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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAY-2020
10:32 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
JOHN LESLIE GALLAGHER,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 13-1-0972(3))
MAY 15, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
DISSENTING, AND WITH NAKAYAMA, J., DISSENTING
OPINION OF THE COURT BY POLLACK, J.
Under Hawaiʻi Rules of Evidence Rule 403, relevant
evidence may be excluded if its probative value is, inter alia,
substantially outweighed by the danger of unfair prejudice. In
this case, the defendant was charged with criminal property
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damage in the second degree for damaging the complainants’
vehicle. Over the defense’s objections, the circuit court
allowed the State to present evidence during trial of four prior
incidents of aggressive and erratic behavior by the defendant
directed at the complaining witnesses and their home. The
circuit court also permitted the State to adduce evidence of the
fear the complaining witnesses experienced as a result of the
prior incidents and the various countermeasures they undertook
in response to these incidents. The defendant was convicted as
charged, and the conviction was affirmed on appeal.
On review, we conclude that the risk of unfair
prejudice posed by the introduction of the four prior incidents
substantially outweighed their limited probative value. We
therefore vacate the Intermediate Court of Appeals’ judgment on
appeal and the circuit court’s judgment of conviction and
sentence, and the case is remanded to the circuit court for
further proceedings consistent with this opinion.
I. BACKGROUND & TRIAL
On December 30, 2013, John Leslie Gallagher was
charged in the Circuit Court of the Second Circuit (circuit
court) with criminal property damage in the second degree in
violation of Hawaiʻi Revised Statutes (HRS) § 708-821(1)(b)
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(Supp. 2012)1 based on an incident that occurred on September 15,
2013. Gallagher pleaded not guilty to the charge.
Prior to trial, Gallagher moved for “an order
excluding from use at trial testimonial or documentary evidence
relating to any other ‘acts’, bad or otherwise” involving him as
irrelevant and unfairly prejudicial under Hawaiʻi Rules of
Evidence (HRE) Rules 404 and 403. Specifically, Gallagher
sought to preclude “any testimonial or documentary evidence
regarding alleged incidents” on four specified dates between May
and September 2013 involving the two complaining witnesses or
other persons.
Thereafter, the State filed two notices of intent
pursuant to HRE Rules 404(b) and 608(b) stating it would rely on
evidence of four prior incidents of “Harassment,” one incident
of “Harassment By Stalking,” and one incident of “Harassment By
Stalking, Simple Trespass, Criminal Tampering and Disorderly
Conduct” that occurred between March 24 and September 19, 2013.2
1
HRS § 708-821(1)(b) provides in relevant part as follows: “A
person commits the offense of criminal property damage in the second degree
if by means other than fire: . . . . The person intentionally or knowingly
damages the property of another, without the other’s consent, in an amount
exceeding $1,500[.]”
2
The notices collectively indicated that the State intended to
rely upon six incidents, including one that occurred several days after the
events giving rise to the case. During the hearing on the motions in limine,
however, the State informed the court that it did not intend to introduce any
evidence of the last incident at trial. Ultimately, the State elicited
testimony regarding four of the prior incidents.
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The State contended evidence of the prior incidents was relevant
and admissible to demonstrate Gallagher’s “motive, opportunity,
intent, preparation, plan, knowledge, identity, modus operandi,
and/or absence of mistake or accident[,] as well as attacking
his credibility as probative of untruthfulness.”
At a hearing on the pretrial motions,3 the State
contended the sole issue at trial was going to be Gallagher’s
state of mind and his intent to cause the amount of damage to
the complainants’ vehicle that resulted from his actions on the
night in question. The State asserted that evidence of the five
prior incidents would show the conduct underlying the charged
offense was not an isolated event, accident, or mistake and that
the prior incidents culminated in the incident that resulted in
the criminal property damage charge. The court asked the State
to elaborate, and the State responded as follows:
[B]asically what happened over the course of about six or
seven months, this individual, from out of the blue, just
started appearing at our complaining witness’s house,
essentially taking them to the point where they had to get
a protective order against him, installed a video
surveillance system on their house, basically because he
had come around so many times threatening them . . . .
According to the State, it was important for the jury to hear
about the prior incidents to understand Gallagher’s state of
mind when he damaged the complainants’ vehicle.
3
The Honorable Joseph E. Cardoza presided over the circuit court
proceedings in this case.
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In addition to his written motions in limine,
Gallagher orally objected to the introduction of the prior
incidents stated in the State’s notices of intent, arguing that
they were not relevant and were more prejudicial than probative
because there would be no question as to his identity or whether
his actions were the result of an accident or mistake. Evidence
of the prior incidents, Gallagher maintained, did not go to the
elements that the State needed to prove or to any defenses, and
it did not fall within an exception to the rule against
character evidence. Additionally, Gallagher argued that the
prior incidents were dissimilar to the charged offense because
they did not involve property damage. At the conclusion of the
hearing, the circuit court denied the defense’s motion to
exclude the incidents, holding without any elaboration that the
five prior incidents fell within the exceptions to HRE Rule
404(b). The court did not exclude any evidence regarding the
prior incidents. The only matters excluded were opinions
expressed by a complaining witness to the police regarding
Gallagher’s mental instability and statements that Gallagher had
made that raised concerns about his mental health, both of which
the State had no objection to excluding.
A jury trial commenced in August 2014. In its opening
statement, the State informed the jury that the evidence would
show that on September 15, 2013, Gallagher charged up the
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complainants’ driveway and kicked their vehicle multiple times
on the passenger’s side and then on the driver’s side. The
State related that the jury would hear and see that Gallagher’s
kicks left numerous dents on the complainants’ vehicle. The
State indicated that the jury was “probably going to hear the
defense agree with pretty much 99 percent of what I just told
you.”
The State also told the jury that the night of the
incident was not the first time the complainants had seen
Gallagher. The defense’s objection to this statement was
overruled. The State proceeded to inform the jury that
Gallagher had become an issue in the complainants’ lives over
the course of the six months preceding the incident, requiring
the complainants to call the police numerous times, file
numerous police reports, tint the windows of their home, and
install an alarm system and a video surveillance system because
of their fear. The prosecutor then told the jury that the
Normans had actually sought a protective order against
Gallagher. Defense counsel’s objection to this statement was
sustained, and the statement was stricken.
In the defense’s opening statement, counsel stated
that it was not disputed that Gallagher went to the
complainants’ residence on September 15, 2013, and kicked their
vehicle. Defense counsel told the jury that the only issue in
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dispute was the amount of damage that Gallagher intended to
cause. The defense submitted that the evidence would show that
Gallagher did not intend to cause more than $1,500 in damage and
that he was not aware and did not believe that he would damage
the vehicle to that extent.
Following opening statements, the State presented the
testimony of one of the complainants, Jessica Norman
(Ms. Norman). Ms. Norman testified that Gallagher first came
into her life on March 24, 2013, which prompted Gallagher to
renew his objection on HRE Rules 404(b) and 403 grounds. A
bench conference ensued, and Gallagher argued that even if the
prior incidents were relevant, the court was required to
determine whether the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice.
Gallagher maintained that identification was not at issue in the
case, the prior incidents did not relate to Gallagher’s state of
mind as to knowing the amount of the damages, the prior
incidents involved different facts, their introduction would
confuse the issues and mislead the jury, and there was other
evidence regarding the damages.
[DEFENSE COUNSEL]: Judge, I would just object. I know this
issue was raised at motions in limine, but I would just
make an objection under 404(b). Your Honor, even assuming
that these prior incidents are relevant, I believe the
Court still has to determine whether there’s unfair
prejudice to my client and . . . whether the need for it
substantially outweighs any danger of unfair prejudice.
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I would submit, you know, in this case,
identification is not an issue. The prior incidents do not
go to state of mind as far as knowing the amount of the
damage. The facts are different, and . . . it would
confuse the issue, mislead the jury.
And . . . there’s other evidence that can go towards
the damages[.]
Gallagher indicated that he would like to register a running
objection under HRE Rule 404(b) regarding any prior incidents.
In response, the State contended that the “escalating series of
events” were “highly probative” of Gallagher’s mindset and his
intent on the night of the incident.
The court overruled Gallagher’s objections. The court
reasoned that without evidence of the prior incidents, there was
no context or explanation for the charged conduct because the
parties were not otherwise acquaintances. Further, stated the
court, the prior incidents were highly probative of Gallagher’s
intent to cause the kind of damage that occurred, and in any
event the State had the burden of proving each element of the
offense beyond a reasonable doubt regardless of whether some of
them were conceded in the defense’s opening statement. The
court concluded that based on these reasons and the “entire 401,
403, 404 analysis” it would allow in the evidence of the prior
incidents. The court did not indicate that it would not allow
defense counsel’s request for a continuing objection.
