NOT FOR PUBLICATION IN WEST'S HAWAI`I REPORTS AND PACIFIC REPORTER
NO. 26335
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
On appeal, Torres argues that: 1) the circuit court abused its discretion in not allowing evidence of drug use by the complaining witness (the CW); 2) the circuit court committed plain error in failing to strike evidence of Torres's prior bad acts, which were elicited during questioning by Torres's counsel; and 3) Torres was denied effective assistance of counsel when his trial counsel failed to move to strike testimony adverse to Torres. We disagree with Torres's arguments and affirm the circuit court's Judgment.
The State of Hawai`i (the State) cross-appeals, arguing that the circuit court erred in admitting portions of a police report because they constituted inadmissible hearsay. Because we affirm the Judgment, we do not address the State's cross-appeal.
After a careful review of the record and the briefs submitted by the parties, we hold as follows:I.
Prior to trial, the State moved in limine to exclude evidence that the CW possessed or used illegal drugs. Torres opposed the motion, arguing that the CW's alleged drug use was relevant to her ability to perceive and recollect the incident in question. Torres also argued that the CW's alleged drug use was relevant to show that certain marks on the CW's arms and legs, which were visible in photographs taken of her alleged injuries, were "tweak" marks from drug usage.
The circuit court found that Torres's offer of proof was not sufficient to lay a foundation that the CW was on drugs at the time of the incident, and it accordingly ruled that the CW's alleged drug use was not admissible to attack her ability to perceive or recollect the incident. The court, however, allowed Torres to revisit the issue if he could lay a proper foundation. The circuit court further ruled that Torres could not ask the CW if the marks on her arms and legs were related to drug use unless Torres first established a foundation for asking such questions at a hearing pursuant to Hawaii Rules of Evidence (HRE) Rule 104 (1993). The court permitted Torres to ask witnesses whether the CW's alleged injuries were self-inflicted, without referring to drug use. (4)Torres testified that he entered the apartment only to retrieve his car keys and did not threaten or try to punch or kick the CW. Torres stated that he saw the CW hit herself and fall to her knees, ostensibly to injure herself so that she could falsely accuse Torres of abuse. Torres asserted that any injuries the CW sustained were either self-inflicted or occurred while he was trying to defend himself.
During the trial, Torres did not attempt to lay a foundation that the CW had used drugs at or near the time of the incident or that any of the marks visible in the photographs of the CW's injuries were marks that were attributable to her drug use. (5) We conclude that the circuit court did not abuse its discretion in excluding evidence relating to the CW's alleged drug use and in precluding Torres from questioning the CW on this subject. See HRE Rule 403 (1993); HRE Rule 611(a) (1993); United States v. Sampol, 636 F.2d 621, 667 (D.C. Cir. 1980); Blumhagen v. State, 11 P.3d 889, 892-94 (Wyo. 2000).
II.
During cross-examination, Torres's counsel elicited the following statements from the CW:
Q: Now, why wouldn't you open the door?
Q: Because it was [Torres]?
(Emphasis added.) In addition, Torres testified on direct examination by his counsel as follows:
Q: [D]id you subsequently find out that the police were looking for you?
Q: Okay. And how did you respond when you found that out?
And I called the police station, the Kalihi police station and told them who I was, and that I was going to turn myself in, if I can have a day to raise bail, and I asked them how much is the bail? They told me, 2,000, and I said, Okay. Can I turn myself in tomorrow, and the police officer said, okay, and I said, okay, fine.
(Emphasis added.)We reject Torres's claim that the circuit court committed plain error in failing to strike the emphasized portions of the above testimony of the CW and Torres. The CW's testimony that she had been "hit many times" by Torres was elicited by Torres's counsel and was relevant to the CW's motive for refusing to allow Torres to enter the apartment. See HRE Rule 404(b) (Supp. 2005). Torres's testimony that the CW "always charge me with abuse" was volunteered by him and implied that the arrival of the police was "nothing new" because the CW had falsely accused him of abuse in the past. Torres's testimony appears to have been in furtherance of his defense that the CW self-inflicted her injuries and falsely accused him of abuse. We conclude that the circuit court did not commit plain error in failing to strike the testimony challenged by Torres. See State v. Vanstory, 91 Hawai`i 33, 42, 979 P.2d 1059, 1068 (1999).
III.
We reject Torres's claim that his trial counsel provided ineffective assistance by failing to move to strike the testimony described above as well as testimony by the CW on cross-examination that the resident manager told her that Torres was on the phone and wanted to apologize. The Hawai`i Supreme Court has held that "[s]pecific actions or omissions [of counsel] alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny." Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976 (1993). It appears that the CW's testimony was elicited in the course of attempts by Torres's counsel to discredit the CW on cross-examination and that Torres's testimony was elicited in furtherance of his defense. Once the testimony was elicited, it was reasonable, and not ineffective, for counsel to decide not to highlight the testimony by moving to strike it.
In any event, assuming arguendo that counsel's performance was deficient in not moving to strike the testimony, Torres has not shown that counsel's errors resulted in the withdrawal or substantial impairment of a potentially meritorious defense. State v. Richie, 88 Hawai`i 19, 39, 960 P.2d 1227, 1247 (1998). We hold that Torres is not entitled to any relief on his ineffective assistance of counsel claim.
IV.
IT IS HEREBY ORDERED that the November 26, 2003, Judgment of the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, Hawai`i, November 21, 2006.
1. The Honorable Derrick H.M. Chan presided.
2. Hawaii Revised Statutes (HRS) § 707-716(1)(d) (1993) provides, in relevant part:
. . . .
HRS § 707-715 (1993), in turn, defines the offense of Terroristic Threatening, in relevant part, as follows:
3. HRS § 709-906 (Supp.
2005) provides, in relevant part:
For the purposes of this section, "family or household member" means . . . persons who have a child in common . . . and persons jointly residing or formerly residing in the same dwelling unit.
4.
The Circuit Court of the First Circuit (circuit court) also granted the
portions of the State of Hawaii's motion in limine that
requested the
exclusion of evidence that the complaining witness (the CW) possessed
or used drug paraphernalia or associated with people who used drugs or
drug paraphernalia. These aspects of the circuit court's ruling are not
contested on appeal.
5. The CW testified that the
bruises on her arms and legs depicted in the photographs were injuries
caused by Defendant-Appellant Norman Torres
(Torres) during the incident. The CW stated that
the other marks shown in the photographs of her arms and legs were
unrelated to the incident,
except that certain marks on her right arm, which she could not
specifically identify, may have been from scratches received from
Torres during the
incident.