Topics: Appellate Review


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STATE v. KASSEBEER , 118 Hawai'i 493, 193 P.3d 409 (2008)
Motion To Strike Should Be Made To Nonresponsive Answer
Background: Defendant was convicted of sexual assault in the first degree and kidnapping with intent to terrorize in connection with incidents involving wife. The Intermediate Court of Appeals, affirmed.
In the Supreme Court, judgments vacated and matter remanded for new trial. ****
Kassebeer further complains that the trial court erred by subsequently “allowing [the complainant] to engage in [a] long, non-responsive, sympathy rendering[ ] narrative over defense objection
A trial court's decision to admit testimony over an objection based on nonresponsiveness requires a “ ‘judgment call’ “ and is reviewed for abuse of discretion. Strictly speaking, it appears that the complainant's answer was nonresponsive to Kassebeer's question, however inartfully posed, which asked whether the complainant recalled responding to Detective Kim. “[w]hen an unresponsive or improper answer is given to a proper question, the remedy is a motion to strike,” and that, “[a]bsent such motion, the answer will generally not be considered when urged on appeal as prejudicial.” … Kassebeer failed to move to strike the complainant's nonresponsive answer….
We also note that “responsiveness is not the ultimate test of admissibility” and that, “[i]f an unresponsive answer contains pertinent facts, it is nonetheless admissible; it is only when the unresponsive answer produces irrelevant, incompetent or otherwise inadmissible information that it should be stricken Here, the complainant's response further clarifies the conversation that occurred at the door of the residence between Hashimoto-Matautia and the complainant following the alleged sexual assault, the details of which Kassebeer had called into question in the context of whether the complainant had told Hashimoto-Matautia that she had been beaten or raped. The response was not irrelevant, incompetent, or otherwise inadmissible.
Nevertheless, inasmuch as the circuit court impaired Kassebeer's right to confront the complainant and abused its discretion by sustaining the prosecution's “asked-and-answered” objection, the ICA erred in affirming the circuit court's judgment…. we vacate the ICA's and remand this matter for a new trial on the first degree sexual assault and kidnapping counts.

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