Following the bench conference, the circuit court
issued a cautionary instruction to the jury regarding the
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evidence of the prior incidents. The court instructed the jury
that the evidence could be considered only on the issue of the
defendant’s motive, opportunity, intent, preparation, or plan to
commit the charged offense, and as to the identity of the person
who may have committed the charged offense. The court further
instructed the jury not to consider the evidence for any other
purpose or to conclude that the defendant was a person of bad
character and therefore must have committed the charged offense.
Ms. Norman then testified in detail about four of her
prior interactions with Gallagher. Ms. Norman described her
first encounter with Gallagher on March 24, 2013, when she saw
him walking toward her home. When she opened the front door and
asked if he needed help with anything, Gallagher started
screaming at her, saying: “You’re not going to have your job by
next week. You hear me. You’re not going to have your job.”
Ms. Norman testified that she immediately closed the door,
explaining that she was “incredibly confused and scared,” and
that she thereafter filed a police report.
Ms. Norman then described an incident that occurred on
May 9, 2013, testifying that she looked out her window after she
heard yelling from the street. She witnessed Gallagher in a
confrontation with one of her neighbors, and when Gallagher saw
her through the window, he started screaming obscenities at her
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and ran toward the house. Ms. Norman explained that she called
the police, but Gallagher was gone by the time they showed up.
Ms. Norman testified that she next saw Gallagher when
she was again looking out her window on August 16, 2013. She
stated that Gallagher was parked in his car in front of her
driveway, and she witnessed him shake his fist at the house and
give it “the finger” before speeding off.
Ms. Norman lastly recounted an incident that took
place on September 4, 2013. She again saw Gallagher parked
blocking her driveway, and this time she witnessed him make
erratic movements as if he were going to ram his vehicle into
the cars parked on the property. Gallagher again sped off,
Ms. Norman testified, and he was gone by the time she called the
police.
Ms. Norman stated that, in total, she filed six police
reports against Gallagher from March 24 through September 15,
2013. These prior incidents terrified her because Gallagher
appeared to show up more frequently and become more aggressive
as time progressed. Ms. Norman testified that she did not know
what Gallagher was capable of, and that she and her husband were
scared for their lives. As a result of Gallagher’s conduct,
they tinted the windows on the ground floor of their home and
installed an alarm system and a surveillance system with seven
different cameras around the house.
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As to the incident underlying the charge, Ms. Norman
testified that on September 15, 2013, she went out on her lānai
after she heard a car nearby and her dog began to bark. She saw
Gallagher running at full speed toward the house screaming
obscenities at her. He then started “wailing on the car,”
kicking and punching it approximately fourteen to sixteen times.
Ms. Norman described the dents in the car as “massive,” about
four or five inches deep, and stated that Gallagher’s kicks and
punches were so loud that she thought he was using a baseball
bat. Gallagher had also knocked the top of the back of the
truck bed using his fist. Ms. Norman explained that, after he
finished striking the car, Gallagher walked away, “flipped the
house the bird,” and then got in his car and left. During
Ms. Norman’s testimony, two CDs containing video surveillance
footage of the incident were admitted into evidence and
published to the jury; Ms. Norman provided a narration of the
events shown in the footage while the video was played for the
jury.
The State then called as a witness Garron Norman (Mr.
Norman), Ms. Norman’s husband, who testified that he came to
know Gallagher “[f]rom a series of escalating events that were
taking place at [their] residence.” Because of these events
that were happening throughout the summer and early spring, he
and Ms. Norman were in a heightened state of alert on September
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15, 2013. Mr. Norman recounted the events of that evening,
which coincided with the testimony that had been given by
Ms. Norman.
Mr. Norman testified that after the incident, he saw
multiple dents all along the front quarter panels to the rear of
the vehicle around the tailgate and up the driver’s side of the
vehicle. A series of photographs were admitted into evidence
depicting the damage to the pickup, and Mr. Norman pointed out
and described the dents, relating that there were probably about
seven to eight “significant dents,” approximately two to four
inches deep, that were caused by Gallagher.
Gordon Yoshizawa, the owner of an auto repair shop,
testified that he personally inspected the Normans’ vehicle the
day after the incident and estimated the cost of repairs to be
$4,583.04. Additionally, Matthew Little, an automotive damage
specialist for the Normans’ insurance company, testified that
based upon his inspection the estimated repair cost for the
damage done to the vehicle was $3,036.26.4
After the State rested, Gallagher testified that in
the early evening of September 15, 2013, he was at the house of
a friend who lived next door to the Normans. He walked to the
4
Mr. Norman stated that the Normans received an insurance payment
of $2,536.26 for the damage, which reflected a $500 deductible.
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Normans’ house, lost his composure, kicked the passenger side of
the Normans’ truck three times, and then kicked between the rear
wheel and the door on the other side of the truck a few times.
According to Gallagher, he was 5 feet 9 inches tall, weighed 160
pounds, and wore a pair of cross-trainers on the night of the
incident. He stated he used the inside of his foot and
described the kicks as “more like a soccer kick.” He said that
the incident lasted for a total of ten seconds and that he only
“put a couple scuff marks on the truck.” Gallagher testified
that he had a degree in automotive technology, the damage he
caused amounted to only about $300 or $400, and a “detail job to
buff it out” or a “wax job” would have taken care of the damage
to the vehicle. Gallagher further stated that he did not intend
to do extensive damage and disputed that his kicks left dents in
the truck that amounted to $1,500 worth of damage.
During the reading of the jury instructions, the
circuit court provided a general instruction on the use of
evidence admitted for a limited purpose. The court then
instructed the jury that the evidence of Gallagher’s prior
crimes or bad acts was to be considered only on the issue of his
motive, opportunity, intent, preparation, or identity and not to
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conclude that he was a person of bad character and therefore
must have committed the charged offense.5
In its closing argument, the State indicated that the
case boiled down to whether Gallagher intentionally or knowingly
caused $1,500 worth of damage to the Normans’ vehicle. The
State argued that the evidence against Gallagher, including the
prior acts Gallagher committed, was “very overwhelming.” The
evidence of the prior incidents, the State explained, was
presented to show Gallagher’s intent and the Normans’ perception
of Gallagher’s state of mind. The State asserted that what
occurred was not an isolated incident but instead was an
escalating series of events that took place over six months.
The jury was reminded by the State that it had heard from the
Normans about the number of times Gallagher came into their
lives, and from the Normans’ perspective he was becoming more
dangerous each time he showed up. The State highlighted the
several countermeasures the Normans had taken such as installing
a surveillance system and an alarm system and tinting the
windows of their house. This was not an isolated incident, the
State reiterated, and Gallagher was demonstrating increasing
levels of anger and hostility. Gallagher intended to do as much
5
The court also instructed the jury on the elements of the
included offenses of criminal property damage in the third and fourth
degrees.
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damage as he physically could on the night in question, the
State argued, and his actions were “premeditated,” “cold,” and
“calculated.”
Defense counsel argued in closing argument that the
only disputed issue in the case concerned Gallagher’s intent
regarding the amount of the damage he caused to the Normans’
truck. While Gallagher admitted to kicking the Normans’
vehicle, counsel maintained, it was not enough that Gallagher
kicked the vehicle. The State also had to prove beyond a
reasonable doubt that Gallagher acted with the intent or
knowledge that he would cause over $1,500 in damage. Counsel
argued that the truck already had scratches and dents and that
Gallagher could not have intended to cause over $1,500 worth of
damage, adding that the damage he did cause was only cosmetic in
nature.
The jury convicted Gallagher as charged. Gallagher
was sentenced to a five-year term of imprisonment consecutive to
a term he was currently serving. Gallagher appealed from the
circuit court’s October 31, 2014 judgment of conviction and
sentence.
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II. ICA PROCEEDINGS
On appeal, Gallagher asserted that the evidence of the
four prior incidents of his misconduct introduced at trial was
irrelevant and far more prejudicial than probative.6 Gallagher
contended that the circuit court’s reasoning that the prior
incidents would provide context was not one of the exceptions
for introducing character evidence and that the evidence of the
prior incidents was not relevant to any disputed issue.
Gallagher submitted that the video footage and his own testimony
eliminated any dispute as to his general intent to damage the
property and there was no question as to identity, motive,
opportunity, intent, plan, or preparation.
