IN THE SUPREME COURT OF THE STATE OF HAWAI`I





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STATE OF HAWAI`I, Plaintiff-Appellee, v. MICHAEL WAYNE

ORTIZ, Defendant-Appellant





NO. 21971





MOTION FOR RECONSIDERATION

AND ORDER OF AMENDMENT



(CR. NO. 96-279)





SEPTEMBER 17, 1999





MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.





The plaintiff-appellee State of Hawaii's motion for reconsideration, filed on September 7, 1999, is hereby granted for purposes of clarification. The opinion of the court, filed August 16, 1999, is hereby amended as follows:

1. Section III.B of the opinion is deleted in its entirety.

2. The following new Section III.B is substituted in place of the deleted Section III.B:

B. The Circuit Court Erred In Admitting The Entirety Of Jardine's Transcribed And Taped Interviews Into Evidence.



Ortiz argues that the circuit court erred in admitting both Jardine's transcribed interview in its entirety and the tapes containing Jardine's statements to Detective Aurello. Specifically, Ortiz contends that Jardine's transcribed interview and the taped statements were admitted in their entirety in violation of Hawai`i Rules of Evidence (HRE) Rule 613(b) (1993), see supra note 9, and 802.1(1) (1993).(1) We agree.

1. The transcribed interview

The circuit court permitted the prosecution to introduce Jardine's transcribed interview into evidence on the ground that the document, in its entirety, constituted a witness' "statement" for purposes of HRE Rule 613(b). We note, however, that the information contained in Jardine's transcribed interview went beyond the scope of the questions posed to Jardine regarding the exhibit. We agree with Professor Bowman that, "[w]ere the price of cross-examination concerning prior inconsistent statements to be the contemporaneous admission of the entire . . . written statements, [HRE R]ule 613(b) would in effect be largely nullified." Addison M. Bowman, Hawai`i Rules of Evidence Manual § 106-2 at 43 (2d ed. 1998) (emphasis added); cf. State v. Rodoussakis, 511 S.E.2d 469, 484-85 (W. Va. 1998) (holding that the trial court correctly refused to admit entirety of a videotape -- and instead instructed counsel to play only those portions of the videotape that were relevant to specific questions he had asked the witness on cross-examination -- because, inter alia, the entire videotape was not an inconsistent statement).

With respect to "prior inconsistencies" contained in Jardine's transcribed interview, the prosecution questioned Jardine at trial regarding the following: whether Jardine left Ortiz's house with Ortiz on July 3, 1996; whether Ortiz's young son was in the car; whether Ortiz drove the car; where Ortiz parked the car; whether Ortiz was with Jardine when they left various house; whether Ortiz's girlfriend had warned Ortiz and Jardine that the police were looking for two men; whether Ortiz and Michael dumped "things" in Worswick's bushes; and whether Jardine had lied to Detective Aurello. The prosecution did not question Jardine, however, as to what Ortiz carried out of Masulit's and Johnson's houses, who first entered Johnson's house, or what Ortiz did when he saw the police -- information that was contained in Jardine's transcribed interview and that constituted significant elements of his "statement." See HRE Rule 613. Accordingly, we cannot agree with the circuit court's conclusion that Jardine's transcribed interview was properly admitted as a single "statement" for purposes of HRE Rule 613(b),(2) and we hold that the circuit court erred in admitting the transcribed interview in its entirety.

2. The tapes

As was the case with respect to Jardine's transcribed interview, the circuit court admitted the tape recordings of Jardine's July 3, 1996 interview with Detective Aurello, pursuant to HRE Rule 613(b), on the ground that it constituted a "statement." However, the record reflects that the prosecution did not actually use the tapes to impeach Jardine. The tapes would only have been admissible pursuant to HRE Rule 613 if they were evidence of a "prior inconsistent statement." The prosecution did not offer the contents of the tapes, however, as "inconsistencies." In fact, the prosecution asked Jardine only one question regarding the contents of the tapes: "But didn't you tell Officer Aurello when he interviewed you that night and taped you with his cassette tape that you had been staying with Michael Ortiz for about a month?" Jardine's full recounting of the alleged theft as recorded on the tapes -- from Ortiz's driving of the car to Ortiz's walking out of Masulit's and Johnson's houses with their property -- could not properly be bootstrapped into evidence pursuant to HRE Rule 613 by way of a single question.

As above, we note that, where the information in a non-party witness' out-of-court statement goes beyond the scope of direct or cross-examination, that information must be redacted before the rest of the statement may be admitted. Accordingly, we hold that the circuit court erred in admitting the entirety of the tapes into evidence.

3. Footnote fifteen (15), appearing at the bottom of page 24 of the original opinion of the court, filed August 16, 1999, is deleted in its entirety.

The Clerk of the Court is directed to incorporate the foregoing amendments into the original opinion of the court and take all necessary steps to notify the publishing agencies of these amendments.







Diane A. Noda, Deputy

Prosecuting Attorney,

for the plaintiff-

appellee State of Hawai`i

on the motion



1. HRE Rule 802.1 provides in relevant part:



Hearsay exception; prior statements by witnesses. The following statements previously made by witnesses who testify at the trial or hearing are not excluded by the hearsay rule:



(1) Inconsistent statement. The declarant is subject to cross-examination concerning the subject matter of the declarant's statement, the statement is inconsistent with the declarant's testimony, the statement is offered in compliance with rule 613(b), and the statement was:

(A) Given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or

(B) Reduced to writing and signed or otherwise adopted or approved by the declarant; or

(C) Recorded in substantially verbatim fashion by stenographic, mechanical, electrical, or other means contemporaneously with the making of the statement[.]

2. We note that a trial court may, under proper circumstances, admit a prior written or recorded statement in full pursuant to HRE Rule 613, see, e.g., State v. Clark, 83 Hawai`i 289, 295, 926 P.2d 194, 200 (entire taped interview of a witness with a police detective admitted where witness testified that her entire statement to the police was a "total lie"), reconsideration denied, 83 Hawai`i 545, 928 P.2d 39 (1996); State v. Eastman, 81 Hawai`i 131, 134, 913 P.2d 57, 60 (1996) (entire written form admitted where witness testified that her statements in the form were "not true"). Where the information in the written or recorded statement goes beyond the scope of direct or cross-examination, however, that information must be redacted before the rest of the written statement may be admitted.



We observe that the transcribed interview would have been admissible as substantive evidence, pursuant to HRE Rule 802.1(1), if (1) Jardine had disclaimed the contents of the entire transcribed interview, (2) the prosecution had questioned Jardine on each prior inconsistent statement, or (3) the prosecution had redacted portions of the transcribed interview about which Jardine was not questioned. See Clark, 83 Hawai`i at 294-95, 926 P.2d at 199-200 (noting that, if prior inconsistent statements meet the requirements of HRE Rule 802.1(1), they may be admitted as substantive evidence of a defendant's guilt); Eastman, 81 Hawai`i at 137-38, 913 P.2d at 63-64 (same); State v. Thomas, 84 Hawai`i 253, 261-62, 933 P.2d 90, 98-99 (App. 1997) (noting that, although "[a]uthorities have questioned the use of prior inconsistent statements as the sole basis to support a conviction, . . . HRE Rule 802.1(1) expressly permits substantive use of a prior written statement signed by a witness who gives trial testimony inconsistent with that statement").