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State v. Kido8/22/2003
s was the case in Grindles, that the error here was a derogation of "the well-established order of proof in criminal cases[,]" Grindles, 70 Haw. at 532, 777 P.2d at 1190, for the Brooks Court made it clear that it was finding error in an order of proof that was theretofore often ordained. Brooks, 406 U.S. at 607. See alsoHarris, 202 F.3d at 173.
We do not in any event discern error here of the kind and magnitude our supreme court has intimated can never be deemed harmless. State v. Holbron, 80 Hawaii 27, 32 n.12, 904 P.2d 912, 917 n.12 (1995) ("this court has viewed certain rights protected by the Hawaii Constitution to be so basic to a fair trial that their contravention can never be deemed harmless" (brackets, citation and internal quotation marks omitted)). Accordingly, we apply the harmless beyond a reasonable doubt standard generally applicable to trial error, constitutional or otherwise:
Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.
Id. at 32, 904 P.2d at 917 (brackets, citation and block quote format omitted).
Applying this standard, we disagree with the State's position that the court's error was harmless beyond a reasonable doubt. Essentially, the trial boiled down to the credibility of the witnesses. Garcia's testimony was comprehensively exculpatory and self-sufficient in that respect. Hearing it first would surely have enlightened Kido's decision whether to testify in his own defense, especially in the light of its otherwise inconsistent and contradictory details -- for example, Garcia's testimony that Kido was a current user of crack cocaine, that Garcia did not have a backpack, and that Kimo was present throughout the encounter. Had the court allowed Garcia to testify first, perhaps Kido would then have been well advised to leave well enough alone. The pertinent point is that he would have been afforded the constitutionally-mandated means and opportunity to make the decision, so informed. Brooks, 406 U.S. at 608, 612-13; Grindles, 70 Haw. at 532-33, 777 P.2d at 1190-91.
Hence, we perceive a reasonable possibility that the court's error contributed to Kido's conviction, and was therefore not harmless beyond a reasonable doubt. Accordingly, Kido's convictions must be set aside. Holbron, 80 Hawaii at 32, 904 P.2d at 917. Upon and beyond this conclusion, we must consider whether there was sufficient evidence adduced at trial to support Kido's convictions. " hallenges to the sufficiency of the evidence must always be decided on appeal. This is because the Double Jeopardy Clause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction." State v. Malufau, 80 Hawaii 126, 132, 906 P.2d 612, 618 (1995) (citation and internal quotation marks omitted).
On appeal, Kido attacks the sufficiency of the evidence adduced at trial, but only with respect to Count I. His argument in this regard, that the evidence was insufficient to show he knew there was cocaine in the glass pipe, is essentially identical to the one presented in the June 25, 2001 motion for judgment of acquittal he filed with the court, which we attempted to detail above. Suffice it to say that the evidence adduced at t
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