IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
The complaining witness (CW) who prompted the issuance of the stay-away order was Balanza's girlfriend. After a bench trial, Balanza was found guilty as charged. The family court sentenced Balanza to one year of probation and a jail term of forty-eight hours, with credit for twenty-one hours served.
On appeal, Balanza argues that: 1) there was insufficient evidence to prove that police officer Melvin Johnson, Jr. had reasonable grounds to issue the stay-away order; and 2) the family court violated Balanza's constitutional rights by precluding him from calling the CW as a witness at trial. We agree with Balanza's second contention and therefore vacate his conviction and remand the case for a new trial.
After a careful review of the record and the briefs submitted by the parties, we resolve the issues raised by Balanza on appeal as follows:
1. We conclude that there was sufficient evidence to show that Officer Johnson had reasonable grounds to issue the stay-away order. To obtain Balanza's conviction, the State was required to prove, among other elements, that in issuing the stay-away order, Officer Johnson had reasonable grounds to believe that: 1) there was physical abuse or harm inflicted by Balanza upon the CW; and 2) there was probable danger of further physical abuse or harm being inflicted by Balanza upon the CW. See HRS § 709-906(4).
Officer Johnson testified that he issued the stay-away order after receiving information from Officer Schnitzer, who also had responded to Balanza's residence. According to Officer Johnson, Officer Schnitzer told him that the CW had reported being physically pushed around and shoved, although the CW did not claim injuries at that time or pain, and that the CW had said there were past acts of abuse between her and Balanza. Officer Johnson also recalled hearing about police officers going to Balanza's residence on abuse cases in the past. Officer Johnson observed that the CW appeared to be shaking and upset over the incident and that Balanza was aggressive in his demeanor and directed profanities at the CW. When viewed in the light most favorable to the prosecution, State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998), we conclude that Officer Johnson's testimony was sufficient to prove that Officer Johnson had reasonable grounds to issue the stay-away order.
2. Balanza claims that the family court's decision to preclude him from calling the CW to testify violated his constitutional rights to compulsory process and to present a defense. We conclude that the family court harmfully erred in precluding Balanza from calling the CW as a defense witness.
After the State rested, Balanza attempted to call the CW as his first witness. In response to a request for an offer of proof, Balanza indicated that the CW could provide testimony relevant to whether the police had reasonable grounds for issuing the stay-away order. Balanza further proffered that the CW could provide testimony on whether Officer Johnson had given Balanza the opportunity to retrieve personal items from the house. (3) See HRS §709-906(4)(b). Balanza stated that the CW would provide details that conflicted with Officer Johnson's testimony on this subject, thereby providing a basis to attack Officer Johnson's credibility.
The family court apparently concluded that the CW's proffered testimony was not relevant, and the court sustained the State's objection to Balanza's calling the CW as a witness. We disagree with the family court's ruling.
The CW played a critical role in the issuance of the stay-away order. She was the alleged victim of past abuse by Balanza, and the stay away order was issued to protect her from possible impending abuse. It was the information the CW allegedly provided to Officer Schnitzer that provided the essential basis for Officer Johnson to issue the stay-away order. Balanza was not present during the CW's conversation with Officer Schnitzer and thus had no first-hand knowledge of what the CW told Officer Schnitzer. The CW clearly could offer testimony that was relevant to whether Officer Johnson had a reasonable basis for issuing the stay-away order, a necessary element of the prosecution's proof. See Hawaii Rules of Evidence (HRE) Rules 401 and 402 (1993).
For example, the CW could provide testimony about the statements she made to Officer Schnitzer, which would be probative of whether those statements had been accurately conveyed to Officer Johnson and properly relied upon by him. In addition, Balanza proffered that the CW's testimony would conflict with Officer Johnson's testimony regarding whether Officer Johnson gave Balanza the opportunity to retrieve personal effects from the house. The CW's testimony could therefore have served to impeach Officer Johnson's credibility. See HRE Rules 607 and 609.1 (1993). Officer Johnson was the State's main witness and being able to attack his credibility was crucial to Balanza's defense. Under these circumstances, we conclude that the family court erred in precluding Balanza from calling the CW as a witness. See State v. Horn, 58 Haw. 252, 255, 566 P.2d 1378, 1380 (1977).
We vacate the family court's March 11, 2005, Judgment and remand the case for a new trial.
DATED: Honolulu, Hawai‘i, March 31, 2008.
1. The Honorable Barclay E. MacDonald presided.2. At the time of the alleged offense, Hawaii Revised Statutes (HRS) § 709-906 (Supp. 2002) provided in relevant part:
(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). . . .
. . . .
(a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;
(c) Where the police officer makes the finding referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;
(e) If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and
(Emphases added.)3. Officer Johnson testified that he had permitted Balanza to enter the residence to retrieve personal items before Balanza left the premises and that Balanza had gone inside and grabbed a shirt. Balanza proffered that the CW would testify that she did not see Balanza go into the house and that she did not see Balanza carrying anything when he departed. Balanza later testified that Officer Johnson did not give Balanza a chance to retrieve Balanza's items from the house.