Additionally, Gallagher argued that the potential for
unfair prejudice from the admission of the prior incidents
substantially outweighed any limited probative value they may
have had. Gallagher contended that the need for such evidence
was minimal because the State presented the testimony of the two
complaining witnesses, photographs of the damage to the vehicle,
and video footage that showed the incident from beginning to
end. The evidence of the prior incidents “probably roused the
jury to hostility” against him and most likely elicited sympathy
6
Gallagher raised other issues to the ICA, but these issues are
not raised on certiorari review. They are therefore not addressed.
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for the Normans based on their prior experiences with him,
Gallagher asserted, and thus such evidence was highly
prejudicial.
The State responded that evidence of the prior
incidents was relevant under HRE Rule 401 to provide context for
the incident underlying the charge, which made it more probable
that Gallagher intentionally or knowingly caused more than
$1,500 worth of damage to the Normans’ vehicle. The State
submitted that the evidence was also properly admitted under HRE
Rule 404(b) to prove that Gallagher intended to cause the amount
of damage required for criminal property damage in the second
degree and that his conduct was not an accident or mistake.
And, the State asserted that the evidence of the prior incidents
was admissible under the relevant factors of HRE Rule 403,
including that there was a substantial need for the evidence,
there was no alternative means of showing context, and the
evidence was not likely to rouse the jury to hostility against
Gallagher.
On December 20, 2017, the ICA issued a summary
disposition order.7 Citing HRE Rule 401, the ICA determined that
Gallagher was incorrect to assume that evidence is only relevant
7
The ICA’s summary disposition order can be found at State v.
Gallagher, No. CAAP-XX-XXXXXXX, 2017 WL 6507180 (App. Dec. 20, 2017) (SDO).
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to prove matters in dispute. The State has the burden to prove
beyond a reasonable doubt each element of the offense, the ICA
stated, and Gallagher did not offer a stipulation as to any of
the elements of the charged offense. In any event, the ICA
added, Gallagher’s intent was in dispute. Based on its review
of the record, which included the giving of limiting
instructions to the jury regarding the evidence of the prior
incidents, the ICA concluded that the circuit court did not
abuse its discretion in admitting such evidence.
Gallagher challenges the ICA’s holding on certiorari
review, arguing that the unfair prejudice caused by the
introduction of the four prior incidents substantially
outweighed its minimal probative value and had a tendency to
suggest a decision based on an improper basis.
III. STANDARDS OF REVIEW
“[A] trial court’s balancing of the probative value of
prior bad act evidence against the prejudicial effect of such
evidence under HRE Rule 403 (1993) is reviewed for abuse of
discretion.” State v. Cordeiro, 99 Hawaiʻi 390, 404, 56 P.3d
692, 706 (2002) (quoting State v. Torres, 85 Hawaiʻi 417, 421,
945 P.2d 849, 853 (App. 1997)). When such an abuse of
discretion is identified, it is grounds to vacate a conviction
unless it is harmless beyond a reasonable doubt. State v.
Kazanas, 138 Hawaiʻi 23, 43,
375 P.3d 1261, 1281 (2016).
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IV. DISCUSSION
A. The Circuit Court Abused Its Discretion in Its Application of
HRE Rule 403.
Over strong objections by the defense, the circuit
court allowed the admission of four prior incidents that
involved aggressive, obscenity-laden, and angry misconduct by
Gallagher toward the Normans. The State and its witnesses
repeatedly characterized the conduct as escalating. The
testimony included the specific details of each incident in
which Gallagher had harassed the family. Ms. Norman testified
that Gallagher’s actions during the previous incidents terrified
her and prompted the family to take a range of protective
countermeasures, including filing six different police reports,
tinting the windows in the garage and on the ground floor of
their home, and installing an alarm and surveillance system.
Under HRE Rule 403, 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.” In weighing the
probative value versus the prejudicial effect of prior bad acts
admitted for one of the purposes authorized under HRE Rule
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404(b) (Supp. 2012),8 we have stated that a number of factors
must be considered, including
the strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the
interval of time that has elapsed between the crimes, the
need for the evidence, the efficacy of alternative proof,
and the degree to which the evidence probably will rouse
the jury to overmastering hostility.
State v. Behrendt, 124 Hawaiʻi 90, 106, 237 P.3d 1156, 1172
(2010) (quoting State v. Renon,
73 Haw. 23, 38,
828 P.2d 1266,
1273 (1992)).
While these factors provide guidance as to the
elements to consider, the court’s underlying HRE Rule 403
evaluation remains whether the probative value of the evidence
of prior acts is substantially outweighed by its potential for
unfair prejudice. Each factor must therefore be considered in
light of the purpose for which the evidence was offered--here,
8
HRE Rule 404(b) provides as follows:
(b) 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 action in conformity
therewith. It may, however, be admissible where such
evidence is probative of another fact that is of
consequence to the determination of the action, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, modus operandi, or absence of mistake
or accident. In criminal cases, the proponent of evidence
to be offered under this subsection shall provide
reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of
the date, location, and general nature of any such evidence
it intends to introduce at trial.
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to prove Gallagher’s state of mind with respect to the extent of
the damage caused to the Normans’ vehicle.
As to the first factor, the strength of the evidence
as to the commission of the other conduct, Ms. Norman testified
that she witnessed firsthand Gallagher’s behavior on the prior
occasions, and Mr. Norman confirmed that there had been a
“series of escalating events” involving Gallagher. Because
Gallagher does not deny that the prior incidents occurred and
submitted no contrary evidence, the first factor does not weigh
against admittance.
With regard to the second and third factors--the
similarities and interval of time between the crimes--Gallagher
acknowledges the time that elapsed between the prior incidents
and the one underlying the criminal charge in this case was
arguably not long. But he argues that the prior incidents were
not similar to the underlying incident, as they did not involve
property damage.
Here, Gallagher’s identity, actions, and general
intent to do damage were not disputed.9 The prior incidents were
9
Justice Nakayama’s dissent argues that “every element of the
charged offense was ‘at issue’ for the purposes of” admitting the evidence of
prior incidents under HRE Rules 404(b) and 403. Nakayama, J., Dissenting at
12 [hereinafter Dissent]. While it is true that the State must prove all
elements of an offense, other bad acts are not admissible to prove an element
when the element is not disputed in the evidence in the case. See, e.g.,
State v. Calara, 132 Hawaiʻi 391, 402-04, 322 P.3d 931, 942-44 (2014) (holding
that two prior incidents of misconduct should have been excluded under HRE
(continued . . .)
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therefore relevant only to demonstrate the degree of Gallagher’s
hostility toward the Normans and thereby increase the likelihood
that he intended to do significant damage to their property.
(. . . continued)
Rule 404(b) because intent and lack of consent were not disputed); State v.
Veikoso, 126 Hawaiʻi 267, 276-77, 270 P.3d 997, 1006-07 (2011) (concluding
that evidence involving another complaining witness would not be admissible
to prove identity because identity was not disputed); State v. Castro,
69
Haw. 633, 645,
756 P.2d 1033, 1042 (1988) (holding that, when “the identity
of the perpetrator of the crimes was not denied, [] the admission of the
other crimes evidence as proof of modus operandi,” including plan and
preparation, “cannot be justified”). Here, the element of identity and
Gallagher’s conduct were not only conceded by the defense in its opening
statement and acknowledged by the State’s opening statement, but the evidence
of the conduct was recorded in a video and testified to by two eyewitnesses.
The dissent’s contention that an unstipulated element “like
identity” in this case renders the element in dispute for purposes of HRE
Rule 404(b) analysis, dissent at 13 n.5, is contrary to both our caselaw,
Calara, 132 Hawaiʻi at 402-04, 322 P.3d at 942-44; Veikoso, 126 Hawaiʻi at
276-77,
270 P.3d at 1006-07; Castro,
69 Haw. at 645,
756 P.2d at 1042, and to
Professor Addison Bowman’s evidence treatise, which we have cited for
guidance in this area. Calara, 132 Hawaiʻi at 403,
322 P.3d at 943. As
stated by Professor Bowman, “Assessment of the dispute factor thus requires
consideration of the precise defensive claims being made in the case.”
Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3[3][E], at 4-62
(2018-2019 ed.). Here, Gallagher did not dispute he was the person causing
the property damage and, in fact, admitted that he was.
