State v. Bruce. , 411 P.3d 300 ( 2017 )

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Electronically Filed
Supreme Court
SCWC-15-0000439
09-OCT-2017
08:40 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellee,
vs.
LAWRENCE L. BRUCE and JUSTIN MCKINLEY,
Respondents/Defendants-Appellants.
SCWC-15-0000439
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000439; CAAP-15-0000477; CR. NO. 14-1-0987)
OCTOBER 9, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
I. INTRODUCTION
Petitioner/Plaintiff-Appellee State of Hawai#i (the
State) charged Respondent/Defendant-Appellant Lawrence L. Bruce
(Bruce) and Respondent/Defendant-Appellant Justin McKinley
(McKinley) with offenses arising from their alleged involvement
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in and benefit from the activities of a prostitute, the
complaining witness (CW). After being tried as co-defendants in
the same jury trial, the jury found Bruce guilty of promoting
prostitution in the second degree, and found McKinley guilty of
promoting prostitution in the first degree.
Bruce and McKinley appealed, arguing, inter alia, that
their trials were tainted by prosecutorial misconduct. The
Intermediate Court of Appeals (ICA) held that one of the
prosecutor’s comments during rebuttal closing argument
constituted misconduct, and that such misconduct was not harmless
beyond a reasonable doubt. Thus, the ICA vacated Bruce’s and
McKinley’s convictions and remanded their cases for new trials.
For the reasons stated below, we conclude that the
prosecutor’s comments during rebuttal closing argument did not
constitute misconduct. Although the prosecutor’s comments could
be interpreted as appealing to the jury’s passions and prejudices
when viewed in isolation, we believe that the comments, properly
analyzed in context, were relevant to the fundamental issues at
trial. Consequently, the comments were not improper.
Accordingly, as to Bruce, we reverse the ICA’s November
17, 2016 judgment on appeal filed pursuant to its October 20,
2016 memorandum opinion, which vacated the Circuit Court of the
First Circuit’s (circuit court) May 5, 2015 judgment of
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conviction and sentence and remanded the case for a new trial.
As to McKinley, we reverse the ICA’s September 29, 2016 judgment
on appeal filed pursuant to its August 31, 2016 memorandum
opinion, which vacated the circuit court’s May 5, 2015 judgment
of conviction and sentence and May 5, 2015 mittimus and warrant
of commitment to jail, and remanded the case for a new trial.
II. BACKGROUND
A. Circuit Court Proceedings1
On June 17, 2014, Bruce was charged with one count of
promoting prostitution in the first degree in violation of
Hawai#i Revised Statutes (HRS) § 712-1202(1)(a) and one count of
sexual assault in the first degree in violation of HRS § 707-
730(1)(a). McKinley was charged with one count of promoting
prostitution in the first degree in violation of HRS § 712-
1202(1)(a), two counts of sexual assault in the first degree in
violation of HRS § 707-730(1)(a), and one count of kidnapping in
violation of HRS § 707-720(1)(d). Bruce and McKinley were tried
as co-defendants at the same jury trial.
CW was one of the witnesses who testified on behalf of
the State. CW testified that she came to Honolulu, Hawai#i from
San Diego, California on April 1, 2014. She attested that her
initial purpose for coming to Hawai#i was to earn money through
1
The Honorable Randal K.O. Lee presided.
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prostitution so she could return home to Alaska. CW stated that
her former pimp, Lando, had advised her to go to Hawai#i.
CW testified that after arriving in Hawai#i, she went
to a hostel in Waikîkî, where she met a man named “L-Way” for the
first time. CW identified Bruce as L-Way at trial. CW testified
that upon meeting Bruce, Bruce informed CW of the sexual services
that she was to provide and the prices that she was to charge
therefor. CW also attested that during their initial
discussions, Bruce instructed CW on how she was to dress, act,
and speak if she were to walk the streets as a prostitute.
CW testified that rather than walking the streets, it
was determined that she would solicit clients via her internet
advertisement on a website called Backpage. CW attested that she
had previously posted a Backpage advertisement for sexual
services in San Diego, and that Bruce used his iPad to re-post
and update her advertisement to reflect her relocation to
Hawai#i. CW stated that Bruce paid $5 to promote her
advertisement by “bring[ing] it to the top” of the list of
advertisements on the website.
CW attested that she and Bruce then had sexual
intercourse as a way of “initiating that [she was his] girl now.”
She testified that after they had intercourse, Bruce said “[t]hat
[she] was his girl now.” CW stated that after becoming Bruce’s
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“girl,” she “work[ed] for him now.”
CW testified that she stayed at the hostel for about
ten or eleven days with Bruce, Jennie Ortegon (the mother of
Bruce’s son), and his son. She testified that while she stayed
at the hostel, Bruce was “[r]ight there with [her]” and did not
leave her alone. CW attested that in addition to the room in
which CW, Bruce, and his family slept, Bruce rented a separate
room at the hostel, which was solely used for dates with clients.
CW testified that during her stay at the hostel, she
provided sexual services for one client. CW attested that she
gave all of the money that she received from the client to Bruce,
because she “became his girl” and “when you do prostitution, you
give the guy the money. And if you don’t, then . . . [y]ou can
serve consequences . . . [like] [g]et[ting] beat up.”
