constitutional right to confront the witnesses against him, and that the court's constitutional error was not harmless beyond a reasonable doubt.

The ICA affirmed Brown's conviction. State v. Brown, No. CAAP-15-0000354, 2017 WL 2829280, at *9 (App. June 30, 2017) (mem.). The ICA held that even if the exclusion of the evidence of the charges against CW and her probation status was improper, the error was harmless. Id. at *8. It held that sufficient evidence was presented at trial for the jury to assess CW's credibility, and that she had been subject to "extensive cross-examination ... on subjects including who was the first aggressor, CW's previous convictions for harassment and assault against family members, and her relationship with Brown." Id. at *9. Although the ICA recognized that CW's testimony was important to the prosecution's case, and that there was no other way for the jury to know she had been charged or was on probation at the time of trial, it nonetheless held that "[t]he testimony of three witnesses other than CW to the assault against her as well as the physician establishing the extent of her injuries amounted to a very strong, if not overwhelming, case." Id.

Chief Judge Nakamura dissented. Id. (Nakamura, C.J., dissenting). He concluded that the pending charge against CW at the time of her testimony and the fact that she was on probation "created a potential interest, motive, and bias for the CW to testify falsely that was different in nature and character than revealed by the other evidence permitted by the Circuit Court." Id. He identified that interest as "her own self-interest in avoiding criminal punishment[.]" Id. He further reasoned that "[t]he evidence excluded by the Circuit Court was the only viable means for Brown to impeach the CW with her interest, motive, and bias to shape her testimony to avoid her own criminal punishment." Id. Because the disinterested witnesses to the assault did not observe the entire interaction between Brown and CW, Chief Judge Nakamura was unable to conclude that the decision to exclude the contested evidence was harmless beyond a reasonable doubt. Id. at *10.

Brown filed an application for a writ of certiorari, contending that the ICA erred in concluding that his right to confrontation was not violated by the circuit court's exclusion of the evidence about CW.

II. STANDARD OF REVIEW

A trial court's ruling on the question of whether "proffered evidence is probative of bias, interest or motive is reviewed under the right/wrong standard." Acacio, 140 Hawai'i at 98, 398 P.3d at 687 (quoting State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1220 (1996) ).

III. DISCUSSION

A. The trial court violated Brown's right to confrontation by barring cross-examination as to CW's pending charges arising from the same incident, as well as to her supervised probation status resulting from an earlier assault conviction.

Article I, section 14 of the Hawai'i Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused[.]" See also U.S. Const. amend. VI ; Davis v. Alaska, 415 U.S. 308, 316-317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ("[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination."). "[T]he right to confront a witness is not satisfied simply by any cross-examination, but instead, ... the cross-examination must be sufficient and meaningful." State v. Nofoa, 135 Hawai'i 220, 231, 349 P.3d 327, 338 (2015) (emphases in original). The defendant's right to sufficient and meaningful cross-examination includes the opportunity to show that a witness is unreliable due to bias.

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness."

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105 ). "The credibility of a witness may be attacked by evidence of bias, interest, or motive[,]" HRE Rule 609.1(a), and such evidence "is relevant if it has 'any tendency to support an inference of the witness' disposition or tendency, consciously or unconsciously, to slant testimony one way or the other, from the straight and true.' " State v. Acker, 133 Hawai'i 253, 299, 327 P.3d 931, 977 (2014) (emphasis in original) (quoting State v. Levell, 128 Hawai'i 34, 40, 282 P.3d 576, 582 (2012) ).

Defense counsel was forbidden by the court's order from questioning CW on the charges against her arising from the same incident and the court precluded the defense from introducing evidence that she was on probation for the charge of assault in the third degree. Both matters were relevant to her bias or motive. "[G]iving a defendant 'considerable latitude' during cross-examination of the complaining witness is not sufficient if the defendant is deprived of an opportunity to present evidence about the source of the complaining witness's potential bias or motive." Acacio, 140 Hawai'i at 101, 398 P.3d at 690 (quoting Levell, 128 Hawai'i at 41, 282 P.3d at 583 ).

