***NOT FOR PUBLICATION***
STATE OF HAWAI`I, Plaintiff-Appellee
vs.
ALAN YUEN, Defendant-Appellant
On appeal, Defendant contends (1) that in allowing the testimony of witness Gail Yafuso (Yafuso), the court violated Hawai`i Rules of Evidence (HRE) Rules 403 (1993), (5) 404(a) (Supp. 1994), (6) and 608 (1993), (7) and (2) HRS chapter 846E violates both the United States and Hawai`i Constitutions in that they conflict with: (a) procedural due process; (b) the cruel and unusual punishment clauses; (c) the right to privacy; and (d) the equal protection clauses.
Because defense counsel failed to object to Yafuso's specific testimony at trial, any alleged error with respect to Yafuso's testimony raised for the first time on appeal is reviewed for plain error "to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Sawyer, 88 Hawai`i 325, 330, 966 P.2d 637, 642 (1998). We hold that the court did not err by allowing Plaintiff-Appellee State of Hawai`i (the prosecution) to elicit testimony from Yafuso regarding the complainant's competency, professionalism, and "laid-back" nature. Generally, "[e]vidence of a person's character or a trait of a person's character is not admissible for the purpose of proving action in conformity therewith . . . except . . . [e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same[.]" HRE Rule 404(a)(2). Yafuso's testimony did not fall into the category of impermissible character evidence as defined under HRE Rule 404(a)(2). The testimony regarding the complaining witness's competence, professionalism, and "laid-back" personality was relevant to the determination of whether the tone of her conversation with Yafuso was out of the ordinary, to illustrate how Yafuso knew the complaining witness, and to explain how Yafuso was able to discern whether the complaining witness was upset or not.
The evidence also does not fall under the limitations of HRE Rule 608. Rule 608 concerns the use of character evidence for the purpose of impeachment or rehabilitation after impeachment. This rule is not applicable because Yafuso's testimony was not proffered to rehabilitate the complaining witness's credibility, nor did it go to her character for truthfulness. The evidence was offered to compare the complaining witness's usual tone of voice to her tone of voice in the telephone call and was not offered to bolster the complaining witness's credibility.
The evidence did not violate HRE Rule 403. "The determination of the admissibility of relevant evidence under HRE 403 is eminently suited to the trial court's exercise of its discretion because it requires a cost-benefit calculus and a delicate balance between probative value and prejudicial effect." Kealoha v. County of Hawai`i, 74 Haw. 308, 315, 844 P.2d 670, 674 (1993) (internal quotation marks and brackets omitted). A reasonable judge could conclude, as the court did in this case, that Yafuso's testimony was probative of a comparison between the complaining witness's usual tone of voice with the tone she used in the telephone call to Yafuso. The prejudicial effect to Defendant was not so obvious that the trial court's failure to exclude the evidence constituted an abuse of discretion, especially in the absence of an objection from defense counsel alerting the judge to the alleged error. Thus, plain error did not occur.
Regarding Defendant's constitutional challenge to HRS chapter 846E, we hold, consistent with Bani, that the absence of procedural safeguards in the public notification provision of HRS chapter 846E (Supp. 2001) violates the due process requirements of article I, section 5 of the Hawai`i Constitution, and accordingly renders that public notification provision void and unenforceable.
As to his second argument, this court has held that the due process clause of the Hawai`i Constitution bars application of the public notification provisions of HRS chapter 846E to Defendant. Thus, notification requirements as applied to Defendant must be vacated. See Bani, 97 Hawai`i at 287, 36 P.3d at 1257.
In State v. Guidry, No. 22727, slip op. at 2 (Haw. Aug. 6, 2004), the continuing lifetime registration requirement was held to violate procedural due process unless "notice and the opportunity to be heard" was afforded a convicted offender, inasmuch as lifetime registration "implicates a protected liberty interest[.]" Thus, a defendant may seek a hearing which "may be instituted by a sex offender in a special proceeding[]" at any time. Id. at 2-3. Under Bani, the initial registration requirement was valid as to Defendant. Defendant did not file a special proceeding as to continuing registration requirements. Thus, the registration requirement validly applies to Defendant.
Inasmuch as this court has held that the notification and registration provisions violated Defendant's procedural due process rights under the Hawai`i Constitution, Defendant's arguments under the federal constitution need not be addressed.
As to cruel and unusual punishment, Defendant argues that "HRS chapter 846E, as applied to [the Defendant], is grossly disproportionate to the offenses for which he was convicted[.]" However, the Supreme Court has indicated that the "Eight Amendment did not contain a proportionality guarantee . . . '[u]nder the federal constitution[; rather,] the question is . . . whether the statute itself effects a "punishment [which] was both (1) severe and (2) unknown to Anglo-American tradition."'" Guidry, slip op. at 31-32 (quoting Harmelin v. Michigan, 501 U.S. 957, 978, 991 (1991) (emphasis in original)) (brackets omitted).
The "cruel and unusual" punishment provision in the Hawai`i Constitution incorporates a proportionality test. Id. at 32-33. But "the registration requirements are not so punitive in nature as to overcome the legislature's remedial purpose . . . [and] there is ample authority holding that registration is not punitive in nature." Id. at 33 (emphasis added). Defendant, therefore, "has failed to demonstrate that the registration requirements under HRS chapter 846E constitute cruel and unusual punishment under the Hawai`i Constitution." Id.