CW testified that on or about April 11, 2014, she and
Bruce left the hostel and relocated to a Best Western hotel per
McKinley’s recommendation. She stated that before leaving the
hostel, Bruce had asked CW to give her I.D. and social security
card to him so she “wouldn’t be able to go nowhere.” CW
testified that she complied with Bruce’s request; upon arriving
at the Best Western, Bruce did not return her I.D. or social
security card to her.
CW testified that when she arrived at the Best Western,
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Bruce introduced her to McKinley, another pimp, and Keshawn
Stewart (Stewart), who was also a prostitute. CW, Bruce,
McKinley, and Stewart stayed in the same hotel room together.
CW testified that during her two-week stay at the Best Western,
she earned about $1,000 by providing sexual services to clients,
but she turned all proceeds over to Bruce.
On April 13, 2014, CW and Stewart received a call from
a customer who requested two prostitutes to meet him at the
Executive Centre Hotel (Executive Centre). CW testified that she
told Stewart that she “didn’t think that [they] should go on that
date because . . . the guy sounded funny, like he was a cop.”
She stated that Bruce, who was sitting next to her when she
expressed her concerns to Stewart, told her that “[h]e wanted
[CW] to go on that date.”
CW attested that after they met the customer at the
hotel room in the Executive Centre, the customer gave $700 to
Stewart. CW testified that after he placed the cash in Stewart’s
hand, the customer excused himself to go to the restroom.
Subsequently, police entered the room and arrested Stewart and
CW. The “customer” was actually a police officer from the
Honolulu Police Department (HPD), who had contacted CW and
Stewart as part of an undercover investigation and sting
operation.
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Following her arrest, CW spoke to HPD Officer Lovinna
Kaniho (Officer Kaniho) at the Executive Centre. Officer Kaniho
asked CW if she needed help getting out of prostitution. CW
testified that she refused help at the time because when Officer
Kaniho had spoken to her, Stewart was present. CW stated that
she was concerned that if she accepted Office Kaniho’s help,
Stewart would inform Bruce and McKinley that CW had agreed to
help the police. Subsequently, CW and Stewart were taken to
jail. CW was released on bail the next morning, and returned to
the Best Western.
CW testified that after she was arrested on April 13,
2014, she did not want to engage in prostitution anymore. CW
explained that she was selling her body for money, and she felt
like she “was somebody’s property.” She attributed her feelings
to Bruce’s “pimp demeanor.” CW described Bruce’s “pimp demeanor”
as follows: “[If] you do something wrong, you’re going to get
beat, or you’re just out here making money for [him] and giving
it to him. He just had that demeanor.” CW stated that despite
her reservations, she felt like she “had to” keep prostituting
because she “wanted to go home” and because she “didn’t want to
get beat up.”
CW attested that on April 18, 2014, she went to the Ala
Moana Shopping Center to buy new clothes. She testified that she
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needed to ask Bruce for permission to go to the mall, and that
she remembered asking him, through text message: “Daddy, can I
go with [Stewart] to the mall, please?” She stated that she
called Bruce “Daddy” because “that’s what girls call their
pimps.”
CW testified that while she was at the mall, Bruce kept
in contact with her via text message, and told her to “make sure
[she] tell him [sic] every place that [she] go [sic] or what
[she’s] doing.” CW also stated that Bruce, by text, told her to
take a picture of what she was wearing that day, because “there
was money” around the mall. CW testified that she understood his
comment to mean that she was to look for dates.
CW attested that on or around April 18, 2014, Bruce
left the Best Western for a few days and did not return. CW
testified that McKinley then called Bruce and told him that CW
was “going to become his girl now since [Bruce’s] gone and left
[her] behind.” CW stated that at that point, she “bec[a]me
[McKinley’s] property.” Bruce returned to the Best Western on
April 19, 2014 and turned over CW’s I.D. and social security card
to McKinley. CW stated that after that date, she made over
$1,000 by going on dates with clients. CW testified that she
turned over all of her earnings to McKinley because she “was his
property,” and that McKinley treated her “[l]ike property.”
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After staying at the Best Western for two weeks, CW
relocated to the Pagoda Hotel (Pagoda) with McKinley and Stewart.
At the Pagoda, there was an incident where McKinley beat CW by
hitting her face and legs and choking her. Bruce was present
during the incident and took a video recording of it on his cell
phone.
The video of the incident was entered into evidence
without objection, and was played for the jury. In the video, as
he was hitting CW, McKinley said, inter alia, that CW was
“costing everybody money,” that she was “costing [him] money with
[her] games,” and that CW was to “[g]et money by all means
necessary.” After remarking that calls to CW’s phone were being
sent to voicemail, McKinley said: “I’m going [to] beat your
brains.”
CW testified that while she did not know why McKinley
had beaten her that day, she believed that when McKinley, in the
video, referred to calls going to voicemail, he was likely
referring to calls from clients that CW did not answer. CW
attested that at the time, she was not answering calls to her
cell phone in response to her Backpage advertisement because she
“didn’t want to prostitute no more.”