Exclusion of the criminal charges against CW and the fact that CW was on probation deprived the jury of evidence that she had an interest to shape her testimony against Brown to avoid punishment and to prevent the possible revocation of her probation. The jury thus lacked "sufficient information from which to make an informed appraisal of the complainant's motives and bias" as to her testimony. Levell, 128 Hawai'i at 40, 282 P.3d at 582 (brackets omitted) (quoting State v. Marcos, 106 Hawai'i 116, 121, 102 P.3d 360, 365 (2004) ). In short, Brown was not afforded the cross-examination to which he was constitutionally entitled to confront CW about her motives or bias favoring the prosecution.

Thus, the circuit court erred when it concluded that evidence that CW was arrested and charged with crimes related to the same incident was irrelevant, confusing, and misleading; similarly, the conclusion that evidence of CW's probation had "no probative value whatsoever" was error.

B. The trial court's violation of Brown's right to confrontation was not harmless beyond a reasonable doubt.

Having held that Brown's constitutional right was violated, we next determine whether the constitutional error was harmless beyond a reasonable doubt. In his opening brief, Brown argued that the error was not harmless because, "except for the testimonies of [Brown] and [Wife], there was no other evidence with which to impeach [CW's] testimony" regarding the cause of her jawbone fracture.

A trial court's denial of a defendant's constitutional right to impeach a witness for bias, motive, or interest is subject to the harmless beyond a reasonable doubt standard. Acacio, 140 Hawai'i at 98, 398 P.3d at 687. This standard is applied by "examin[ing] the record and determin[ing] whether there is a reasonable possibility that the error complained of might have contributed to the conviction." Id. Factors determinative of whether a violation of the constitutional right to impeach might have contributed to the conviction include: "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Levell, 128 Hawai'i at 42, 282 P.3d at 584 (quoting Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223 ).

Here, there is a reasonable possibility that the circuit court's constitutional error might have contributed to Brown's conviction. As an eyewitness to the entire event and the complaining witness in the case, CW was the most important witness for the prosecution. She gave a firsthand account of the entire incident, testifying about specific acts that met the elements of assault. Brown was not permitted to cross-examine CW about the criminal charges she faced and her probation status that placed CW in immediate legal jeopardy and possibly gave the State leverage over her testimony. Were she convicted of the third degree assault charge against Wife and had her probation from her previous third degree assault charge been revoked, CW could have been sentenced to up to two years in prison. See HRS §§ 707-712(2), 706-663, 706-625(3), (5) (2014). On the other hand, CW may have believed that providing testimony at trial that Brown was the first aggressor would lessen the likelihood the prosecution would pursue the pending charge against her. Impeachment of such an important witness might have affected the jury's decision as to whether to credit Brown's assertion of self-defense. Thus, notwithstanding the evidence submitted by the State, it cannot be concluded beyond a reasonable doubt that the circuit court's erroneous decision to preclude Brown from impeaching CW for bias, interest, or motive did not contribute to Brown's conviction. The error was not harmless.

The Dissent concludes that the constitutional error was rendered harmless beyond a reasonable doubt by the corroborative testimony of the two eyewitnesses and the defense's "otherwise extensive cross-examination of CW[.]" Dissent 145 Hawai'i at 66, 446 P.3d at 983. Its analysis is similar to that of the ICA, which found that the State presented "a very strong, if not overwhelming, case" that Brown committed assault. Brown, 2017 WL 2829280, at *9. However, the ultimate question is whether the erroneous exclusion of additional evidence could have reasonably affected the jury's verdict.