Nevertheless, the dissent maintains that the prosecutor cannot
know what a defendant will say, and Gallagher may have taken the stand and
denied being the person who kicked the car. Dissent at 13-14 n.5. This type
of justification would lead to the wholesale admission of propensity
evidence. As Professor Bowman has aptly observed:
Identity is always a “fact of consequence” in a criminal
case because it characterizes the elemental proposition
that the accused (not someone else) committed the crime.
That being so, a proponent’s assertion that evidence of
another crime proves identity is not meaningful unless
accompanied by some other theory that heightens probative
value and takes the matter beyond mere propensity. This is
because the direct inferential link between prior crime and
identity, without an intermediate inference such as motive,
plan, or signature, can only be understood in terms of
“action in conformity therewith” on the present occasion.
In other words, “identity,” without more, is likely
propensity in sheep’s clothing.
Bowman, supra, § 404–3[2][F], at 4-55.
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However, the closeness in time and alleged similarity between
the prior acts and the incident giving rise to this case is at
most only marginally probative of this point.
Ms. Norman testified that the prior incidents occurred
at her residence over a six-month period starting on March 24,
2013, with the final incident occurring eleven days before the
incident in this case. She further stated that the incidents
involved Gallagher yelling obscenities at her, gesturing angrily
toward her and her house, and making erratic movements using his
car. The incidents shared some similarities in that they all
occurred at the Normans’ residence and involved hostile actions
by Gallagher towards the Normans, but none of the prior
incidents involved destruction of property. By contrast, the
underlying incident in this case involved Gallagher causing
property damage to the Normans’ vehicle. Accordingly, the prior
incidents, having not involved physical damage, had no relation
to Gallagher’s awareness or knowledge of the extent of damage
his actions would cause in the underlying incident, and they
were therefore not probative of this issue.10
10
The state of mind requirement for criminal property damage may
alternately be established by demonstrating that Gallagher had knowledge or
awareness that his actions would cause damage in excess of $1,500. See HRS
§ 708-821(1)(b).
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Further, when prior misconduct is similar to the
current offense and is offered to confirm identity or
voluntariness by establishing a common methodology or scheme, a
close connection in time and nature is highly probative only
because it increases the likelihood that the same actor
committed both instances of misconduct. See, e.g., State v.
Acker, 133 Hawaiʻi 253, 277, 327 P.3d 931, 955 (2014) (stating
that prior incidents where defendants also robbed lone men, left
them at remote locations, and escaped in their victims’ vehicles
were admissible to show common plan and lack of coercion); State
v. Austin,
70 Haw. 300, 307,
769 P.2d 1098, 1102 (1989) (holding
that the similarity between a defendant’s earlier drug dealing
and the drug dealing offense with which the defendant was
charged was extremely relevant to prove both a plan and a common
scheme). However, a close proximity in time and nature between
the prior misconduct and the charged offense may also increase
the likelihood that a jury will consider the previous conduct to
conclude that the defendant has a propensity for committing such
acts, which is a prohibited inference. See HRE Rule 404(b)
(“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.”); State v. Murray, 116 Hawaiʻi 3, 20,
169
P.3d 955, 972 (2007) (holding that “the risk of tainting the
jury verdict with evidence of prior [misconduct] is of especial
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concern when the current charge is for the same crime of which
the defendant was previously” implicated).
Thus, when the evidence is not offered for a purpose
for which similarity in time and nature is probative, a close
unity between the acts potentially weighs against admitting the
evidence when it increases the chances of unfair prejudice. See
State v. Castro, 69 Haw. 633, 645,
756 P.2d 1033, 1042 (1988)
(holding that because “the identity of the perpetrator of the
crimes was not denied, [] the admission of the other crimes
evidence as proof of modus operandi cannot be justified”). In
this case, similarity as to location of all the prior incidents
and as involving the same complainants, and the closeness in
time of the prior incidents to the underlying offense,
exacerbated the unfair prejudice as it increased the likelihood
that the jury would conclude that Gallagher had a propensity for
committing such acts while adding virtually no probative value
as to the issue of Gallagher’s intent to cause the amount of
damage caused. Accordingly, because of the lack of probative
value of the prior misconduct evidence and its accompanying risk
of unfair prejudice, these factors--similarities of crimes and
interval of time between them--do not weigh in favor of
admission of the prior acts of misconduct.
The final three factors in our evaluation concern the
need for the evidence and, relatedly, the availability of
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alternative evidence on the same point, as well as the
likelihood that the evidence will inspire ill-will in the jury
toward the defendant. Castro, 69 Haw. at 644,
756 P.2d at 1041.
As discussed, the only disputed issue at trial to
which the prior incidents were relevant was the extent of the
damage Gallagher intended to cause or of his awareness of
causing such damage. The occurrence of the prior incidents and
their escalating nature were only marginally probative insofar
as they demonstrated the extent of Gallagher’s ongoing hostility
toward the Normans and his general intention to cause damage to
their property during the underlying incident. However,
extensive surrounding details of the incidents had no bearing on
this issue. Ms. Norman’s testimony included a range of highly
prejudicial information that was lacking in probative value as
to Gallagher’s state of mind, including the Normans’ repeated
calling of police regarding the incidents; their filing of six
police reports involving harassment; the numerous protective
measures installed in their home, including the tinting of
windows and the installation of a surveillance system with seven
video cameras and an alarm system; and--perhaps most
prejudicial--the recounting of the Normans’ ongoing fear of
Gallagher and Ms. Norman’s statement that the prior incidents
terrorized her.
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The circuit court concluded that “practically
speaking, there aren’t any other means or alternatives that
would permit the explanation or background to what was going on,
on the evening in question.” However, even assuming that there
was minimal probative value in admission of the prior
misconduct, the State could have elicited a much less elaborate
recounting of the prior incidents, greatly limiting testimony to
the aspects of the incidents that ostensibly bore on Gallagher’s
state of mind. Mr. Norman, for example, testified that he came
to know Gallagher “[f]rom a series of escalating events that
were taking place at our residence.” This testimony essentially
encapsulated the relevant aspects of the previous incidents in
that it demonstrated that Gallagher had repeated, escalating,
hostile interactions with the Normans.
It is noted that the explanation concerning the prior
interactions between the Normans and Gallagher did not require
specific wording. The incidents could have been characterized
by the prosecutor’s questions as unwanted encounters, unprompted
altercations, or any number of other terms. Regardless of the
phrasing, testimony significantly more narrow could have been
elicited to capture the contended relevance of the prior
incidents while carrying none of the unfair prejudice that arose
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from the specific descriptions of Gallagher’s behavior and the
fear and countermeasures described by the Normans.11
Further, again assuming some probativeness of the
prior misconduct, the number of prior incidents should have been
limited to the minimum sufficient to obtain the asserted
probative value the conduct offered. Instead, four prior
incidents were admitted, despite the lack of probative value of
the multiple instances of prior misconduct. See State v.
Kazanas, 138 Hawaiʻi 23, 43, 375 P.3d 1261, 1281 (2016) (holding
it was an abuse of discretion to admit evidence of past abuse of
household member when “[a]lternative evidence of [a prior]
assault incident, which the State was allowed to present, was
11
The dissenting opinion of Justice Nakayama notes the obvious
proposition that “neither the trial court nor the appellate court should
dictate the exact wording of a complaining witness’s testimony or reframe how
the State presents its case.” Dissent at 18 n.7. However, as the dissent
acknowledges, “it is the trial court’s duty to exclude unduly prejudicial
testimony[.]” Id. Thus, in comporting with the court’s mandate, the
prosecutor should have elicited the evidence in a manner that would not have
resulted in the admission of unduly prejudicial evidence. We recently
observed in State v. Williams, a case in which the trial court had excluded
evidence of the involvement of Child Welfare Services (CWS), that when the
State chose to call a detective and social worker to testify, “the State
should have been careful not to elicit evidence” regarding involvement of CWS
and “should not have asked [the doctor] whether she had alerted authorities
to elicit her response that [CWS] had been contacted.” 146 Hawaiʻi 62, 73,
456 P.3d 135, 146 (2020); cf. State v. Miyasaki,
62 Haw. 269, 284 n.15,
614
P.2d 915, 924 n.15 (1980) (“The prosecutor is obviously in a position to
tailor his questions, consciously or otherwise, on the basis of his knowledge
of the defendant’s prior testimony and can do so without any overt reference
to the testimony given under immunity.”); Am. Bar Ass’n, Criminal Justice
Standards for the Prosecution Function § 3-6.6(d) (4th ed. 2017) (“The
prosecutor should not bring to the attention of the trier of fact matters
that the prosecutor knows to be inadmissible, whether by offering or
displaying inadmissible evidence, asking legally objectionable questions, or
making impermissible comments or arguments.”).