CW stated that on May 13, 2014, after attending a
hearing related to her arrest in April 2014, she went to Queen’s
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Medical Center because she was not feeling well. She was
admitted to the hospital after a urine test revealed that she was
three months pregnant. After leaving the hospital, CW went to a
safe house and filed a police report. CW subsequently met with
Officer Kaniho and provided a statement.
Following CW’s testimony, the State entered Exhibit 33,
a log of text messages that were sent to and from a T-Mobile cell
phone in April 2014, into evidence. The T-Mobile cell phone was
found on Bruce’s person when he was arrested. According to the
State, Exhibit 33 detailed a series of text messages between CW
and Bruce, which corroborated CW’s testimony regarding the text
messages she sent and received when she went to the Ala Moana
Shopping Center.
After the State rested its case, Bruce orally moved for
a judgment of acquittal on his charges for promoting prostitution
in the first degree and sexual assault in the first degree. The
circuit court granted Bruce’s motion with regard to the sexual
assault charge. The circuit court granted in part and denied in
part Bruce’s motion with respect to his charge of promoting
prostitution in the first degree, finding that “there’s
sufficient evidence of promoting prostitution in the second
degree, but not in the first degree.”
Similarly, McKinley moved for a judgment of acquittal
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on all of his charges. The circuit court granted the motion with
respect to his kidnapping charge, but denied it as to all of the
other charges.
Stewart testified on behalf of McKinley. Much of her
testimony conflicted with CW’s testimony. She testified that she
learned about the prostitution scene in Waikîkî through CW, and
that she and CW occasionally prostituted together on a voluntary
basis. Stewart stated that she and CW kept their earnings from
going on dates, but that CW sometimes gave a small portion of her
earnings to Stewart and McKinley to help cover the costs of the
hotel room. Stewart attested that McKinley was her boyfriend,
not her pimp, and that McKinley did not play a role in Stewart’s
or CW’s involvement in prostitution. Stewart testified that
while she was aware of the incident in which McKinley beat CW, it
was her understanding that McKinley had beaten CW in response to
Stewart’s complaints that CW had stolen her money, and that CW
was not covering her share of the hotel room costs.
Bruce testified on his own behalf. His testimony
drastically diverged from CW’s testimony. Bruce attested that he
was not the person whom CW had identified as “L-Way.” Rather,
Bruce asserted, L-Way was CW’s boyfriend, who also went by the
name “Lando.” Bruce testified that he met Lando in Hawai#i, and
that they had been acquaintances since December 2013. Bruce
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stated that he met CW in April 2014 while he was walking back to
the hostel with his son.
Bruce asserted that from December 2013 to June 2014,
Ortegon, the mother of his child, had his T-Mobile cell phone in
her possession and was using it during that time. Accordingly,
he testified that from December 2013 to June 2014, the text
messages sent to and received by the T-Mobile cell phone were not
between himself and CW. Bruce testified that the text messages
from December 2013 to June 2014, including those sent and
received during April 2014, were between Ortegon and Lando. To
Bruce, these text messages supported that Bruce was not L-Way.
Bruce denied managing CW as a prostitute and denied
being CW’s pimp. Bruce testified that he never had sexual
intercourse with CW, and that he did not promote or pay to
promote CW’s Backpage advertisement. Bruce further attested that
CW did not live at the hostel with him or his family, that he did
not rent any extra rooms to facilitate prostitution activities,
and that he was unaware of whether any prostitution activities
were taking place at the hostel. Bruce asserted that he did not
set the prices for CW’s sexual services, that he did not have CW
walk the streets as a prostitute, and that he never made money
off of CW by way of prostitution.
Bruce testified that he took a video recording of the
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incident where McKinley beat CW at the Pagoda. Bruce attested
that he took the video because he wanted to show it to Lando,
CW’s boyfriend, and that he in fact did share the video with
Lando.
Following jury instructions, the parties presented
their closing arguments. Bruce’s counsel argued that the
evidence demonstrated that he was not L-Way, that he was not her
pimp, and that he had never managed her as a prostitute.
McKinley’s counsel argued that the jury could infer, based upon
the evidence, that CW had engaged in prostitution voluntarily,
and that McKinley did not force her to do prostitution. He
argued that the video tape of McKinley beating CW did not
demonstrate that he had compelled her to engage in prostitution
against her will, as the evidence indicated that McKinley had
beaten CW because he was fed up with living with a roommate who
he believed was stealing money from his girlfriend, Stewart.
In rebuttal closing argument, the prosecutor countered:
So this whole thing about [CW] lying and can’t
be believed, well, the only people who can’t be
believed was Keshawn Stewart and Mr. Bruce. The fact
of the matter is that they treated her like she was
property.
. . . .
. . . They didn’t see her as anything more than a
piece of property to pass around, to mistreat, to
humiliate, intimidate, beat, and force. That is how
they viewed her, that is how they treated her. But
she’s not a piece of property. I mean, she’s
somebody’s daughter, she’s somebody’s friend, she’s a
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mother, she’s a woman, she is a person, and she
deserves to be treated properly[.]
(Emphases added.) As to the prosecutor’s comment that CW was
“somebody’s daughter, she’s somebody’s friend, she’s a mother,
she’s a woman, she is a person,” McKinley objected on grounds
that “this is a little bit far beyond arguing the evidence.”