The two eyewitnesses testified that they did not witness the entire interaction between Brown and CW. The security guard testified that he was 65 to 70 feet away from the fight, and the manager testified that the scene was a "big commotion" and that he ran back inside at one point to call the police. In contrast, Brown and Wife offered testimony that directly contradicted CW's explanation of the cause of injury, contending that she slipped and hit her head on a table. Evidence that cast doubt on CW's credibility may have affected the jury's conclusion as to her description of the events. The jury was deprived of strongly probative evidence relating to its choice between the conflicting accounts of how CW's injury was caused. While CW was cross-examined about her relationship with Brown and Wife and her propensity for violence, the court prevented the defense from eliciting evidence about her interest in avoiding future criminal prosecution and punishment. Nothing in CW's testimony indicated that the State had leverage over her in the form of pending charges or the ability to revoke her probation. And as the Dissent recognizes, "no other witness testified as to CW's misdemeanor probation status or that she had also been charged with assault stemming from the same incident." Dissent at 145 Hawai'i at 67, 446 P.3d at 984. Thus, no other evidence conveyed the degree of CW's possible interest in slanting or falsifying her testimony to gain favor with the prosecution and to avoid immediate legal jeopardy, and accordingly "the jury did not have sufficient information from which to make an informed appraisal of the CW's motive." Acacio, 140 Hawai'i at 101, 398 P.3d at 690. Notwithstanding the State's evidence against Brown, the conclusion cannot be reached beyond a reasonable doubt that the unconstitutional exclusion of evidence about CW's "significant incentive to curry favor with the State[,]" Birano v. State, 143 Hawai'i 163, 192, 426 P.3d 387, 416 (2018), did not contribute to the jury's decision to convict.

IV. CONCLUSION

For the foregoing reasons, we vacate the July 31, 2017 judgment of the ICA and the March 25, 2015 Judgment of Conviction and Probation Sentence of the Circuit Court of the First Circuit, and remand this case to the circuit court for proceedings consistent herewith.

DISSENTING OPINION BY NAKAYAMA, J., IN WHICH RECKTENWALD, C.J., JOINS

Petitioner/Defendant-Appellant Walter Brown (Brown) was convicted by a jury of one count of assault in the second degree. Brown appealed his conviction and sentence to the Intermediate Court of Appeals (ICA). On appeal, he argued that the Circuit Court of the First Circuit (circuit court) violated his constitutional right to confrontation by refusing to allow him to cross-examine the complaining witness (CW) regarding her misdemeanor assault charge arising from the same incident and her misdemeanor probation status. The ICA affirmed.

In vacating the ICA's judgment on appeal and remanding Brown's case to the circuit court, the Majority holds that the circuit court's error in refusing to allow cross-examination of CW on these topics was not harmless beyond a reasonable doubt. Majority at 145 Hawai'i at 62-63, 446 P.3d at 979-80. I respectfully disagree. While it was error for the circuit court to preclude Brown from cross-examining CW regarding her assault charge stemming from the same incident and her probation status, two independent eyewitnesses testified that Brown had punched CW in the jaw. Additionally, Brown was able to cross-examine CW regarding her prior assault and harassment convictions, and thus introduced evidence demonstrating (1) that CW may have been the initial aggressor in the incident involving Brown; and (2) CW's bias, motive and interest to lie about the incident.

Based on the testimony elicited at trial, I cannot conclude that there is a reasonable possibility that the circuit court's refusal to permit cross-examination on the specific issues regarding CW's pending assault charge and her probation status might have contributed to Brown's conviction. Therefore, this error is, in my opinion, harmless beyond a reasonable doubt.

I would affirm the ICA's judgment on appeal, and respectfully dissent.

I. BACKGROUND

Respondent/Plaintiff-Appellee State of Hawai'i (the State) charged Brown with two counts of assault stemming from an altercation between his daughters (CW and Sister) and him in the Beretania Street McDonald's parking lot on February 20, 2013.

Before trial on his assault charges, Brown filed a Notice of Intent to Use Evidence (Notice of Intent) which sought to introduce evidence of CW's other crimes, wrongs, or acts. Brown sought to introduce, inter alia, (1) CW's 2013 harassment charge in an unrelated case; (2) CW's 2010 terroristic threatening charge for punching a screen door of her mother's (Mother) residence and yelling that she was going to kill her, and her subsequent no contest plea to a lesser charge of harassment; (3) CW's arrest and assault charge against Wife and Brown for conduct arising out of the same incident as Brown's assault charges; (4) CW's 2013 abuse of family or household member charge for allegedly striking her eight-year-old daughter's face, and her subsequent guilty plea to a lesser charge of assault; and (5) that CW was currently under misdemeanor probation supervision.

