No. SCWC-11-0000073, Wednesday, July 11, 2012, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. DONALD LEVELL, JR., Petitioner/Defendant-Appellant.

(Harassment)

Attorneys for Petitioner/Defendant-Appellant: John M. Tonaki, Public Defender; Trisha Y. Nakamura and James S. Tabe, Deputy Public Defenders

Attorneys for Respondent/Plaintiff-Appellee: Keith M. Kaneshiro, Prosecuting Attorney; Stephen K. Tsushima, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal, by James E. Duffy, Jr., filed 05/02/12.

NOTE: Order assigning Circuit Court Judge Jeannette H. Castagnetti in place of Duffy, recused, filed 05/09/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/14/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Jeannette H. Castagnetti in place of Duffy, recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner Donald Levell (Petitioner) met the complainant a month prior to the alleged incident and invited her to stay in his apartment after the complainant told him she did not have a place to stay. Petitioner allowed the complainant to use one of his cell phones. On the date of the incident a disagreement ensued when Petitioner switched the original cell phone he had given to the complainant with a different cell phone. The complainant became upset and insisted Petitioner return the original phone to her. The complainant alleged Petitioner pushed her in the chest with open palms. Petitioner was charged by Respondent State of Hawaiʻi with Harassment, HRS § 711-1106(1)(a).

Prior to trial, Petitioner moved pursuant to Hawaiʻi Rules of Evidence Rule 404(b), which allows the admission of the prior bad acts of a witness for certain purposes, to cross-examine the complainant regarding whether she had stolen Petitioner’s debit and credit cards and used them. Petitioner maintained such evidence was relevant to establish that the complainant might have a motive to fabricate the allegations against Petitioner or slant her testimony against Petitioner at trial.

In his Application fo writ of certiorari, Petitioner contends the Intermediate Court of Appeals gravely erred in holding that (1) the district court did not abuse its discretion in prohibiting Petitioner from cross-examining the complainant regarding the alleged theft and (b) even if the district court did err, such error was harmless beyond a reasonable doubt.