As to the right to privacy, first, Defendant "has not been afforded a hearing to determine whether public notification . . . is warranted." Id. at 35-36. Because this violates procedural due process under Bani, the public notification provisions of HRS chapter 846E (Supp. 2001) are unenforceable as to Defendant. (8) See supra. Inasmuch as "the provisions are void as to [Defendant], we need not determine whether, if such provisions did apply, they violated [Defendant's] right to privacy." Id. at 36.
As to compilation of information, it is difficult to discern Defendant's argument regarding how compilation would affect
one's right to privacy. It is unclear from Defendant's brief as to how assembly of information alone may implicate the right
to privacy. Indeed, Defendant's emphasis is on disclosure of such information, a matter determined by Bani. (9)
Consequently, Defendant's contentions fails to specify how compilation of the information alone infringes on his privacy
rights. Thus we do not consider this aspect of the claim. (10)
As to equal protection, the notification provision does not affect Defendant, as stated supra, hence his equal protection arguments regarding disclosure need not be discussed. With regard to compilation of information, the initial act of registration "does not implicate any fundamental rights to privacy." Guidry, slip op. at 37 (citing Bani, 97 Hawai`i at 292, 36 P.3d at 1263).
Assuming arguendo that lifetime registration implicates a fundamental right to privacy, Defendant does not have standing to challenge HRS chapter 846E as unconstitutionally overbroad to the extent that Defendant's underlying sex offense did not involve kidnapping or unlawful imprisonment of a minor. Id. at 38-39. Additionally, under Guidry, sex offenders may initiate hearings to challenge lifetime registration requirements. Id. at 1-3. Such hearings provide a sex offender with the opportunity to present evidence that he or she does not present a threat to the community. See id. In light of the hearing requirement, Defendant's overbroad argument is unpersuasive.
As to the statute being under inclusive, this court has reasoned that "if the law presumably hits evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied." Id. at 40 (quoting State v. Freitas, 61 Haw. 262, 273-74, 602 P.2d 923 (1979)). Hence, there was no violation of the equal protection clause simply because the legislature focused on sex offenders. Id.
HRS chapter 846E "rationally furthers a legitimate state interest," id. (quoting Baehr v. Lewin, 74 Haw. 530, 573, 852 P.2d 44, 64 (1993), and "any infirmity with respect to the rational basis requirement is obviated by our holding that due process requires that a hearing must be provided, at some point, to determine whether lifetime registration is warranted[,]" id. at 41. Therefore,IT IS HEREBY ORDERED that the court's January 22, 2001 judgment convicting Defendant of violating HRS § 707-733(1)(a) is affirmed, except that the notification requirement of HRS chapter 846E (Supp. 2001) as to Defendant is vacated and this case is remanded for proceedings consistent with Bani.
DATED: Honolulu, Hawai`i, August 30, 2004.
James S. Gifford, Deputy
Public Defender,
(James S. Tabe, Deputy
Public Defender, on
the briefs), for
defendant-appellant.
1. Associate Justice Ramil, who heard expedited oral argument in this case on September 4, 2002, retired from the bench on December 30, 2002. See Hawai`i Revised Statutes § 602-10 (1993) (providing, in relevant part, that "[a]fter oral argument of a case, if a vacancy arises . . . , the case may be decided by or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.").
2. The Honorable Russell Blair presided over this matter.
3. HRS § 707-733(1)(a) states:
(a) The person knowingly subjects another person to sexual contact by compulsion or causes another person
to have sexual
contact with the actor by compulsion[.]
4. The court's obligation to sentence Defendant to adhere to the requirements of HRS chapter 846E is not addressed, inasmuch as this issue was not raised by the parties. Moreover, because State v. Guidry, No. 22727, slip op. (Haw. Aug. 6, 2004), affords a defendant a hearing at the defendant's request, whether the duty to register stems from the court's sentence or HRS chapter 846E is not material in this case, inasmuch as HRS chapter 846E requires it.
5. HRE Rule 403 states:
6. HRE Rule 404(a) provides, in pertinent part, as follows:
. . . .
(2)
Character of a victim. Evidence of a pertinent trait
of character of the victim of the crime offered by an
accused, or by
the prosecution to rebut the same . . . .
7. HRE Rule 608 provides, in pertinent part:
(1) The evidence may refer only to character for truthfulness or untruthfulness, and
(2)
Evidence of truthful character is admissible only
after the character of the witness for truthfulness has been
attacked by
opinion or reputation evidence or otherwise.
8. This court noted in Guidry that
Guidry, slip op. at 1-2. Application of the public notification requirements of HRS § 846E-3 (Supp. 2003), which were subsequently enacted, is not addressed.
10. Defendant also contends that "informational privacy" is violated because "information on Defendant is clearly connected to his sexual relations, i.e., his contact[ ] with the complainant[;] . . . [t]hus public disclosure of registration information implicates the informational prong of article I, § 6." (Emphasis added.) As this court stated in Guidry, "[w]e do not agree that [Defendant's] information regarding his sexual assault in the second degree offense should be protected under the right to privacy regarding one's 'sexual relations'." Guidry, slip op. at 34 n.29.