The circuit court held a pretrial hearing to address Brown's Notice of Intent. Because it might demonstrate to the jury that CW was the first aggressor in the assault, the circuit court permitted Brown to introduce the following evidence of CW's prior acts: (1) her 2013 harassment charge in the unrelated case, provided that Brown could prove that CW had been convicted of the charge; (2) her no contest plea to the harassment charge stemming from CW's threats to Mother; and (3) her guilty plea to the assault charge stemming from the incident involving her daughter. The circuit court allowed Brown to introduce two of the three, concluding that introducing all three would be more prejudicial than probative of showing first aggression. With respect to CW's arrest for assault arising from the same incident, the circuit court denied the introduction of that evidence, stating that CW's arrest was "irrelevant to whether or not the State can make its burden of proof as to the material elements as to the defendant." Finally, the circuit court also denied Brown's request to introduce evidence that CW was currently on misdemeanor probation.

At trial, the State called CW to testify as to the events that occurred at the Beretania McDonald's on February 20, 2013. CW testified that on that date, CW and Sister entered the Beretania McDonald's intending to meet Mother to eat. Upon opening the door to the restaurant, CW saw her father, Brown, who looked upset. CW testified that Brown immediately came toward CW and Sister and grabbed them while they were standing by the entrance. CW stated that Brown grabbed her by the neck, choked her, and made it difficult for her to breathe. CW opened the door to the restaurant and because they were going backwards, CW testified that she fell outside the restaurant. CW stated that while she was on the ground, she felt Brown step on her head while he was holding and shaking Sister.

CW tried to push Brown off Sister but was unsuccessful. CW testified that Brown punched her, and then he came after her when she backed away. CW ran to her vehicle in the parking lot, and when she stopped to turn around to see where Brown was, Brown punched her in the jaw. CW stated that she "got punched from the back up" and thought her tooth came out.

On cross-examination, CW stated that she also saw Brown's wife (Wife) with Brown when CW first entered the McDonald's. When asked by defense counsel whether she had punched Wife in the nose, CW responded that she did not.

Pursuant to the circuit court's previous instructions, defense counsel then elicited testimony regarding CW's abuse charge against her daughter and subsequent guilty plea to assault. CW stated that she remembered the incident and her plea. Defense counsel also questioned CW regarding the incident in which she punched and kicked Mother's screen door and yelled at Mother through the door that she was going to kill her. CW acknowledged that she had pleaded no contest to a charge of harassment in that case. Finally, defense counsel questioned CW about a comment CW had posted on Mother's Facebook page regarding the February 20, 2013 incident: "Bahahahaha fckn silly girl gave birth. Now let's see who will laugh. Talk shit, get hit. I ain't scade.... Let's do it again, me and you, round two. Oh wait, round one wasn't finished." CW admitted to writing the post and that "silly girl gave birth" referred to Wife.

Two independent eyewitnesses also testified. First, a security guard who was working at the building directly behind the Beretania McDonald's stated that at 1:30 in the afternoon on February 20, 2013, he was informed that a fight was taking place outside the restaurant. When he arrived at the McDonald's parking lot, the security guard observed Brown and CW fighting and arguing with each other. The security guard stated that the two individuals were getting closer and closer to each other, "and then just as I thought it looked like the guy was going to hit her, he hit her, and it made a really loud pop sound." The security guard noted that the sound was "so loud, I could hear it. That's what surprised me the most." The security guard further stated that when CW tried to catch herself from falling down, Brown hit her on her left side, and then hit her again on her butt or upper thigh. The security guard observed the fight from about 65 to 70 feet away. He did not see CW fight back or attack Brown in any way.

The security guard further testified that at this time, Sister got very upset with Brown, and told Brown "I can't believe you just did that, and you're walking away from her.... You can't just hit a girl like that and walk away." Brown then approached Sister, grabbed her, "and then immediately she was on the ground and he was on top of her." When it looked like Brown was about to hit her, a male driver who was sitting in his vehicle got out of the vehicle and "walked up and pushed [Brown] off [Sister]." Brown then tried to tackle the male driver, and as they were circling each other, the police arrived. The security guard later observed CW holding her jaw and noticed a lot of blood coming out of her mouth.

