Supreme Court rejects kidnapping conviction over reference to death

Toi Nofoa was acquitted in 2011 in the murder of his ex-girlfriend — gunned down as she sat in her sport utility vehicle in a Kapo­lei neighborhood just days before she was scheduled to testify against him for allegedly kidnapping and threatening her in 2008.

On Tuesday the Hawaii Supreme Court overturned Nofoa’s convictions for kidnapping and terroristic threatening, charges for which he went to trial after being acquitted of murder.

The state’s high court ruled that Nofoa did not get a fair trial because the trial judge allowed the jury to hear recorded testimony from ex-girlfriend Royal Kau­kani and allowed the prosecutor to tell jurors in closing arguments that the reason they did not hear live testimony was because Kau­kani was dead.

The Supreme Court sent the case back to Circuit Court for a new trial.

Kaukani’s death and Nofoa’s separate trials for murder and then kidnapping drew widespread attention to the issue of domestic violence in Hawaii.

On March 27, 2009, Kau­­kani was fatally shot behind the wheel of her SUV in an Ewa by Gentry neighborhood.

Nofoa was charged with first-degree murder because Kau­­kani was scheduled to testify against him in the kidnapping case.

The murder case went to trial, and a state jury found Nofoa not guilty on Nov. 23, 2011.

But in July 2012 a jury found Nofoa guilty of abducting Kau­­kani, 25, from her workplace in Ko Olina on Sept. 11, 2008, and forcing her into an SUV at gunpoint. Two Hale­iwa gas station employees testified they intervened to free Kau­­kani when Nofoa stopped the SUV at their gas station.

In the kidnapping trial, Nofoa’s lawyers argued against letting the jury hear Kau­kani’s recorded statements to a 911 operator on the date of the alleged kidnapping and her testimony in a preliminary hearing eight days later.

Statements not made in court are hearsay. And hearsay is generally not allowed as evidence because it denies a person charged with a crime his constitutional right to be confronted by his accusers.

One exception is if a person who made the hearsay statement is not available and the person on trial is responsible for that unavailability. That exception did not apply because Nofoa had already been acquitted of Kau­kani’s murder.

Circuit Judge Randal K.O. Lee ruled that Kau­kani’s preliminary hearing testimony met another exception because Nofoa’s lawyer had ample opportunity and did cross-examine Kau­kani without restriction during the preliminary hearing. He allowed the 911 call because he ruled that Kau­kani’s statement to the operator was made to report an emergency and not in response to law enforcement investigating a possible crime.

The Hawaii Intermediate Court of Appeals last year agreed with Lee.

The Supreme Court agreed with Lee on the 911 call. But the high court said the jury should not have been allowed to hear the preliminary hearing testimony because Nofoa’s lawyer did not have the opportunity to meaningfully cross-examine Kau­kani. At the time of the hearing, Nofoa’s lawyer was not aware of and had yet to receive Kau­kani’s written statement to police, a recording or transcript of her police interview and the police report.

All five justices also ruled that Lee should not have allowed the prosecutor to tell the jurors during closing arguments that Kau­kani was dead when that fact was never introduced into evidence.

Lee had prohibited any mention of Kau­kani’s death and manner of death during the trial as prejudicial to Nofoa since he was also accused of threatening Kau­kani with a gun. During closing arguments, however, Lee told the prosecutor he could tell the jurors that Kau­kani was dead because Nofoa’s lawyer suggested to the jurors in his closing argument that they should question why Kau­kani did not testify.

The Supreme Court said it could not discount the possibility that the jurors found Nofoa guilty of kidnapping and threatening Kaukani because they believed he was also responsible for her death.