Bruce did not join McKinley’s objection, nor did he raise one of
his own. McKinley’s objection was overruled.
On January 26, 2015, the jury found Bruce guilty of
promoting prostitution in the second degree. The jury found
McKinley guilty of promoting prostitution in the first degree and
not guilty of sexual assault in the first degree. The circuit
court2 entered its final judgment of conviction and sentence for
both Bruce and McKinley on May 5, 2015. On the same day, the
circuit court entered its mittimus and warrant of commitment to
jail with respect to McKinley.
B. ICA Proceedings
On appeal, both Bruce and McKinley argued, inter alia,3
2
The Honorable Paul B.K. Wong signed both final judgments and the
mittimus and warrant of commitment to jail.
3
Bruce also raised several other points of error on appeal, including:
(1) whether the evidence at trial was sufficient to support his conviction;
(2) whether the circuit court abused its discretion in allowing Detective
Derek Stigerts (Detective Stigerts) to testify as an expert on the commercial
sexual exploitation of women; (3) whether the State committed prosecutorial
misconduct in characterizing the case as a “sex trafficking” case and alluding
to the practice of slavery; and (4) whether the circuit court abused its
discretion by allowing Ortegon to assert her Fifth Amendment privilege against
(continued...)
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that the prosecutor engaged in prosecutorial misconduct when she
stated: “But she’s not a piece of property. I mean, she’s
somebody’s daughter, she’s somebody’s friend, she’s a mother,
she’s a woman, she is a person, and she deserves to be treated
properly.” Bruce acknowledged that he did not object to the
remarks at trial, and that therefore, “the appellate court must
determine whether the misconduct constituted plain error that
affected Bruce’s substantial rights.”
Relying on State v. Rogan, 91 Hawai#i 405, 984 P.2d
1231 (1999), Bruce argued that by referencing CW’s gender and
familial status, the prosecutor improperly appealed to the jury’s
passions and prejudices, invited the jurors to place themselves
in CW’s position and render the verdict based on their emotions
rather than the evidence, and injected irrelevant issues into
3
(...continued)
self-incrimination under the United States Constitution. McKinley similarly
challenged whether Detective Stigerts was qualified to testify as an expert
witness, and asserted that the prosecutor committed misconduct in
characterizing the case as a “sex trafficking” case and in referencing the
practice of slavery during the State’s closing argument.
In brief, the ICA held: (1) the State presented sufficient evidence to
support that Bruce was guilty of promoting prostitution in the second degree,
(2) the circuit court did not abuse its discretion in qualifying Detective
Stigerts as an expert and allowing Detective Stigerts to testify as an expert
witness, (3) the prosecutor did not commit prosecutorial misconduct during
closing argument either when she described the case as a “sex trafficking
case,” or when she alluded to the practice of slavery, and (4) the circuit
court did not abuse its discretion when it did not compel Ortegon to testify
on Bruce’s behalf. On certiorari, the State has not raised any questions
pertaining to the ICA’s holdings on these points. Neither Bruce nor McKinley
filed a response to the State’s application for writ of certiorari to
challenge any of these rulings. Accordingly, we do not address any of these
issues. See Hawai#i Rules of Appellate Procedure Rule 40.1(d) (2014).
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their deliberations. Thus, Bruce contended that he was deprived
of a fair trial because the comments rose to the level of
prosecutorial misconduct, the State did not have a strong case
against Bruce, and no curative instruction was given. In his
appeal, McKinley advanced arguments that aligned with the
arguments that Bruce had made.
On October 20, 2016, the ICA issued a memorandum
opinion that vacated Bruce’s conviction and sentence and remanded
the case for a new trial. The ICA held that “based on the
Hawai#i Supreme Court’s analysis in Rogan, the State’s remarks,
when viewed in context, were improper and, thus, constituted
prosecutorial misconduct.” The ICA likened the comments in this
case to those made by the prosecutor in Rogan, and concluded that
“CW’s status as a daughter, friend, mother, and woman, while
perhaps supported by the evidence, was not a disputed fact at
trial and was not relevant to whether Bruce or McKinley did in
fact view or treat CW as a ‘piece of property.’” Therefore, to
the ICA, “the State’s comments about CW’s relationship to others
did not bolster the validity of the State’s theory of the case.”
The ICA also held that the prosecutor’s comments “were
meant to humanize CW in the eyes of the jury evoking sympathy for
her,” and “represented an implied invitation for the jury to
place themselves in CW’s position, or in the position of someone
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near to her, enticing the jury to render a decision based on
emotional appeal rather than on the evidence that proved Bruce’s
guilt.” Thus, the ICA held that the comments constituted
prosecutorial misconduct.
The ICA then applied the three-prong harmless error
test for prosecutorial misconduct. The ICA ultimately concluded
that the prosecutor’s comments were not harmless beyond a
reasonable doubt because: (1) the prosecutor’s comments were
improper; (2) McKinley’s objection to the State’s comments was
overruled; and (3) the State did not present overwhelming
evidence against Bruce.