Additionally, the McDonald's manager on duty at the time of the incident testified that at around 1:30 in the afternoon, there was a big commotion in the front of the restaurant and everybody started running outside. The manager followed. The manager testified that outside, he saw Brown attacking CW and punching her. He stated that CW was "trying to protect herself and at the same time yelling, you know, stop, stop, stop." The manager also noted that he observed a pregnant woman, Wife, who was "verbally abusing" CW. CW verbally responded, and then Brown "kinda grabbed [CW's] neck and punched her in the chin." CW then fell to the ground. The manager testified that at that point, everyone in the area was yelling "stop, stop, stop...." The manager further stated that the "other girl," Sister, was also yelling at Brown to stop. Brown then "went after [Sister]," caught up to her, and began hitting Sister, until another man pushed Brown into the bushes.

Finally, the State called CW's emergency room physician to testify as to the injuries CW sustained. The physician stated that CW suffered "a mandible fracture, which is a jaw fracture." The physician continued, "[i]t was reported as a left jaw fracture somewhere roughly in this area, and her teeth were separated because of the jaw fracture." The physician stated that CW also "had some loose teeth around where the jaw fracture was, and then ... she had things like scrapes and some swelling to her face."

Brown also testified, and recounted a very different set of facts. He stated that while he, Wife, and his children were sitting down to eat at McDonald's, Mother confronted Wife. Brown told Mother to "leave [his] family alone." After Mother further insulted him, she left the restaurant. Brown testified that he and his family then sat down to eat, but Wife told him that they should leave. Brown agreed, picked up the packages of food, and made his way to the entrance of the restaurant.

At that point, CW and Sister entered the restaurant, saw Brown and Wife, and started yelling at Wife. Brown attempted to block them from approaching by backing them out the door. Brown observed CW slip, fall, and hit a table outside the restaurant near the entrance. Brown stated that CW fell and got up numerous times to attempt to pass him.

On cross-examination, Brown testified that when he attempted to force them out of the restaurant, CW and Sister were trying to get past him to attack Wife. Somehow, CW got past Brown and hit Wife. Brown then heard Wife say "[CW] hit me," and as Brown went back to Wife, he saw CW run to the other side of the parking lot. CW then returned to attack both Brown and Wife. She struck Brown in the face, turned around and went to the 'ewa end of the parking lot. Brown followed but never caught up to her.

Instead, Brown noticed that Sister was close to Wife, who had been standing next to Sister's vehicle. Afraid that Sister would hurt Wife, Brown went back to stand by Sister. While he was standing next to Sister and attempting to block Sister's hands from trying to scratch him, Brown testified that a man pushed him into the nearby hedges. Brown stated that he didn't know who the man was or why he wanted to fight Brown. Brown said that he never hit CW, he never punched CW in the jaw, and he never slammed CW or Sister into the ground.

Before closing arguments, the jury was instructed on the elements required to convict Brown of assault in the second degree and the lesser included offense of assault in the third degree. The jury was also instructed on self-defense and defense of others as defenses to assault. The circuit court stated that the State had the burden to prove beyond a reasonable doubt that the force used by Brown was not justified.

The jury convicted Brown of assault in the second degree.

II. DISCUSSION

At oral argument, the State conceded that it was error for the circuit court to refuse to allow evidence of CW's assault charges stemming from the same incident and her probation status. Accordingly, we must decide whether the error was harmless beyond a reasonable doubt. The Majority concludes that the circuit court's error in precluding Brown from cross-examining CW with this evidence was not harmless beyond a reasonable doubt. Majority at 145 Hawai'i at 62-63, 446 P.3d at 979-80.

I respectfully disagree. Here, the corroborative testimony of two independent eyewitnesses who saw and heard Brown punch CW in the jaw and the defense's otherwise extensive cross-examination of CW permitted the jury to evaluate CW's bias, motive and interest to lie about the events that occurred on February 20, 2013. This leads me to conclude that there was no reasonable possibility that the circuit court's error might have contributed to Brown's conviction, and thus the error was harmless beyond a reasonable doubt.

