No. SCWC-14-0001217, Thursday, April 7, 2016, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JAMAL MCGHEE, Petitioner/Defendant-Appellant.
 
The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:
    William H. Jameson, Jr., Deputy Public Defender

Attorney for Respondent:
    Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/08/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

        Jamal McGhee (McGhee) filed an application for writ of certiorari to review the Intermediate Court of Appeals’ (ICA) December 1, 2015

judgment on appeal entered pursuant to its October 23, 2015 summary disposition order affirming the District Court of the First Circuit’s (district

court) October 13, 2014 Notice of Entry of Judgment and/or Order.

        McGhee was arrested near a bar after its owner, the complaining witness (CW), called the police and reported that McGhee was screaming and

swearing outside of her establishment and directing threats at her.  McGhee was subsequently charged with Terroristic Threatening in the Second

Degree.  At the bench trial, McGhee and the CW were the only two witnesses who testified.  On direct-examination, the CW testified that she felt

threatened by McGhee’s behavior, stating that he threatened to beat her up and kill her.  However, on cross-examination, she made a contradictory

statement that McGhee’s actions did not make her feel afraid.
 
During the defense’s closing argument, the prosecutor interjected that out of fairness to the defense, he wanted to read part of a 252 statement the

CW had made to the police after the incident.  The 252 statement had not been admitted into evidence during the evidentiary phase of the trial.  The

prosecutor then read a portion of the statement to the court where the CW said that McGhee’s actions caused her to feel afraid and call the police. 

The district court found McGhee guilty of Terroristic Threatening in the Second Degree.

On appeal before the ICA, McGhee contended that the introduction of the 252 statement did not help the defense, but rather strengthened the

prosecution’s case by bolstering the credibility of the CW’s direct testimony that she was afraid of McGhee.  McGhee also argued that the 252

statement was inadmissible testimonial hearsay because the prosecution introduced it during closing argument when it had not formerly been admitted

during the evidentiary phase of the trial.  The ICA’s summary disposition order affirmed the district court’s judgment, stating that the ICA was not

convinced that the 252 statement had been effectively admitted into evidence and that even if it had, it was not relevant to the issues at trial.
 
In his application, McGhee raises the question:

1.Whether the ICA gravely erred in failing to conclude that the district court did not commit plain error when it admitted the complainant’s 252

statement to police into evidence during closing argument where the statement had not been admitted into evidence during trial.