In a footnote, the ICA noted that although McKinley
objected to the prosecutor’s comments, Bruce did not join in the
objection. Observing that other jurisdictions have held that an
objection by one defendant preserves the issue for a co-
defendant’s appeal, even where the co-defendant does not join in
the objection at trial, the ICA held that “under the facts of
this case, McKinley’s objections to the State’s remarks
sufficiently preserved the issue for Bruce’s appeal.”
The ICA’s memorandum opinion resolving McKinley’s
appeal, filed on August 31, 2016, similarly concluded that the
disputed comments by the prosecutor constituted misconduct. The
ICA’s analysis in McKinley’s case was substantially identical to
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the analysis it employed in Bruce’s case. Accordingly, the ICA
vacated McKinley’s conviction and sentence and remanded his case
for a new trial.
III. STANDARD OF REVIEW
A. Prosecutorial Misconduct
“Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
‘whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.’” Rogan,
91 Hawai#i at 412, 984 P.2d at 1238 (quoting State v. Sawyer, 88
Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)).
IV. DISCUSSION
We are presented with the following three questions on
certiorari: (1) whether the ICA erred in holding that McKinley’s
objection sufficiently preserved the issue on appeal for Bruce,
who neither joined McKinley’s objection nor raised one of his
own; (2) whether the ICA misapplied this court’s opinion in State
v. Rogan to the present case; and (3) whether the ICA’s analyses
resolving Bruce and McKinley’s appeals are obviously inconsistent
with its own opinion in State v. Kiakona, 110 Hawai#i 450, 134
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P.3d 616 (App. 2006).4 Each is addressed in turn.
A. McKinley’s objection to the prosecutor’s remarks
sufficiently preserved the issue for Bruce’s appeal.
The State contends that the ICA erred by holding that
McKinley’s objection to the State’s remarks adequately preserved
the issue for Bruce’s appeal. The State argues that assuming
that one defendant’s objection applies to all defendants in cases
where multiple defendants are being tried is impracticable, as
each defendant may have different trial strategies, and one
defendant’s objection may not necessarily benefit the other’s
case. The State also emphasizes that a defendant only needs to
utter two words, “I join,” to indicate whether he or she is
joining in the co-defendant’s objection and to preserve the issue
on appeal.
The State’s argument presents the following issue of
first impression: whether an objection by one defendant
preserves the issue on appeal for a co-defendant who does not
raise his or her own objection or join the defendant’s objection.
Courts in other jurisdictions have adopted one of two
approaches to resolve this issue. Several courts have held that
when an objection by one co-defendant inures to the benefit of
4
The State filed an application for writ of certiorari in each of the
defendant’s appeals, separately challenging the ICA’s memorandum opinions in
each. We accepted both applications and consolidated McKinley’s and Bruce’s
cases for oral argument and disposition on certiorari.
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both defendants, the other co-defendant’s failure to object or
join in the objection does not waive the issue on appeal. In
Williams v. United States, defendant Melonee Bryant (Bryant)
allegedly helped an undercover police officer purchase crack
cocaine from defendant Gualyn Williams (Williams) by using the
officer’s pre-recorded cash to purchase three bags of crack
cocaine; she gave one bag to the officer, and kept two for
herself. 966 A.2d 844, 845-46 (D.C. 2009). After Bryant left,
the officer performed a field-test on the substance in the bag,
which indicated the presence of crack cocaine. Id. Both
defendants were later arrested and charged with distributing
cocaine to an undercover police officer. Id. at 845-46.
Bryant and Williams were tried together, and the
government sought to admit the report of a DEA-7 chemist, which
confirmed that the recovered substance was cocaine. Id. at 847.
Over Bryant’s objection that the report’s admission would violate
her constitutional right to confrontation, the trial court
admitted the report into evidence. Id. Williams did not join
Bryant’s objection, nor did he raise an objection of his own.
See id. On appeal, the government argued that Williams’ failure
to raise a constitutional objection at trial waived the issue on
appeal, thus requiring Williams to show plain error in order for
the court to consider it. Id.
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The D.C. Court of Appeals rejected the government’s
position. Id. The Williams court acknowledged that an objection
made by one co-defendant could preserve the issue on appeal for
another co-defendant when the objection applies to the latter’s
situation and inures to his or her benefit. Id. Observing that
the government did not proffer any evidence to indicate that
Williams “was thinking tactically, and was not just asleep at the
switches, when Bryant forcefully challenged the admission of the
chemist’s report without accompanying testimony,” the court held
that Bryant’s objection sufficiently preserved the confrontation
issue for Williams’ appeal. Id. at 847-48. On this point, the
court concluded that “[b]ecause the judge was given full
opportunity to weigh the constitutional objection, and the
prosecution a full chance to argue for admissibility, justice
would not be served by holding Williams to near-forfeiture of the
claim in circumstances where we see no plausible tactic behind
his attorney’s silence.” Id. (citation omitted). See also
People v. Griffin, 597 N.W.2d 176, 185 n.4 (Mich. App. 1999)
(observing that despite the defendant’s failure to object,
“because defendant’s codefendant raised the objection and the
ruling . . . affected both defendants, we here decline to regard
the technicality of defendant’s lawyer’s failing to join in the
objection as failing to preserve this issue”), abrogated on other
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grounds by People v. Thompson, 730 N.W.2d 708 (Mich. 2007);
People v. Wilson, 187 P.3d 1041, 1062-63 (Cal. 2008)
(acknowledging that an objection by a co-defendant may
sufficiently preserve an issue on appeal for the defendant when
the trial court’s treatment of the co-defendant’s objection would
cause the defendant to reasonably believe that making his own
objection would be futile); United States v. Garcia, 291 F.3d
127, 140 (2nd Cir. 2002) (“We presume that the objection of a co-
defendant is an objection for all defendants, and it is
sufficient to preserve the issue for appeal.”).
