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State v. Kahakai11/26/2001
Defendant-appellant Stacy Kahakai (Stacy) appeals his conviction of and sentence for four counts of sexual assault in the first degree, in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(b) (1993), and three counts of sexual assault in the third degree, in violation of HRS § 707-732(1)(b) (1993).
On appeal, Stacy argues that the trial court, the Honorable Riki May Amano presiding, erred in: (1) granting the prosecution's motion to consolidate his case with that of his brother, Zachary Kahakai (Zachary); (2) admitting the testimony of certain witnesses; (3) failing to take appropriate action when the prosecutor committed misconduct by making numerous prejudicial comments; (4) preventing his attorney from arguing that complainant's injuries could have arisen from recent sexual relations instead of from the alleged assaults; and (5) failing to prevent the prosecutor from repeatedly referencing to complainant as the "victim." Stacy also argues that the cumulative effect of the trial court's errors warrants a new trial. We hold that the trial court erred by allowing a prosecution witness to give improper testimony regarding the ultimate issue as to whether Stacy sexually assaulted the complainant. Therefore, we vacate Stacy's conviction and remand the case for a new trial.
I. BACKGROUND
In January 1991, Stacy became romantically involved with complainant's mother (Mother). Mother and complainant often spent the night at Stacy and Zachary's home in Hilo.
Sometime in late 1991, Stacy, Mother, the ten-year-old complainant, and complainant's sisters moved into a residence in the Hawaiian Beaches area of Puna. According to complainant, in 1991, at the Hawaiian Beaches home, she was first subjected to sexual intercourse, digital penetration, and other sexual contact by Stacy. Over the next two years, there were other incidents of similar sexual contact between Stacy and complainant and Zachary and complainant at various residences in Hawaiian Beaches, Hilo, and Papaikou. Stacy and Zachary each made complainant promise not to tell anyone what had happened.
Shortly thereafter, in 1993, complainant was removed from the custody of her mother and placed in foster care. Complainant lived in several foster homes for the following two years until she was placed with her current foster family on Oahu. Immediately prior to her placement on Oahu, complainant was living with the Tabajunda family in Paradise Park on the Island of Hawaii. On September 6, 1995, complainant told Ms. Tabajunda and one of the Tabajundas' neighbors that she had been assaulted by Stacy and Zachary. Ms. Tabajunda informed complainant's Child Protective Services (CPS) case manager, Ruth Kunimura, of complainant's disclosure.
Kunimura spoke with complainant on September 12, 1995, and an investigation commenced on September 26, 1995. The sexual assaults were reported to Lieutenant Derek Pacheco of the Hawaii Police Department (HPD).
On October 25, 1995, an examination of complainant was conducted at the Hilo Medical Center by Phoebe Lambeth, a registered nurse. By this time, complainant was about thirteen years old. Lambeth used a colposcope during the examination and took various pictures of complainant's vagina. Loretta Rao, M.D., examined the colposcope photographs. Lambeth and Dr. Rao both testified at trial about the injuries sustained by complainant.
On February 28, 1997, the grand jury indicted Stacy and Zachary on multiple counts of sexual assault. Stacy was indicted on four counts of sexual assault in the first degree and three counts of sexual assault in the third degree. Stacy's and Zachary's cases were consolidated for trial.
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