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more efficacious on the issue” and the evidence likely “rouse[d]
the jury to overmastering hostility against” the defendant). As
our decision in Kazanas recognizes, when there is a demonstrable
need to introduce evidence of prior bad acts, admission of such
evidence is limited and circumscribed by that necessity. 138
Hawaiʻi at 43, 375 P.3d at 1281.
In this case, any need to provide context as to
Gallagher’s intent did not make it necessary to introduce
evidence of the details of each of the four prior incidents, the
Normans’ extreme fear, or the extensive countermeasures taken.
Nor was the admission of such evidence needed to establish that
the charged incident was not a “random” event or to show intent
as to the monetary amount of the damage caused, as the
dissenting opinions maintain. See Dissent at 17-18, 22;
Recktenwald, C.J., Dissenting at 4 [hereinafter C.J. Dissent].
The dissenting opinions also argue that the need for
the evidence demonstrates the probative value of the prior
incidents because it was the only evidence available to show
Gallagher’s intent to seriously damage the vehicle. Dissent at
20; C.J. Dissent at 2.12 The evidence at trial refutes this
12
Professor Bowman has aptly observed in his evidence treatise that
the intent inferences of HRE Rule 404(b) require critical examination:
(continued . . .)
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contention. Ms. Norman testified at trial that Gallagher hit
the car approximately fourteen to sixteen times, described the
dents in the car as “massive,” and stated Gallagher’s kicks and
punches were so loud she thought he was using a baseball bat.
Also presented were Mr. Norman’s observations of the damage,
video evidence showing Gallagher as he caused the damage with an
accompanying narrative by Ms. Norman, photographs depicting the
damage, and the testimonies of Yoshizawa and Little, who
assessed the value of the damage to the truck. All of this
evidence was not only used to show Gallagher’s intent, but it
was significantly more probative of his intent on the night he
caused the damage than Ms. Norman’s observations of Gallagher’s
prior conduct in the preceding weeks and months that did not
involve property damage.13
(. . . continued)
Because mens rea is an element of the prosecution’s case-in-chief in
most criminal cases, the intent inferences of rule 404(b) require
analytical rigor. . . .
Analytical rigor is required because nearly all crimes contain a
mens rea element and the intent inference, arguably applicable whenever
the prior crime is of the same type, could easily swallow the character
exclusion. The key to analysis of criminal intent is a careful
application of the need factor[.]
Bowman, supra, § 404-3[2][G], at 4-56 (emphases added).
13
Justice Nakayama’s dissent argues that the extensive evidence in
this case was ineffective to show Gallagher’s intent because he denied
kicking the vehicle hard or many times and intending to cause more than
$1,500 worth of damage. Dissent at 22. To reach this conclusion, the
dissent summarily discounts the Normans’ eyewitness testimony of Gallagher’s
actions during the incident, their subsequent observation of the damage to
the vehicle, the video recording of the incident introduced into evidence and
(continued . . .)
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Thus, the evidence adduced at trial in this case
demonstrates there was little need, and even less probativeness,
for the detailed testimony about each of the prior incidents,
the safety measures taken by the Normans, and the fearful
reactions by the Normans to Gallagher’s conduct because
alternative methods of proof were equally efficacious and less
unfairly prejudicial. These factors, the need for the evidence
and the availability of alternative evidence on the same point
thus weigh strongly against the testimony’s admissibility.
As to the final HRE Rule 403 factor, the likelihood
that the evidence will inspire ill-will in the jury toward the
defendant, the number of prior incidents and the involved
circumstances had a high potential to “rouse the jury to
overmastering hostility” against Gallagher. Behrendt, 124
Hawaiʻi at 106, 237 P.3d at 1172 (quoting Renon,
73 Haw. at 38,
828 P.2d at 1273). The jury heard detailed testimony from
Ms. Norman regarding Gallagher’s erratic behavior on prior
occasions, which consisted of angry gestures and profane
language toward her. Ms. Norman also testified that the prior
(. . . continued)
observed by the jury, and the testimony of the State’s two expert witnesses
as to the damage. If the alternative evidence in this case was held to be
insufficient to address the purported need to show an intent inference, then
the effect of such a precedent would be to “swallow the character exclusion.”
Bowman, supra, § 404-3[2][G], at 4-56.
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incidents terrified her, that she filed six police reports
against Gallagher, and that she and Mr. Norman took measures--
such as tinting windows of their home and installing
surveillance and alarm systems--in response to Gallagher’s prior
harassment. The testimony was virtually certain to elicit from
the jury strong sympathy for the Normans and animus toward
Gallagher for the fear and unwarranted disruption Gallagher’s
ongoing behavior had caused in the Normans’ lives--and
Ms. Norman in particular.14
This extremely prejudicial effect was likely
exacerbated by the State’s focus on the past incidents in its
opening statement and closing argument. The State repeatedly
14
Justice Nakayama’s dissent dismisses the unfairly prejudicial
effect of this evidence by drawing an inapt comparison to our decision in
Behrendt. See Dissent at 24-25. In that case, we concluded the prior bad
acts involved conduct that “was of the same general type” as the alleged
crime and therefore unlikely to rouse the jury to overmastering hostility.
Behrendt, 124 Hawaiʻi at 107, 237 P.3d at 1173. In contrast, none of the
previous incidents here involved property damage--the crime for which
Gallagher was charged in this case--but rather obscene language and gestures,
which communicated to the jury, as the dissent describes, “an escalating
pattern of extreme aggression toward a specific couple.” Dissent at 17. The
dissimilar prior misconduct in this case plainly “carried with it the
potential to rouse the jury to overmastering hostility against” Gallagher and
thus violated HRE Rule 403. Kazanas, 138 Hawaiʻi at 43,
375 P.3d at 1281
(concluding that evidence of the defendant’s prior physical acts were not
similar to the acts alleged in that case and created the potential of
overmastering hostility towards the defendant, and thus the trial court
abused its discretion in performing the HRE 403 balancing test).
Additionally, the prior misconduct in Behrendt was admitted to
show the defendant’s development of “a relationship of trust and control”
over the minor, and to explain both the delayed reporting of the sexual abuse
and when the abuse began. Behrendt, 124 Hawaiʻi at 107-08, 237 P.3d at 1173-
74. The dissent thus draws an incongruous comparison of the circumstances in
Behrendt to those in this case and does not properly consider the
availability of alternative evidence to prove the matter for which the
misconduct evidence was offered in the two cases. See Dissent at 24-25.
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emphasized that “[t]his was not an isolated incident” and
focused on the extensive countermeasures the Normans had taken
in response to the prior events, expressly stating that it had
introduced this evidence to show the Normans’ perception of
Gallagher. The State argued that Gallagher “was becoming more
dangerous each time he showed up,” seeming to encourage the jury
to consider whether convicting Gallagher would prevent him from
causing more harm. The possible future threat Gallagher posed
was also irrelevant to whether the elements of criminal property
damage in the second degree were met by Gallagher’s conduct.
This factor therefore also weighs heavily against admittance of
the prior incidents.
Justice Nakayama’s dissent places much reliance on the
ability of the limiting instructions given by the court to cure
the potential for the jury’s improper use of the evidence of
prior bad acts because “it will be presumed that the jury
adhered to the circuit court’s instruction.” See Dissent at 19
(quoting State v. Kassebeer, 118 Hawaiʻi 493, 519, 193 P.3d 409,
435 (2008)). However, the ability to cure potential misuse of
the evidence with a limiting instruction presupposes that the
court correctly instructed the jury as to the evidence’s proper
use.
The requirement to issue a legally correct limiting
instruction derives from “the trial courts . . . duty and
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ultimate responsibility to insure that juries are properly
instructed on issues of criminal liability.” State v. Adviento,
132 Hawaiʻi 123, 137, 319 P.3d 1131, 1145 (2014) (citation
omitted). This responsibility is of such importance that it
rests upon the court even when a misstatement of law is the
result of an improper argument of counsel to the jury. State v.
Espiritu, 117 Hawaiʻi 127, 143,
176 P.3d 885, 901 (2008) (“[T]he
failure to correct misstatements of law by a prosecutor may
result in reversal of a defendant’s conviction.”); State v.
Basham, 132 Hawaiʻi 97, 111,
319 P.3d 1105, 1119 (2014) (holding
that a prosecutor’s misstatement of the law was not cured where
no specific curative instruction was given relating to the
misstatement that was given). Similarly, a court’s limiting
instruction to the jury is also ineffective when it incorrectly
instructs the jury about the limited use of admitted evidence.