By contrast, other courts require a defendant to
expressly join a co-defendant’s objection, or independently raise
his or her own objection, to preserve an issue on appeal. In
Jackson v. State, defendants Jackson and Antonio Harris (Harris)
were charged with malice murder for shooting and killing a victim
while trying to rob her at gunpoint. 532 S.E.2d 674, 676 (Ga.
2000). At trial, the government sought to admit the victim’s
hospital records, in which Dr. Aru Giorgio (Dr. Giorgio) opined
about the trajectory of a bullet that had hit the victim. Id.
While Jackson raised a general objection to the
admission of the hospital records into evidence, which Harris
joined, neither initially raised a specific ground to support the
general objection. Id. After the trial court pointed out that
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neither Harris nor Jackson had specified the ground upon which
they were objecting, Harris stated that he was objecting on the
ground that Dr. Giorgio was not qualified as an expert on bullet
trajectories. Id. Jackson did not join Harris’ objection, nor
did he offer his own specific ground for objecting. Id. The
trial court overruled Harris’ objection and admitted the medical
records into evidence. Id.
On appeal, Jackson argued that the trial court should
not have admitted the medical records because Dr. Giorgio was not
qualified to testify as an expert on bullet trajectories. Id. at
676-77. The Supreme Court of Georgia held that “[t]his argument
was not properly raised and preserved below” because “Jackson did
not join his co-defendant when his co-defendant offered a reason
for objecting to the admission of the medical record.” Id. at
677. See also Linnon v. Commonwealth, 752 S.E.2d 822, 828 (Va.
2014) (holding that “one party may not rely on the objection of
another party to preserve an argument for appeal without
expressly joining in the objection”); Gavlock v. Coleman, 493
N.W.2d 94, 98 (Iowa Ct. App. 1992) (holding that an “issue was
not preserved for appeal because defendant failed to make the
proper objection or join in the objection raised at trial” by his
co-defendant); United States v. Harris, 104 F.3d 1465, 1472 (5th
Cir. 1997) (“Having chosen not to object or at least to join his
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codefendant’s objection, the appellant did not preserve the issue
for appeal[.]”).
Upon consideration of both possible approaches, we
hereby adopt the former approach over the latter for two reasons.
First, to require all defendants, especially in cases where
numerous defendants are being tried together, to chime in and
affirmatively join in a co-defendant’s objection, or object
individually to the same issue, would impose upon courts a
duplicative litany of redundant procedures that would disrupt the
flow of the proceedings. Second, justice would not necessarily
be served if a criminal defendant were denied the opportunity to
raise an issue on appeal due to a mere technical error when the
objection raised at trial also affected the defendant’s case.
“[T]he purpose of requiring a specific objection is to inform the
trial court of the error.” State v. Long, 98 Hawai#i 348, 353,
48 P.3d 595, 600 (2002). When a co-defendant raises an
objection, this purpose is served, regardless of whether the
other defendant joins the co-defendant’s objection or objects
independently. Therefore, we hold that an objection by a co-
defendant at trial sufficiently preserves the issue on appeal for
another defendant tried in the same proceeding when the objection
also applies to the non-objecting defendant’s case, even if the
non-objecting defendant does not join in the co-defendant’s
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objection or object independently.
Applying this principle to the present case, McKinley
objected to the prosecutor’s remarks during the State’s rebuttal
closing argument. The prosecutor’s comments responded to remarks
that were made during both defendants’ closing arguments.
Therefore, McKinley’s objection also applied to Bruce’s case and
inured to Bruce’s benefit. Accordingly, McKinley’s objection
adequately preserved the issue for Bruce’s appeal, and plain
error review was not required.
B. This court’s opinion in State v. Rogan is distinguishable
and inapplicable to the present case.
The State highlights that “[t]he analysis and holding
of Rogan, specifically, was based on the use of race in
argument.” Accordingly, the State contends that because the
comments in the present case did not relate to CW’s race, and
because the remarks did not similarly inflame the passion and
prejudices of the jury as the comment made in Rogan, the ICA
erred in relying on Rogan.
In Rogan, the defendant was charged with three counts
of sexual assault in the first degree and five counts of sexual
assault in the third degree. 91 Hawai#i at 409, 984 P.2d at
1235. The complaining witness, who was twelve years old at the
time of the alleged offense, had invited the defendant to her
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home while her parents were out of the house. Id. After going
to the complaining witness’ sister’s bedroom to listen to music,
the defendant allegedly subjected the complaining witness to
various forms of sexual contact and penetration until her mother
entered the room after returning home. Id.
