CG times 9.5, T/B 4,4LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON. PADGETT, writes the opinion
... Sometime after noon on Saturday, April 21, 1990, Heather Klafta, an infant, some 16 months old, was found lying face‑down on the steep bank of Lake Wilson, dehydrated, dirty, with dirt in her mouth, numerous bruises, and infested with maggots which were eating her. When the police were able to find out who she probably was, they went to the nearby home of appellant, her mother, to inquire. The divorced father, who was there, informed them that the appellant had told him that Heather had been taken away by the social services, and the appellant said that Heather had been kidnapped on the previous Thursday, the 19th, by two black men.
Heather had in fact been abandoned by [her mother] about 2:00 a.m. on April 20th on a dirt mound between a road and the Wahiawa Reservoir. A 6‑year‑old sister was a witness to the abandonment, and had attempted unsuccessfully to get her mother to go back for the child the next day. Appellant told the sister to say that she, appellant, had given the child away to a social worker and later told the sister to say that Heather had been kidnapped. When the ex‑husband and father of Heather returned to the Wahiawa apartment of appellant on the evening of the 20th, appellant told him Heather had been taken away by social services. Although there was a medical opinion that Heather would not have survived another 24 hours, exposed as she was, she recovered, and appellant was subsequently indicted, and ultimately convicted, for attempted murder in the second degree.
At trial, the State elicited testimony from six neighbors who had observed Heather's physical condition in the days preceding the abandonment, a police officer, who recovered maggots from Heather's diaper, three doctors who treated Heather, including one entomologist who explained the life cycle of the maggots found on Heather and their significance with respect to the time frame.
In addition, the State produced photographs of Heather in the condition in which she was found.
At trial, appellant objected to all of this testimony as being irrelevant and prejudicial. and as cumulative, in addition to being irrelevant and prejudicial.
The principal trial issue in this case was the appellant's intent in abandoning Heather and leaving her abandoned until she was finally found. Framed in the statutory language, did appellant, by abandoning Heather, intentionally engage in conduct which was a substantial step in a course of conduct intended or known by her to be such as to cause Heather's death.
The evidence … [was] all evidence which had the tendency to make the existence of the fact of intention to cause Heather's death more probable than it would have been without the evidence. Thus, all of that evidence was relevant under HRE 401 and admissible under HRE 402.
The question then is whether the judge should have excluded some or all of it because of the danger of unfair prejudice or because it was a needless presentation of cumulative evidence.
As the Commentary to HRE 403 notes, The responsibility for maintaining the delicate balance between probative value and prejudicial effect lies largely within the discretion of the trial court.
Dealing first with the claims of … cumulative evidence, … we do not see how [the doctor’s] testimony could be considered cumulative…We see no abuse of discretion in admitting th[e] photographs… [The five] neighbors … each observed many of the same things, but they also observed some things which were different and, again, we find no abuse of discretion in the admission of their testimony.
As to the contention, strongly urged by appellant, that the photographs, exhibits and testimony with respect to the maggot infestation of Heather was unduly prejudicial, we again see no abuse of discretion. Probative evidence always “prejudices” the party against whom it is offered since it tends to prove the case against that person.
The jury, in determining the issue of appellant's responsibility, as defined by the statute, was entitled to know Heather's condition by the persons who found her, by the doctors who then examined her, and by an expert on entomology to explain the time‑range and how the infestation developed. It is true that the evidence of maggot infestation is revolting to a person of ordinary sensibilities, but the testimony of even one witness as to Heather's condition, when found, is just as revolting.
It is possible to conceive of a case where so much cumulative evidence is admitted that its total prejudicial affect demonstrates an abuse of discretion by the trial judge, but this is not such a case. …[I]t is a case where the prosecution properly painted a complete picture of Heather when found. … the evidence was relevant, and the trial judge's determination that, in the circumstances of this case, it was not unduly prejudicial was not an abuse of discretion. ...
WAKATSUKI, Justice, dissenting. I respectfully dissent.
The admission of evidence regarding Heather Klafta's physical condition, specifically the maggot infestation of her vaginal area, was needlessly cumulative and highly prejudicial, thereby denying Sharon Klafta a fair trial. Further, the trial court erroneously excluded testimony of Sharon Klafta's psychiatrist, Dr. Cooper, regarding whether or not she possessed the intent to kill at the time of abandonment…
The State’s case was, in the majority's own words, “revolting to a person of ordinary sensibilities.” While evidence of Heather's physical condition, resulting from the environment in which she was abandoned, may have been relevant to show whether or not her mother intended to kill her by leaving her subject to such an environment, any probative value of the cumulativeness of the same evidence was substantially outweighed by the danger of unfair prejudice.
The graphic evidence of maggot infestation consisted of not just one color photograph, but several, depicting Heather's naked body eaten by the maggots. State's exhibit 9, displayed baby Heather Klafta's lying on her back with her legs spread open to reveal the vaginal and inner buttock area filled with open red sores created by the maggots that burrowed into her flesh. State's exhibit 10 again showed baby Heather Klafta lying on her back with her lower vaginal area exposed to reveal the red craters in her flesh eaten by the maggots. State's exhibit 16 also shows the upper portion of baby Heather's vaginal area while she lying down and partly turned on her side.
The State continued to offer evidence in this horrific manner with a slide show on the life cycle of a fly, presented by one of its experts. Projected onto a large screen before the jurors were color magnifications of the stages of the fly from a worm‑like larva appearance to that of a fully mature fly. These slides also showed up‑close the incisor like cutting edges in the mouth of the larva which it uses to burrow. Further, accompanying the slide show, the State introduced two vials of maggots and two slides containing maggots which were recovered from baby Heather Klafta.
In addition, the State's evidence regarding the maggot infestation included the detailed and largely repetitive accounts of the maggots in Heather's flesh by the two doctors, Dr. Craig Thomas and Dr. Frederick Burkle, Jr., who treated Heather. Further, each time one of these doctors testified the photographs of Heather's maggot eaten vaginal area were passed to the jury.
The unnecessary cumulativeness of this evidence also substantially prejudiced Sharon Klafta's right to a fair trial. The majority seems to rationalize that if the testimony by “even one witness as to Heather's condition, when found” is “revolting”, then the effect of additional similar testimony combined with the graphic color photographs and enlarged pictures from the slide show, could not have heightened prejudice. However, upon repetition the very nature of this evidence increases, rather than decreases, the sensitivities of the jurors. Obviously, this kind of presentation, could have easily led the jurors to bypass the inquiry of whether or not Sharon Klafta intended to kill her child at the time of abandonment by improperly focusing instead on what actually happened to the child as evidence of Sharon's intent to kill. ... I would reverse the trial court's rulings and remand a new trial.