As provided by HRE Rule 105 (1993), “When evidence which is
admissible . . . for one purpose but not admissible . . . for
another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury
accordingly.” (Emphasis added.)
This court recently addressed the importance of
providing a proper limiting instruction to the jury. In State
v. Lavoie, the trial court ruled that prior acts of abuse were
admissible to rebut the defendant’s penal responsibility and
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extreme mental or emotional disturbance defenses, but the
court’s limiting instruction informed the jury that the evidence
could be considered on the defendant’s intent to commit the
offenses.15 State v. Lavoie, 145 Hawaiʻi 409, 428-29, 453 P.3d
229, 248-49 (2019). We held that the instruction was an
incorrect statement of the issues on which the trial court had
ruled the prior bad acts were relevant, as it allowed the jury
to consider the prior bad acts for a purpose other than that for
which they had been admitted. Id. at 429-30,
453 P.3d at 249-
50. Thus, we determined that the trial court had improperly
instructed the jury on the use of the prior misconduct evidence.
Id.16
In this case, Gallagher duly requested a limiting
instruction, and the court was required to “restrict the
evidence to its proper scope.” Instead, the court informed the
jury that Gallagher’s prior acts could be considered in
determining “the issue of the Defendant’s motive to commit the
offense charged, opportunity to commit the offense charged,
. . . preparation to commit the offense charged, plan to commit
15
The trial court in Lavoie, as in this case, read the limiting
instruction multiple times to the jury during the course of the trial.
Lavoie, 145 Hawaiʻi at 429, 453 P.3d at 249.
16
We concluded that it was unnecessary to determine whether the
limiting instruction was “plainly erroneous” in light of our disposition of
other issues in the case. Lavoie, 145 Hawaiʻi at 429 n.36, 453 P.3d at 249
n.36.
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the offense charged, and identity of the person who may have or
allegedly committed the offense charged.” This instruction,
given twice, was plainly incorrect.
The prior incidents should not have been considered by
the jury for Gallagher’s motive, opportunity, preparation, or
plan because Gallagher’s identity as the person who committed
the charged offense was not in dispute. See Castro, 69 Haw. at
645,
756 P.2d at 1042 (when “the identity of the perpetrator of
the crimes was not denied, [] the admission of the other crimes
evidence as proof of modus operandi,” including plan and
preparation, “cannot be justified”). Instead of curing or
limiting any potential misuse of the evidence, the court’s
“limiting” instruction expansively and improperly allowed the
jury to consider the prior bad acts in order to prove, for
example, that Gallagher had a plan to damage the car, that these
prior acts were part of his preparation to commit the crime
charged, and that the prior incidents of misconduct related to
Gallagher’s motive for the offense.17 See Lavoie, 145 Hawaiʻi at
17
Justice Nakayama’s dissent fails to recognize the substantial
risk of the jury misapplying the prior misconduct evidence as a result of the
court’s flawed limiting instruction--hypothesizing that the jury considered
the evidence only for issues not in dispute--and thus concludes that the
instruction was harmless. Dissent at 19-20 n.9. But it is precisely because
the limiting instruction failed to restrict consideration of the evidence to
the purpose for which it was admitted while specifically allowing the jury to
consider the misconduct evidence for issues not relevant to the charge, such
as plan, preparation, and motive to commit the charged offense, that the
prejudice to Gallagher from the prior misconduct evidence was exacerbated.
(continued . . .)
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430 n.39, 453 P.3d at 250 n.39 (trial court erred by not
tailoring the limiting instructions to the specific matters for
which the prior bad acts were deemed relevant).
Not only were plan, preparation, and motive not
elements of the crime, but as Gallagher’s counsel argued to the
court during the motions in limine and at trial, because
identification was also not in issue, the introduction of the
prior incidents would confuse and mislead the jury. It was
incumbent upon the court to issue a limiting instruction that
properly instructed the jury as to the legitimate uses of the
prior incidents after the court admitted the misconduct
evidence, particularly in light of its great potential for
misapplication by the jury. See HRE Rule 105 (requiring the
court, when requested, to restrict admitted evidence to its
proper scope). We have repeatedly emphasized that it is the
trial court’s duty to properly instruct the jury on the
applicable law, and that once instructional error is
demonstrated, the judgment will be vacated if the erroneous
instruction was not harmless beyond a reasonable doubt. See,
(. . . continued)
Castro, 69 Haw. at 645–46, 756 P.2d at 1042 (holding there was “no [] basis
to consider the evidence admissible under the rubric of ‘preparation’” or
plan, and “the potential for unfair prejudice being generated by the evidence
was far greater than its value in establishing facts of consequence to the
determination of the case”).
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e.g., State v. Taylor, 130 Hawaiʻi 196, 204-08, 307 P.3d 1142,
1150-54 (2013); State v. Kikuta, 125 Hawaiʻi 78, 95,
253 P.3d
639, 656 (2011); State v. Stenger, 122 Hawaiʻi 271, 281,
226 P.3d
441, 451 (2010). Thus, the dissent’s reliance on the court’s
limiting instruction, see Dissent at 19, is misplaced because it
improperly instructed the jury that the evidence of bad acts
could be considered in determining Gallagher’s motive,
opportunity, preparation, or plan to commit the offense charged.
Upon hearing the evidence of the prior incidents in
this case, the jury likely “prejudge[d]” Gallagher based on “a
bad general record” of interactions with the Normans and
“den[ied] him a fair opportunity to defend against” the specific
charge of criminal property damage in the second degree.
Castro, 69 Haw. at 645,
756 P.2d at 1042 (quoting Michelson v.
United States,
335 U.S. 469, 476 (1948)); accord Kazanas, 138
Hawaiʻi at 43,
375 P.3d at 1281 (holding that the improper
admission of a prior domestic abuse offense against a vulnerable
victim could have roused the jury to overmastering hostility
against the defendant). “On balance, the potential for unfair
prejudice being generated by the evidence was far greater than
its value in establishing facts of consequence to the
determination of the case.” Castro,
69 Haw. at 645-46,
756 P.2d
at 1042. Thus, the circuit court abused its discretion in
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finding that the prejudicial effect of the prior incidents did
not substantially outweigh their probative value.
Recognizing that the admission of the extensive
details pertaining to the prior incidents was “highly
prejudicial” and clearly inadmissible, the Chief Justice’s
dissent argues that Gallagher failed to preserve his objection
to this evidence and thus “waived” an objection to its
introduction. C.J. Dissent at 6-7. The basis for this flawed
contention is that Gallagher did not object to what the Chief
Justice’s dissent calls “impact testimony” as to the four prior
incidents.18
In this case, Gallagher objected to the admission of
the evidence regarding the four prior incidents five separate
times: in the written motions in limine, during the hearing on
the motions in limine and in opposition to the State’s notices
of intent, in the State’s opening statement, and during
Ms. Norman’s testimony when she was about to testify regarding
18
The Chief Justice’s dissent identifies the “impact testimony” as
including
the Normans’ repeated calling of police regarding the incidents; their
filing of six police reports involving harassment; the numerous
protective measures installed in their home, including the tinting of
windows and the installation of a surveillance system with seven video
cameras and an alarm system; and – perhaps most prejudicial – the
recounting of the Normans’ ongoing fear of Gallagher and Ms. Norman’s
statement that the prior incidents terrorized her.
C.J. Dissent at 6.
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the prior incidents. Nonetheless, the “impact testimony” theory
faults the specificity of Gallagher’s multiple objections,
positing an artificial distinction between an objection relating
to conduct and one relating to the results of that same conduct.
Under this theory, Gallagher waived his objection to the “impact
testimony” because, while he objected to the introduction of
evidence of his actions in the various incidents, he did not
specify that he was also objecting to the reactions of the
Normans to his actions. C.J. Dissent at 6-15.