In evaluating whether a denial of a defendant's constitutionally protected opportunity to impeach a witness for bias, motive or interest is harmless, we examine the entire record. State v. Levell, 128 Hawai'i 34, 42, 282 P.3d 576, 584 (2012). A host of factors may be considered, including

the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Id. (citing State v. Balisbisana, 83 Hawai'i 109, 117, 924 P.2d 1215, 1223 (1996) ). It is true that no other witness testified as to CW's misdemeanor probation status or that she had also been charged with assault stemming from the same incident. Accordingly, the testimony the circuit court restricted was not cumulative.

However, on the record before us, it is clear that the prosecution had a strong case that Brown assaulted CW (even if CW could have also assaulted Wife or Brown).

While CW's testimony was certainly important to the prosecution's case, the corroborating testimony from two independent eyewitnesses who clearly saw Brown punch CW in the jaw in the McDonald's parking lot lessens the impact of CW's testimony with respect to that incident.

We have previously concluded that forbidding evidence of a witness's bias or motive is not harmless beyond a reasonable doubt when there is no other evidence to corroborate the complaining witness's story. Levell, 128 Hawai'i at 42, 282 P.3d at 584. In Levell, we concluded that the circuit court's error in not permitting cross-examination of the witness regarding the defendant's accusation that the witness had stolen his credit cards was not harmless beyond a reasonable doubt. Id. But we did so in part because the complaining witness was the only witness that testified for the State. In Levell, "[t]here was no other evidence to directly corroborate Complainant's testimony, and therefore evidence of Complainant's bias or motive to lie would have been particularly helpful in assessing Complainant's credibility." Id. The State's case was "essentially dependent on the credibility of Complainant, its only witness." Id.

We have similarly concluded in other cases that a circuit court's refusal to allow cross-examination of a witness regarding bias, interest or motive is not harmless when that witness's testimony is the only evidence against the defendant. See Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223 ("[CW] was central to the prosecution's case. She was the only witness to testify that Balisbisana had abused her."); State v. Acacio, 140 Hawai'i 92, 102, 398 P.3d 681, 691 (2017) ("The CW's testimony was crucial to the prosecution's case because she was the only eyewitness to Acacio's alleged threat and abuse against her.").

In this case, however, CW was not the only witness to testify to Brown's assault in the McDonald's parking lot. Two independent eyewitnesses corroborated her testimony. First, the security guard testified that Brown punched CW in the jaw. He stated "just as I thought that it looked like [Brown] was going to hit [CW], he hit her, and it made a really loud pop sound." The sound was so loud that the security guard was surprised that he could hear it, even when he was 65 to 70 feet away. The security guard further stated that he later observed CW holding her jaw, and that "there was a lot of blood coming out of it." Additionally, the McDonald's manager testified that he and multiple restaurant customers ran outside to witness the fight between Brown and CW, and that Brown grabbed CW's neck and punched her in the chin. He also stated that CW was "trying to protect herself and also at the same time yelling, you know, stop, stop, stop." The manager stated that bystanders about three to ten feet away from the incident were yelling at Brown to stop.

Accordingly, the record in this case provides additional evidence from two independent eyewitnesses who corroborated CW's testimony that Brown punched her in the jaw. The presence of testimony from other witnesses attesting to Brown's assault constitutes independent evidence that lessens the importance of CW's testimony. Accord State v. Liuafi, 1 Haw. App. 625, 635, 623 P.2d 1271, 1278 (1981) ("The testimonies of the other witnesses ... together with the physical evidence, constitute clear, independent, and overwhelming evidence of Liuafi's guilt....").

Further, the circuit court allowed extensive cross-examination of CW for bias, motive and interest. While the circuit court did not allow Brown to bring up CW's similar assault charge arising from the same incident or her probation status, Brown was able to question CW regarding her prior history of assault charges and convictions and CW's previous negative comments to and regarding Wife, which could have allowed the jury to conclude that CW had been the first aggressor in the incident and that Brown was acting in self-defense. For example, CW admitted that she pleaded guilty to an assault charge arising out of an incident involving her daughter. CW also recalled that she pleaded no contest to harassment when she threatened to kill Mother and kicked the front door of Mother's house. Finally, CW admitted that the Facebook post, in which she wrote "silly girl gave birth.... Talk shit, get hit. I ain't scade.... Let's do it again, me and you, round two. Oh wait, round one wasn't finished[,]" pertained to Wife.

