Topics: Appellate Review


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STATE v. KELEKOLIO 74 Haw. 479, 849 P.2d 58 (1993)

[Defendant was convicted of sexual assault in second degree and kidnapping. Vacated and remanded.]
... Kelekolio, a “Handi‑van” driver, allegedly kidnapped his lone passenger (“the complainant”), drove the van he was operating into a parking lot, and sexually assaulted her. The complainant, who suffers from Down's Syndrome, is a mentally retarded woman and functions at the cognitive level of a four‑ to seven‑year‑old child.
During the prosecution's case in chief, James Lomont, Ph.D (Lomont), a clinical psychologist who had previously examined the complainant, was called to testify. Lomont opined that the complainant had an intelligence quotient (IQ) of 43 and operated at the cognitive level of a four‑to seven‑year‑old person. On cross‑examination, Lomont expressed opinions that the complainant was intellectually capable of fantasizing, changing facts to avoid punishment, and augmenting and omitting facts regarding an event she had experienced.

The prosecution later called the complainant as a witness. Having established her diminished level of cognitive functioning through Lomont, the DPA endeavored to lay a foundation for the complainant's competency to testify via the following exchange:

Q. [By the DPA:] [Complainant], is telling the truth good or bad?

A. [By the complainant:] Good.

Q. Is telling a lie good or bad? Is telling a lie good or bad?

A. Good.

Q. Okay. [Complainant], do you know you're testifying in court today. You know you're talking to everybody here today, right? You have to tell the truth, okay. You understand that?

A. (Witness shakes head.)

Q. You have to answer, yes or no. You cannot nod your head, because this man that's sitting right here has to take down everything that you say, okay. You know that you have to tell the truth today, [Complainant]?

A. Yes. (Emphasis added.)
The DPA then began her direct examination of the complainant. The complainant was unable to identify Kelekolio, who was present in the courtroom. She told the DPA that she was “very scared.” The complainant eventually testified that Kelekolio had forced her to the back of the Handi‑van, penetrated her vagina with his penis, instructed her not to tell anyone, and drove her to work at the Helemano Plantation. On cross‑examination, she was unable to explain the meaning of “kidnapping” and “rape”‑‑words that she had utilized in her testimony.

[Defense counsel] Agmata failed to object at any time to the complainant's competence to testify, and the trial court did not engage in an independent inquiry to establish competence.
C. The Complainant's Competency to Testify

Kelekolio alleges that Agmata was ineffective for failing to move for a hearing to determine the complainant's competency to testify at trial on the ground that “there was clearly an issue as to whether [she] understood the duty to tell the truth ... and was thus competent to testify under HRE 603.1.” ...

Notwithstanding the foregoing and for the reasons set forth below, we believe that the trial court, sua sponte, should have conducted a competency hearing prior to exposing the complainant's substantive testimony to the jury‑‑ regardless of the trial tactics of the parties‑‑and that it was plain error for the court to have failed to do so.

“A person is disqualified to be a witness if [s]he is ... incapable of understanding the duty of a witness to tell the truth,” HRE 603.1. Not surprisingly, HRE 603.1 is “primarily applicable to youthful and mentally infirm witnesses.” ...

In this regard, the commentary on HRE 603.1 (1985) indicates that the rule was intended to codify Hawaii's common law:...In Territory v. Titcomb, 34 Haw. 499, 502 (1938), the court announced that “the proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath? ... [I]f he can understand the test proposed, the jury must determine all the rest.”

There is ... a necessity that the child have cognitive skills adequate to comprehend the event he or she witnessed and to communicate memories of the event in response to questions at trial. If a child's view of the truth bears little resemblance to reality, it will also have little value to the trier of fact. Thus, competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial... Most notably, testimony by children on sexual abuse may require verification of the child's comprehension of the meaning of sexual terms and behavior. The best approach in borderline cases is to admit the testimony, rely on adversary presentation and cross‑ examination, and exercise judicial control in testing the sufficiency of the evidence.

...We therefore review the trial court's failure in the present case to conduct a competency hearing as to the complainant, pursuant to HRE 603.1, under the “right/wrong” standard.
In the present case, the trial court either made no finding of competency or adjudged the complainant to be competent sub silentio. However, our de novo review of the record persuades us that there was an inadequate showing of competency for the following reasons: (1) when asked whether lying was good or bad, the complainant responded, “Good”; (2) the complainant was unable to identify Kelekolio, who was present in court, although she repeatedly referred to him in her testimony by name; and (3) the complainant did not appear to understand the meaning of particular sexual and other terms (i.e., “ rape” and “kidnap”) that she employed in her testimony.

... Therefore, the question of testimonial competency must be determined on a case by case basis. We merely hold, on the record before us, that (1) the issue of the complainant's competency to testify was reasonably called into question; and (2) the trial court committed plain error in failing to engage in an independent inquiry and make an express finding as to whether the complainant was competent to testify before allowing her substantive testimony to be exposed to the jury.
The question thus arises as to whether the trial court's plain error was harmless. In order to answer in the affirmative, we would have to conclude beyond a reasonable doubt that Kelekolio's inculpatory statements were such that the complainant's testimony could not have affected the jury's verdicts. Inasmuch as, standing alone, the jury may have given little weight and effect to Kelekolio's inculpatory statements (the only other direct evidence of his guilt) in light of the totality of the circumstances under which they were obtained, we cannot.


Because we hold that the trial court committed plain error in failing to make an express determination of the complainant's competence to testify, and because we are not convinced beyond a reasonable doubt that the error was harmless, we vacate Kelekolio's convictions and remand for a new trial.

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