ICA affirms conviction for burglary and theft

On July 25, 2011, the ICA issued its opinion in State v. Dominic Brooks, No. 30219 (7/25/11, Unpublished, ICA, (By: Foley, Presiding J., Fujise and Reifurth, JJ.) Appeal from the Circuit Court of the Third Circuit, Hon. Elizabeth A. Strance, presiding). Julie Kai Barreto, Esq. for Defendant-Appellant and Linda L. Walton, Deputy Prosecuting Attorney for Plaintiff-Appellee County of Hawai’i.

Defendant was found guilty of burglary and theft. Defendant raised many issues on appeal, some of which include (and were resolved) as follows:

-The circuit court did not abuse its discretion when it allowed evidence of Brooks's threats made towards Stuck because it "is well-established that evidence of threats or intimidation is admissible under Rule 404(b) to show a defendant's consciousness of guilt.”

-Brooks contends he was "prevented from attacking prosecuting witness Joshua Stuck's bias, interest, and motive arising from his status as a felony probationer, on grounds that HRE Rule 404(b) required prior notice of such an attack." Brooks also contends the circuit court abused its discretion when it denied his requests to ask Stuck about possible drug use at the time of the robbery or at the time Stuck made his statements. The circuit court did not prohibit Brooks from asking Stuck about Stuck's felony probation due to a lack of prior notice under HRE Rule 404(b); the circuit court denied Brooks's requests because "the balance of [Brooks's] proposed questions are –- the prejudice outweighs the probative value."

-The circuit court found "in its discretion that the balance of trying to establish some sort of bias under 609.1 is met by the limitations expressed." . . . The circuit court did not abuse its discretion when it limited Brooks's cross-examination of Stuck to any possible plea agreement with the State.

-Brooks did not present any evidence that (a) Stuck was using drugs near or at the time of the incident, (b) Stuck was using drugs near or at the time he made his statements, or (c) such alleged drug use affected his perception or recollection at the time of the incident or at the time he made his statements. Therefore, the circuit court did not abuse its discretion when it denied Brooks's request to question Stuck about possible drug use.

-Defense Counsel did not lay a proper foundation because she did not establish that [witness] was familiar with Patricia's reputation for truthfulness. Therefore, the circuit court did not err when it sustained the Prosecutor's objection based on lack of foundation.

-Brooks contends the circuit court, under HRE Rule 613(b), should have allowed him to introduce Patricia's asset and debt statement from her divorce. Rule 613(b) provides in relevant part: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross examination, (1) the circumstances of the statement have been brought to the attention of the witness, and (2) the witness has been asked whether the witness made the statement. . . . The circuit court did not abuse its discretion when, under HRE 608(b), it refused to admit the statement into evidence. Defense Counsel did not try to admit the statement into evidence under HRE 613(b). Furthermore, Brooks did offer to redact the statement, and most of it was irrelevant.

Affirmed.