This testimony paints CW in a negative light and provides evidence that could have persuaded a jury that CW had punched Wife and had lied in her testimony. In my view, eliciting additional testimony regarding CW's assault charges from the same incident or her current probation status, where Brown had already introduced evidence that (1) CW had a history of assaulting family members, (2) CW had a reason and motive to assault Wife, and (3) Brown had sustained injuries from the incident, would not have had a reasonable possibility of changing the jury's verdict against Brown.

In order to prove that Brown had committed assault in the second degree, the State was required to prove that he "recklessly cause[d] serious or substantial bodily injury to another." Hawai'i Revised Statutes § 707-711(1)(b) (Supp. 2011). While Brown was adamant that he did not punch CW, two independent eyewitnesses observed him do so. CW's emergency medical physician testified that CW had suffered a jaw injury that loosened several teeth. This indicates to me that the State's assault case against Brown was strong, even without a complete cross-examination of CW.

III. CONCLUSION

Notwithstanding Brown's inability to cross-examine CW regarding her assault charge arising from the same incident or her probation status, the record in this case indicates to me that there was substantial and overwhelming evidence that Brown had committed an assault. Two independent eyewitnesses corroborated CW's testimony and vividly recalled that Brown hit CW multiple times and punched her in the jaw. Extensive cross-examination as to CW's prior conduct, including her prior assault charges and her antipathy towards Wife, painted a negative picture of CW to the jury and went to her bias, motive or interest in lying about whether she had initially punched Wife or assaulted Brown.

After being instructed on self-defense and defense of others, the jury nevertheless convicted Brown of assault. Based on the testimony elicited in this case, I cannot conclude that there is a reasonable possibility that the circuit court's failure to allow cross-examination with respect to other evidence of CW's bias, motive or interest might have contributed to Brown's conviction.

Therefore, I would hold that the circuit court's error was harmless beyond a reasonable doubt, and affirm the ICA's July 31, 2017 judgment on appeal.

      The Honorable Edward H. Kubo, Jr. presided.

      That is, the court allowed introduction of evidence relating to the 2013 harassment charge, the 2010 harassment conviction, and the 2013 third degree assault conviction.

      At trial, the jury was instructed about mutual consent as a defense to assault in the third degree.

      According to Brown's notice of intent, CW was charged with two counts of assault in the third degree for assaulting Brown and Wife shortly after the melee at the restaurant that forms the basis of the present case. According to defense counsel, the State dismissed CW's charge for assault in the third degree against Brown the day before the start of Brown's trial, leaving her with one outstanding charge of assault in the third degree at the time she testified.

      We note that the State conceded at oral argument that "cross-examination on CW's probation status, and her charges -- assault charges stemming from this incident should have been allowed. Not doing so was error." Oral Argument, State v. Brown (SCWC-15-0000354) at 28:11-28:23, http://oaoa.hawaii.gov/jud/oa/18/SCOA_020718_SCWC_15_354.mp3. However, the State contended that this error was harmless because there was "independent evidence to establish the elements of the offense in this case." Oral Argument at 28:27-28:32.

      Per defense counsel, one of the charges against CW had already been dismissed shortly before the Brown's trial.

      The Dissent notes that the security guard testified that he observed "the events immediately preceding the punch" and that CW had not attacked Brown. Dissent at 145 Hawai'i at 68 n.2, 446 P.3d at 985 n.2. However, the security guard did not witness the part of the fight during which, according to Brown's account, CW slipped and hit her head on a table.

      Sister also testified. Her version of events is similar to the security guard's. Sister testified that after Brown had punched jaw, Brown came after Sister, who was hiding by CW's vehicle. Brown then slammed Sister into the ground. Sister stated that Brown only stopped "when the guy from McDonald's took him off of me."

      While the Majority notes that the independent eyewitnesses did not see the entire interaction between Brown and CW, Majority at 145 Hawai'i at 63, 446 P.3d at 980, the security guard was present to observe the events immediately preceding the punch. He testified that a verbal argument between Brown and CW had taken place, and specifically stated that CW had not attacked Brown.