No. 27660 (Sep. 30, 2008)
Opinion [pdf]
OPINION OF THE COURT BY LEVINSON, J.
On May 29, 2008, the defendant-appellant-petitioner Anthony Kassebeer, Jr., filed an application for a writ of certiorari, urging this court to review the memorandum opinion of the Intermediate Court of Appeals (ICA) in State v. Kassebeer, No. 27660 (Hawaii Ct. App. February 29, 2008) (ICA's mem. op.). The ICA affirmed the November 16, 2005 judgment of conviction and sentence of the circuit court of the first circuit, the Honorable Dexter D. Del Rosario presiding, convicting Kassebeer of sexual assault in the first degree, in violation of Hawai‘i Revised Statutes (HRS) § 707-730(1)(a) (Supp. 2003), and kidnapping, in violation of HRS § 707-720(1)(e) (1993). Kassebeer raises the following arguments: (1) he was denied his constitutional right to a fair trial through cumulative errors by the circuit court; (2) the circuit court erred in admitting Kassebeer's handgun into evidence; (3) the circuit court erred in admitting into evidence testimony of a prior incident of physical abuse by Kassebeer against Kassebeer's wife at the time of the incident (the complainant); (4) the circuit court failed to deliver a specific unanimity instruction as to the charge of kidnapping; (5) the circuit court erred in communicating its opinion that an offense had actually been committed; (6) the circuit court erred in preventing Kassebeer from effectively confronting and cross-examining witnesses called by the plaintiff-appellee-respondent State of Hawai‘i (the prosecution); and (7) the circuit court erred in refusing to grant Kassebeer's three motions for mistrial.
For the reasons that follow, we hold that the ICA erred in concluding (1) that the circuit court did not plainly err when it failed to include a specific unanimity instruction regarding the kidnapping charge and (2) that the circuit court did not prevent Kassebeer from effectively confronting and cross-examining the complainant. We therefore vacate the ICA's March 28, 2008 judgment and the circuit court's November 16, 2005 judgment. This matter is remanded to the circuit court for a new trial on the first degree sexual assault and kidnapping counts. [footnote omitted]
