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Oral Argument Before the Hawaii Supreme Court–SCAP-14-935

No. SCAP-14-0000935, Thursday, December 15, 2016, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. GERALD L. AUSTIN, Petitioner/Defendant-Appellant.

The above-captioned case was 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:

Craig W. Jerome, Deputy Public Defender

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order granting Application for Transfer, filed 07/07/15.

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

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Appellant/Defendant Gerald A. Austin (Austin) was convicted of murder in the second degree and sentenced to an extended term of life imprisonment without the possibility of parole in the Circuit Court of the First Circuit (circuit court).

In 1989, Edith Skinner (Skinner), an 81-year-old woman, was found dead in her apartment due to manual strangulation. Testing of fluid samples found in Skinner’s body revealed that semen had been recently deposited at the time of Skinner’s death.

During their investigation, the police took the recorded statement of Anne Wanous (Wanous). In her statement, Wanous described a black male whom she had seen leaving Skinner’s apartment earlier in the morning on the day of Skinner’s death; Austin is a Caucasian male. Later, Wanous’ niece and sister also informed the police that Wanous had told them she had seen a black male leaving Skinner’s apartment on the day that Skinner had died. Following a year-long investigation, the police deferred investigation of Skinner’s murder, having determined no further leads were available at the time.

In 2011, the Hawai`i State DNA Database reported a match between Austin’s DNA profile and the DNA profile of an unknown male suspect which was previously detected in the fluid found in Skinner’s body. Austin was subsequently indicted for the murder of Edith Skinner by a grand jury in 2012.

Prior to trial, two proceedings relevant to this appeal occurred. First, the circuit court denied Austin’s motion to preclude the state from referring to Skinner as the “victim” at trial. Second, the circuit court granted the State of Hawaii’s (the State) motion to exclude the statements Wanous had made to the police, her sister, and her niece as hearsay.

At trial, the circuit court instructed the jury on murder in the second degree, rejecting Austin’s request that the jury also be instructed on manslaughter and assault. After the jury found Austin guilty as charged, Austin filed a motion for a new trial. He argued that he had been denied a right to a fair trial because the prosecutor had engaged in several instances of misconduct during closing argument.

The circuit court denied Austin’s motion for a new trial, concluding that: (1) it was not improper for the prosecutor to argue that Austin’s testimony was unworthy of belief and that he had lied to the police and jury; (2) the State’s narrative of how the murder occurred was supported by evidence adduced at trial and reasonable inferences drawn therefrom.

Austin was then sentenced to an extended term of life imprisonment without the possibility of parole. He appealed his conviction and sentence to the Intermediate Court of Appeals, and thereafter, sought transfer to this court, which was granted.

On the transfer, the following five issues have been presented for review:

(1) Whether Austin’s sentence to an extended term violated the Ex Post Facto Clause of the Federal Constitution and HRS§ 1-3;

(2) Whether the trial court abused its discretion in allowing the State and its witnesses to refer to Skinner as “the victim” or “murder victim” at trial;

(3) Whether the trial court erred in excluding Wanous’ statements to the police, her sister, and niece as hearsay and thereby denied Austin his right to a fair trial in accord with due process;

(4) Whether the trial court erred in refusing to instruct the jury on the lesser-included offenses of manslaughter and assault and;

(5) Whether the trial court erred in denying Austin’s motion for a new trial.