However, the very substance of Gallagher’s objections
clearly indicates that Gallagher’s objections were not
restricted only to his conduct during the prior incidents. In
Gallagher’s written motions in limine, he requested an order
excluding “testimonial or documentary” evidence “relating to any
other ‘acts’, bad or otherwise involving the defendant” and
specifically “any” such evidence “regarding alleged incidents
involving the Complaining Witnesses and/or other person” on the
four dates. (Emphases added.) This objection manifestly
included the evidence characterized by the Chief Justice’s
dissent as “impact testimony” (e.g., the Normans’ repeated
calling of police regarding the incidents; their filing of six
police reports involving harassment; Ms. Norman’s statement that
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the prior incidents terrorized her), as the evidence was
“relating to” and “regarding” the prior incidents.19
The “impact testimony” theory is further refuted by
the very nature of the prior incidents that the State sought to
introduce, which the State identified in its notices of intent
as harassment or harassment by stalking incidents. These
offenses, as they pertain to this case, requires the victim to
“reasonably believe[]” that the actor intends to cause bodily
injury to the victim or damage to their property. See HRS
§§ 711-1106(1)(a), (f) (2014), 711-1106.5 (2014). Thus, by
definition and by their inherent nature, the underlying conduct
of these offenses directly involved “impact” upon Ms. Norman,
particularly her fear that directly resulted from Gallagher’s
actions. Therefore, Gallagher’s objections to the prior
incidents listed in the State’s notices of intent because the
incidents were irrelevant and unduly prejudicial included the
reactions of the Normans that related to or involved the
reported harassment.
The State in fact expressly noted in the pretrial
hearing that it intended to show “an escalating series of
19
Indeed, had the court granted Gallagher’s motion to preclude any
evidence regarding the prior incidents, under the analysis of the Chief
Justice’s dissent, the State would nevertheless have been allowed to elicit
“impact testimony” from Ms. Norman, such as her reporting of the six
incidents to the police and that the prior incidents terrorized her.
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events” and that it would seek to elicit evidence regarding the
harassment incidents, including the threating nature of
Gallagher’s visits and the resulting extensive countermeasures
the Normans undertook.
[COUNSEL]: . . . . [Gallagher] just started appearing at
our complaining witness’s house, essentially taking them to
the point where they had to get a protective order against
him, installed a video surveillance system on their house,
basically because he had come around so many times
threatening them[.]
It is clear that testimony surrounding the incidents that the
State sought to introduce included the results of Gallagher’s
threatening behavior, which at a minimum had “tak[en] [the
Normans] to the point where they had to . . . install[] a video
surveillance system.”20 There is no question that the State
correctly concluded that the circuit court had ruled that
Ms. Norman could testify as to her reactions during and to the
20
The Chief Justice’s dissent points to other statements made by
the prosecutor during the motions in limine hearing to support its position
that the prior misconduct sought to be admitted by the prosecutor only
pertained to Gallagher’s actions and not the results of his actions upon the
Normans. However, even in the description of the incidents that the dissent
relies upon, the prosecutor recounted to the court that Ms. Norman “observes
the defendant outside of her house again being aggressive, yelling
profanities at her,” that Ms. Norman “reports harassment,” “reports again to
the police that this is the same individual,” and “files a police report.”
Additionally, in the prosecutor’s written notices of intent, the incidents
were identified as four incidents of harassment and two of harassment by
stalking. It is unmistakably clear that the prosecutor sought to introduce
not only actions by Gallagher in the incidents but the Normans’ reactions to
his conduct, including the fear they engendered, the numerous police reports
filed, and the protective measure cited by the prosecutor. If the prosecutor
had intended otherwise, as the Chief Justice’s dissent maintains, its
admission would have minimized Gallagher’s conduct by considering his actions
as something separate from their effects on the Normans.
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incidents since her reactions prompted the phone calls to
police, the filing of police reports, and the necessity for the
video surveillance system.21 And there is also no question that
Gallagher’s objections to the evidence “regarding” or “relating”
to the prior incidents likewise sought to exclude this
testimony.
Indeed, the illogicality of distinguishing between
objections to the conduct and the impact of that conduct has its
own implications. As the Chief Justice’s dissent aptly notes,
the State’s notices of intent did not expressly advise that it
intended to introduce the resulting “impact” occasioned by the
harassment incidents, and it is partially for this reason that
the dissent concludes that Gallagher’s objections to these
incidents were ineffectual in preserving objections to this
evidence. See C.J. Dissent at 9. Yet, it is clear that the
prosecutor intended to and did, in fact, elicit Ms. Norman’s
“impact testimony.” Thus, under the Chief Justice’s analysis,
the State engaged in prosecutorial misconduct by failing to
provide reasonable notice of its intent to adduce “impact”
evidence of Gallagher’s “other crimes, wrongs, or acts,” which
falls squarely within HRE Rule 404(b). See HRE Rule 404(b) (“In
21
The State’s understanding of the trial court’s ruling is
abundantly clear from its opening statement when it provided a wholesale
description of the prior incidents, inclusive of their resulting impacts.
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criminal cases, the proponent of evidence to be offered under
this subsection shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the date, location, and general nature of
any such evidence it intends to introduce at trial.”); State v.
Underwood, 142 Hawaiʻi 317, 325 n.12, 418 P.3d 658, 666 n.12
(2018). Thus, under the Chief Justice’s analysis, we would be
compelled to find that the prosecutor’s misconduct in failing to
provide notice of its intention to adduce “impact evidence” was
“highly prejudicial” and deprived Gallagher of a fair trial.
It is noted that the “impact testimony theory” was
never advocated by the State at trial or raised on appeal, is
contrary to the approach our courts have long applied, and is
not part of our evidence law. Additionally, the artificial
distinction between actions and their effects would create
difficult problems for counsel and the court in its application.
Prosecutors and defense attorneys--and the courts in their
rulings--would be required to dissect the series of events in
any misconduct incident to distinguish between the actions of
the defendant and the effects of those actions, parceling out
such matters as the victim’s reactions to the conduct, the
resulting fear or injuries from the conduct, and defensive
responses taken during the incident. We thus reject the “impact
testimony” theory propounded by the Chief Justice’s dissent.
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In summary, it is clear that Gallagher properly
preserved his objection to the testimonial evidence regarding
the prior incidents, including the unduly prejudicial testimony
of the extensive surrounding details elicited from Ms. Norman.22
Finally, the Chief Justice’s dissent acknowledges the
HRE Rule 404(b) principle that “whether or not the proffer
survives the [HRE] rule 403 balance may well depend on whether
22
It is noted that this court has previously rejected the “waiver”
analysis that the Chief Justice’s dissent advocates in an analogous context.
In State v. Schnabel, the petitioner sought to prevent the State from
eliciting evidence of petitioner’s juvenile proceedings, arguing that the
evidence was not relevant and that its probative value was substantially
outweighed by the risk of prejudice. 127 Hawaiʻi 432, 457–58, 279 P.3d 1237,
1262–63 (2012). We held that the circuit court had erred in allowing the
evidence to be introduced because HRS § 571-84(h) barred the introduction of
such evidence, and further concluded that petitioner had not waived the
argument by failing to specify the statute in its objection. As we explained
in Schnabel,
“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 Hawaiʻi 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 Hawaiʻi 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.
Id. at 458, 279 P.3d at 1263 (alterations in original). As stated above,
Gallagher clearly informed the court that he sought to preclude “any
testimonial or documentary evidence regarding the alleged incidents” and
repeatedly objected to the State’s introduction of the incidents as
irrelevant and unduly prejudicial. Even assuming Gallagher’s objections were
not specific enough to include the Normans’ reactions to his conduct, which
they were, it should have been obvious to the court that Gallagher’s
objections were not limited to his conduct during the incidents, but rather
they included “any” testimony “regarding” or “relating” to the prior
incidents.
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or not the matter is in dispute[, which requires] consideration
of the precise defensive claims being made in the case.” C.J.
Dissent at 4 (alterations in original) (quoting Addison M.
Bowman, Hawaii Rules of Evidence Manual § 404-3[3][D], at 4-60
(2016-2017 ed.)). Both dissents, however, contend that because
a juror submitted a question regarding Gallagher’s identity,
that question essentially demonstrated his identity was
disputed, which in turn rendered Gallagher’s prior conduct as
“relevant and admissible.” C.J. Dissent at 5.23 In their
efforts to portray identity as a disputed issue that did not
exist at trial, the dissents seek to establish and apply a new
legal principle that juror questions submitted during trial can
be utilized to evaluate the validity of evidentiary rulings.
This approach is fundamentally flawed.
Under the dissents’ theory, a juror’s question that
comes before other witnesses are called to testify on the
“disputed” matter or before other physical evidence is
introduced may be determinative of the admissibility of HRE Rule
404(b) evidence. The juror question relied upon by the
23
Like Justice Nakayama’s dissent, the Chief Justice’s dissent
points to the fact that because Gallagher did not stipulate to the elements
of the offense, the State’s burden of proof provided a basis for admission of
the HRE Rule 404(b) misconduct evidence. C.J. Dissent at 4. The contention
that an unstipulated element renders the element in dispute for purposes of
HRE Rule 404(b) analysis is contrary to our caselaw, conflicts with settled
evidentiary principles set forth in Professor Addison Bowman’s treatise, and
would effectively nullify the restrictions of HRE Rule 404(b). See supra
note 9.