During rebuttal closing argument, the prosecutor in
Rogan made the following comment:
There was one thing [that defense counsel mentioned]
about, you know, it was the parents who wanted the
conviction and somehow she was coached. Yeah, you can
bet the parents wanted a conviction. This is every
mother’s nightmare. Leave your daughter for an hour
and a half, and you walk back in, and here’s some
black, military guy on top of your daughter. That’s
what she’s saying. . . .
Id. at 412, 984 P.2d at 1238 (alterations in original). Defense
counsel objected to the comment as an improper appeal to racism,
but the trial court overruled the objection. Id.
This court held that the prosecutor’s comment was an
inflammatory reference to Rogan’s race and amounted to a
particularly egregious form of misconduct. Id. at 414-15, 984
P.2d at 1240-41. The Rogan court observed that “courts
throughout the country have consistently condemned appeals to
racial prejudice during closing argument.” Id. at 413, 984 P.2d
at 1239. Accordingly, this court held that:
Because there was no dispute as to the identity of the
perpetrator in this case, Rogan’s race was not a
legitimate area of inquiry inasmuch as race was
irrelevant to the determination of whether Rogan
committed the acts charged. . . . Indeed, the deputy
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prosecutor’s comment had the potential of distracting
the jury from considering only the evidence presented
at trial. It is therefore inescapable that the deputy
prosecutor’s reference to Rogan as a “black, military
guy” was an improper emotional appeal that could
foreseeably have inflamed the jury.
Id. at 414, 984 P.2d at 1240. This court also held that “[t]he
deputy prosecutor’s inflammatory reference to Rogan’s race was
further compounded by the statement that the incident was ‘every
mother’s nightmare,’ which was a blatantly improper plea to evoke
sympathy for the Complainant’s mother and represented an implied
invitation to the jury to put themselves in her position.” Id.
We agree with the State insofar as we believe that
Rogan is distinguishable from this case in two key respects.
First, compared to the prosecutor’s comments in Rogan, the
comments here did not constitute an improper appeal to the jury’s
emotions that bore no objectively legitimate purpose. Viewed in
context, the prosecutor’s comments concluded the State’s
overarching theme and theory of the case, that Bruce and McKinley
had treated CW like a piece of property, by asserting that
treating a person in the manner CW had been treated is improper.
Second, unlike the prosecutor’s comments in Rogan, the
prosecutor’s remarks in the present case did not represent an
implied invitation to the jury to put themselves in CW’s
position. As discussed further in section IV.C, infra, when
considered in context, the prosecutor’s remarks are more properly
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viewed as a part of the State’s argument that despite defense
counsels’ assertions in closing argument to the contrary, the
evidence sufficiently illustrated that Bruce had facilitated and
benefited from CW’s prostitution activities, and that McKinley
had compelled CW to engage in prostitution against her will.
Because Rogan is significantly distinguishable from
the present case, Rogan is inapposite and does not apply.
Accordingly, we hold that the ICA erred to the extent that it
relied on Rogan in support of its holding.
C. The prosecutor’s comments did not rise to the level of
misconduct.
Having argued that Rogan is inapplicable to the present
case, the State contends that State v. Kiakona applies and
mandates a different outcome because the State’s comments had a
legitimate bearing on the central issues in this case. The State
also contends that the remarks, considered against the backdrop
of the State’s closing argument as a whole and the State’s theory
of the case, did not invite the jury to place themselves in CW’s
position, or the position of someone near to her, and decide the
case based on emotion rather than evidence.
In Kiakona, the defendant was charged with terroristic
threatening in the first degree in connection with a road rage
incident. 110 Hawai#i at 451-52, 134 P.3d at 617-18. The
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complaining witnesses were two tourists who had, according to the
defendant, failed to observe a yield sign and in doing so, cut
off the defendant’s vehicle. Id. One of the complaining
witnesses testified that the defendant chased them, tried to run
them off the road several times, drove along the side of them,
and ran up on their bumper. Id. at 453-54, 134 P.3d at 619-20.
During closing argument, the prosecutor referred to the
complaining witnesses as “tourists” and “haoles” several times.
See id. at 456-57, 134 P.3d at 622-23. For example, he said:
That’s why [the defendant’s] here in court, his own
arrogance, his own attitude he says the people in the
valley have because it is his turf and these tourists
come over there and they cause trouble and they need
to be taught a lesson. That is what this case is
about. He’s trying to teach these tourists a lesson .
Id. at 456, 134 P.3d at 622. On appeal, the defendant argued
that the prosecutor committed misconduct in describing the
complaining witnesses as “haoles” and “tourists” throughout the
State’s closing argument. Id. at 457-59, 134 P.3d at 623-25.
The Kiakona court held that the prosecutor’s comments
did not constitute an improper appeal to “racial, religious,
ethnic, political, economic, or other prejudices of the jurors,”
nor did they “lack ‘a legitimate bearing on some issue in the
case, such as identification by race.’” Id. at 459, 134 P.3d at
625 (quoting State v. Shabazz, 98 Hawai#i 358, 376, 48 P.3d 605,
623 (App. 2002)). The ICA observed that “the central issue at
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trial was criminal intent--whether Defendant went after [the
complaining witnesses] in order to terrorize them or merely
followed them in order to settle details the alleged accident
entailed.” Id. The court also recognized that “references to
‘turf,’ ‘locals’ and ‘haole tourists’ crystallized the motive
behind Defendant’s criminal intent--his resentment of Caucasian
tourists and their supposedly highhanded ways in the place where
he was born and raised.” Id. Accordingly, the Kiakona court
held: “Where, as here, references to status had a fundamental
bearing on the central issue in the case, they were not
improper.” Id.
In the present case, the central issues at trial were
whether Bruce had facilitated and profited from CW’s involvement
in prostitution, and whether McKinley had compelled CW to engage
in prostitution against her will. Conflicting evidence was
presented on both issues, as discussed in section II.A, supra.
We acknowledge that when viewed in a vacuum, the
prosecutor’s comments could be interpreted as appealing to the
jury’s passions and prejudices. However, as in Kiakona, the
prosecutor’s comments, analyzed in context, had a fundamental
bearing on the primary issues in this case: whether Bruce had
facilitated and profited from CW’s prostitution activities, and
whether McKinley had forced CW to involuntarily engage in
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prostitution. During Bruce’s closing argument, defense counsel
argued that the evidence demonstrated that he was not L-Way, that
he never acted as CW’s pimp, and that he had never benefited from
her activities as a prostitute. In McKinley’s closing argument,
defense counsel argued that CW had voluntarily engaged in
prostitution, and that McKinley had beaten her because he was
exasperated with living with a free-loading roommate that he
believed was stealing money from one of his other roommates.
In rebuttal closing argument, the prosecutor responded:
So this whole thing about [CW] lying and can’t
be believed, well, the only people who can’t be
believed was Keshawn Stewart and Mr. Bruce. The fact
of the matter is that they treated her like property.
. . . .
. . . They didn’t see her as anything more than a
piece of property to pass around, to mistreat, to
humiliate, intimidate, beat, and force. That is how
they viewed her, and that is how they treated her.
But she’s not a piece of property. I mean, she’s
somebody’s daughter, she’s somebody’s friend, she’s a
mother, she’s a woman, she is a person, and she
deserves to be treated properly[.]
(Emphases added.)
Considered in context, it appears that the challenged
comments were made at the conclusion of the prosecutor’s broader
argument that the evidence presented at trial amply demonstrated
that Bruce and McKinley treated CW like a piece of property--a
mere object that they could pass around, control, and use to
generate revenue. Accordingly, the prosecutor’s comments summed
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up the facts that, in the State’s view, supported Bruce’s and
McKinley’s charges, and argued that the jury should find both of
them guilty despite defense counsels’ arguments to the contrary
during their closing arguments. Properly viewed as such, the
prosecutor’s remarks did not invite the jurors to place
themselves in CW’s, or any other person’s, position, nor did the
remarks constitute an improper plea to the jury’s passions and
prejudices. Consequently, the prosecutor’s comments in this case
did not rise to the level of misconduct.
Moreover, while the prosecutor’s comments may have cast
CW in a sympathetic light, the comments were still not improper
because they did not detract from the main point of the otherwise
meritorious argument--that the evidence showed that Bruce and
McKinley had treated CW like a piece of property. See State v.
Ceballos, 832 A.2d 14, 38 (Conn. 2003) (holding that the
prosecutor’s comments about a child being the “perfect victim”
for abuse due to her difficult childhood and poor living
conditions were not improper appeals to the jury’s emotions
because while the comments cast the complaining witness in “an
undoubtedly sympathetic light,” they did not detract from the
main point of the argument). At most, in making these comments,
the prosecutor argued that as a human being, CW did not deserve
to be treated like a piece of property, and that the way Bruce
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and McKinley treated CW was unacceptable.
We hold that, when considered in context, the
prosecutor’s comments were relevant to the central issues at
trial. See Kiakona, 110 Hawai#i at 459, 134 P.3d at 625. The
comments in the present case did not constitute prosecutorial
misconduct. Accordingly, the ICA erred in holding that the
comments were irrelevant to whether Bruce and McKinley were
guilty of the offenses with which they were charged, amounted to
an invitation for the jurors to decide the case based on their
emotions rather than on the evidence presented at trial, and
constituted an improper plea to the jurors’ passions and
prejudices.
V. CONCLUSION
For the reasons stated above, as to Bruce, we reverse
the ICA’s November 17, 2016 judgment on appeal filed pursuant to
its October 20, 2016 memorandum opinion, which vacated and
remanded the circuit court’s judgment of conviction and sentence
entered on May 5, 2015. With respect to McKinley, we reverse the
ICA’s September 29, 2016 judgment on appeal filed pursuant to its
August 31, 2016 memorandum opinion, which vacated and remanded
the circuit court’s judgment of conviction and sentence and
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mittimus and warrant of commitment to jail, both of which were
filed on May 5, 2015.
Sonja P. McCullen /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Benjamin R.C. Ignacio
for respondent /s/ Sabrina S. McKenna
Justin McKinley
/s/ Richard W. Pollack
Jon N. Ikenaga
for respondent /s/ Michael D. Wilson
Lawrence L. Bruce
34