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dissents, which occurred at the conclusion of Ms. Norman’s
testimony, was the following: “Can the Defendant be positively
identified that it is really him?” C.J. Dissent at 5; see
Dissent at 14 n.5. However, even if consideration of jury
questions were permissible to review evidentiary rulings, the
obvious problem with the dissents’ reliance on this question to
show a disputed issue of identity is that the question was posed
prior to Mr. Norman’s testimony and prior to the defense case
when Gallagher testified to his actions during the incident. In
Mr. Norman’s subsequent testimony, he identified Gallagher in
court, described Gallagher’s movements during the night of the
incident, and stated that Gallagher caused the damage to the
vehicle depicted in photographs published to the jury. In
Gallagher’s testimony, he unequivocally testified that he was
the person who had kicked the vehicle.
The issue of identify was unquestionably not disputed
at trial, and it did not become disputed as a result of a juror
question about the certainty of a witness’ identification that
occurred before evidence in the case was concluded. Yet, under
the dissents’ hypothesis, the substance of questions posed by
jurors is a factor to be considered when determining questions
of the admissibility of evidence under HRE Rule 404(b). This
rationale merely reflects the absence of a legally valid reason
given by the dissents for the admission of the prior misconduct
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evidence. And absurdly, a juror’s question that comes before
other witnesses are called to testify on the “disputed” matter
or before other physical evidence is introduced may be
determinative of the admissibility of HRE Rule 404(b) evidence.24
Under this approach, the State would benefit from a prosecutor’s
deficient direct examination that results in juror questions to
clarify a witness’ testimony, which then incongruously provides
a basis for admission of misconduct evidence.
It is noted that the novel approach of the dissenting
opinions, that an appellate court may use a juror question to
review the legal propriety of an evidentiary trial ruling (and
perhaps other rulings as well), was neither argued nor raised by
the State. But even assuming that legal principles permitted
juror questions to be used to support an evidentiary ruling
(which they emphatically do not), by the same logic, juror
questions could also be used to show that a prior evidentiary
ruling was erroneous.25 Trial judges would then be placed in the
24
The Chief Justice’s dissent asserts agreement with this opinion
that juror questions do not determine the admissibility of evidence under HRE
Rule 404(b). But, because it is undisputed that the evidence as to identity
was not contested, the juror question remains the only basis the dissents
point to for admission of the misconduct evidence. As stated, the absence of
a stipulation does not make an undisputed element of an offense disputed, nor
does it provide a vehicle to circumvent our settled law on HRE Rule 404(b).
See authorities and caselaw discussed supra note 9.
25
Indeed, one juror question asked, “Was this the first time the
defendant caused property damage against the Normans?” Applying the
dissents’ reasoning, this question would firmly support Gallagher’s
(continued . . .)
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position of having their evidentiary rulings upended by the
substance of questions submitted by jurors. Consequently, a
trial court would need to be ready to reconsider its prior
evidentiary rulings based on jury questions, and appellate
courts would be required to evaluate both the initial
evidentiary ruling of the trial court and its response to a
juror question as it relates to the earlier ruling. This
underscores the problematic nature of the proposition advocated
by the dissents.
In summary, the reliance by the dissents on the juror
question regarding “identity” is flawed because the evidence at
trial unquestionably demonstrated that identity was not in
dispute, under well-settled legal principles the admissibility
of HRE Rule 404(b) evidence is not supported or refuted by the
substance of a juror question, and even assuming such a
principle existed in our law, neither the State’s nor the
defense’s evidence had been completed at the time the question
was posed.
(. . . continued)
contention that because none of the prior incidents involved property damage,
they should have been excluded as having virtually no probative value to the
only issue in this case--Gallagher’s intent regarding the amount of property
damage caused to the Normans’ vehicle--and thus their admission violated HRE
Rule 403.
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B. The Circuit Court’s Error Was Not Harmless.
“In applying the harmless beyond a reasonable doubt
standard[,] the court is required to examine the record and
determine whether there is a reasonable possibility that the
error complained of might have contributed to the conviction.”
State v. Mundon, 121 Hawaiʻi 339, 368, 219 P.3d 1126, 1155 (2009)
(alterations in original) (quoting State v. Balisbisana, 83
Hawaiʻi 109, 114,
924 P.2d 1215, 1220 (1996)).
This is not a case “[w]here there is a wealth of
overwhelming and compelling evidence tending to show” beyond a
reasonable doubt that Gallagher intended or knew that his
actions would cause over $1,500 in damage to the Normans’
property. State v. Rivera, 62 Haw. 120, 128,
612 P.2d 526, 532
(1980). Although the repair estimates presented by the State
may initially suggest that it was manifest that the damage
exceeded $1,500, the amount of divergence between the estimated
amounts demonstrates the difficulty of objectively gauging the
cost of automotive repairs. Yoshizawa, the mechanic who
testified for the State, asserted that the repairs would cost
$4,583.04. In contrast, Little, an automotive damage specialist
for the Normans’ insurance company, estimated the damage at
$3,036.26--$1546.78 less than Yoshizawa. If the estimates of
two trained specialists varied to such a degree, it can hardly
be said beyond a reasonable doubt that Gallagher was aware the
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damage he was causing was likely to exceed $1,500 simply from
viewing it as it occurred.
The State’s other evidence on the issue consisted
primarily of visual depictions of the incident and its aftermath
and testimony of the Normans’ perception of the event. The
State introduced two video recordings that showed Gallagher
running up to and flailing at the Normans’ vehicle without clear
purpose or direction. The State also presented the testimony of
Mr. Norman, who testified that he saw multiple dents on the
vehicle after the incident on September 15, 2013, and identified
a series of photographs that depicted the damage to the vehicle
that was allegedly caused by Gallagher. The State published the
photographs to the jury and entered them into evidence; they do
not appear to clearly depict extreme damage and show that the
truck had many preexisting scratches and scuff marks.
In contrast, Gallagher testified that he had kicked
the truck with only the inside of his foot and that the incident
lasted a total of only ten seconds. Gallagher said that he was
5 feet 9 inches tall and weighed 160 pounds and that he was
wearing a pair of cross-trainers during the incident. He
indicated that he had only “put a couple scuff marks on the
truck,” which would have amounted to $300 or $400 in damage,
requiring only a “detail job to buff it out” or a “wax job” to
repair. Gallagher stated that he did not intend to do extensive
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damage to the vehicle. Given this balance of evidence, the
jury’s determination essentially turned on whether they credited
Gallagher’s testimony regarding the extent of the damage he
intended to cause and was aware he was causing, and this
assessment could have been colored by the dramatic details of
the prior incidents.
Further, the prejudicial testimony may have led the
jury to decide the case on considerations completely independent
of the charged offense. The jury may have viewed the entire
course of Gallagher’s conduct as a continuing campaign of
harassment against the Normans that they could end by convicting
him. And the jurors may have decided the case based not on the
amount of damage Gallagher intended to cause during the charged
incident, but rather a desire to relieve the Normans of the
ongoing hardship of constantly dealing with Gallagher’s
misconduct toward them and the extreme fear that it caused them.
“Unfair prejudice ‘means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily,
an emotional one.’” Kaeo v. Davis, 68 Haw. 447, 454,
719 P.2d
387, 392 (1986) (quoting Advisory Committee’s Note to Federal
Rules of Evidence 403); see HRE Rule 403 cmt. (specifying that a
form of unfair prejudice is the evidence’s “potential for
engendering” the jury’s emotions, such as “hostility[] or
sympathy”). Because we do not conclude that the wrongfully
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admitted testimony did not color the jury’s perception as to
whether the elements of the offense were met or lead the jury to
decide the case on a basis unrelated to those elements, there is
a reasonable possibility that the error contributed to
Gallagher’s conviction. The error was therefore not harmless
beyond a reasonable doubt.
V. CONCLUSION
Based upon the foregoing, we vacate the ICA’s judgment
on appeal, vacate the circuit court’s judgment of conviction and
sentence, and remand the case for further proceedings consistent
with this opinion.
Cynthia A. Kagiwada /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Peter A. Hanano
for respondent /s/ Michael D. Wilson
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