State v. David ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2020
08:13 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PETER DAVID, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC-11-1-000050)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)
I. Introduction
Defendant-Appellant Peter David (David) appeals from
the February 28, 2019 Judgment of Conviction and Sentence entered
by the Circuit Court of the First Circuit (Circuit Court).1 On
January 12, 2011, Plaintiff-Appellee State of Hawai#i (State)
charged David by Complaint with: murder in the second degree for
the death of his cousin, Santhony Albert (Albert) in violation of
Hawaii Revised Statutes (HRS) 707-701.5 and 706-656 (Count I);
and assault in the second degree as to Torokas Kikku (Kikku) in
violation of HRS 707-711(1)(d) (Count II).
On October 13, 2011, after a jury trial,2 David was
found guilty of the included offenses of manslaughter and third-
degree assault. Following a successful appeal, David's
conviction and sentence were vacated and the case was remanded
1
The Honorable Paul B.K. Wong presided.
2
The Honorable Randal K.O. Lee presided over the first jury trial.
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for a new trial. State v. David, 141 Hawai#i 315, 409 P.3d 719
(2017) (improper admission of defendant's bad character evidence
exceeded the scope of rebuttal testimony and required a new
trial).
After a second jury trial on the charges of
manslaughter for Count I and assault in the third degree for
Count II, David was found guilty in Count I of the lesser
included offense of assault in the first degree in violation of
HRS § 707-710 (1993),3 and in Count II of assault in the third
degree in violation of HRS § 707-712(1)(a) (1993).4 The Circuit
Court sentenced David to an indeterminate term of imprisonment of
ten years for Count I and thirty-days of jail for Count II, to
run concurrently.
On appeal, David contends that the Circuit Court erred
in (1) excluding blood-alcohol concentration evidence from the
jury, and (2) denying David's motion for mistrial because of
alleged prosecutorial misconduct.
For the reasons set forth below, we affirm.
II. Discussion
A. Admissibility of Albert's
Blood-Alcohol Concentration Level
On November 28, 2018, the Circuit Court heard the
parties' motions in limine. The State sought exclusion of the
toxicology report for Albert and all references to the presence
of alcohol in Albert's blood. David objected to the State's in
limine request and argued, inter alia, that the results of the
toxicology report were relevant and necessary to corroborate his
3
HRS § 707-710 (1993) provides in relevant part:
§707-710 Assault in the first degree. (1) A person commits
the offense of assault in the first degree if the person
intentionally or knowingly causes serious bodily injury to another
person.
4
HRS § 707-712(1)(a) (1993) provides:
§707-712 Assault in the third degree. (1) A person commits
the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes bodily
injury to another person[.]
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claim of self-defense that Albert was highly intoxicated and was
the first aggressor. The Circuit Court granted in part and
denied in part the State's motion in limine, holding that the
toxicology result establishing the presence of alcohol in
Albert's blood was admissible, but Albert's blood-alcohol
concentration level was not admissible.
On December 5, 2018, the Circuit Court revisited the
issue following an oral motion to reconsider and ruled as
follows:
THE COURT: Again, after taking judicial notice of the
records, files, and proceedings herein, the Court
respectfully denies Defendant's request to reconsider its
previous in limine ruling regarding the blood alcohol
number. The Defense is able to introduce and cross-examine
witnesses regarding the presence of alcohol, not just at the
scene and consumed by the decedent, but may cross-examine
the medical examiner regarding the toxicology results, that
there was the presence of alcohol in the decedent's blood.
The actual number does provide the opportunity for the
jury to speculate and perhaps even be confused because
without any expert testimony to explain the meaning of the
number, it is, in this Court's opinion, speculative. As
indicated by [the Deputy Prosecuting Attorney], alcohol
affects people differently. In addition to tolerance of
individuals, their weight and their metabolic makeup also
affect the ability to process alcohol in a person's system
and therefore minimize or enhance the effect of any
particular blood alcohol on that person. So without any
anchoring testimony to explain the number, it is in fact
speculative.
And with respect to common understanding as to the
legal limit for driving, while .08 is the legal limit
established by the legislature to delineate the line in the
sand as to whether or not a person is operating a vehicle
under the influence of an intoxicant, it really doesn't
point out to the amount of impairment that person is
actually experiencing. At one point in time, the legal limit
not too long ago was .10, and for other states, it has been
a different number, and again, that number, without some
anchoring testimony, is speculative and does not add
anything to the jury's consideration of the case.
So based on [Hawaii Rules of Evidence] Rule 403, your
request is respectfully denied.
(Emphasis added).
On appeal, David contends that the Circuit Court erred
in excluding evidence of Albert's blood-alcohol concentration
level of .252 from the jury because it was critical to his self-
defense in asserting Albert was the aggressor and David was
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justified in using deadly force.
Hawaii Rules of Evidence Rule 403 provides that,
"[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Whether relevant evidence
is admissible under Rule 403 is a determination well-suited to a
trial court's exercise of discretion because it requires a "cost-
benefit calculus" and a "delicate balance between probative value
and prejudicial effect." Kaeo v. Davis, 68 Haw. 447, 454, 719
P.2d 387, 392 (1986) (internal quotation marks and citations
omitted). "[T]he traditional abuse of discretion standard should
be applied in the case of those rules of evidence that require a
'judgment call' on the part of the trial court." State v.
Cordeiro, 99 Hawai#i 390, 404, 56 P.3d 692, 706 (2002) (citation
omitted). "An abuse of discretion occurs when the court clearly
exceeds the bounds of reason or disregards rules or principles of
law to the substantial detriment of a party litigant." State v.
St. Clair, 101 Hawai#i 280, 286, 67 P.3d 779, 785 (2003) (quoting
Cordeiro, 99 Hawai#i at 404, 56 P.3d at 706).
David cites to State v. Clark, 83 Hawai#i 289, 926 P.2d
194 (1996) and contends that an expert witness is no longer
necessary to explain blood-alcohol concentration and its effects
on a person because the effects of alcohol and an individual's
blood-alcohol concentration have become common knowledge. David
also argues that State v. DeLeon, 131 Hawai#i 463, 319 P.3d 382
(2014) is not applicable in this case because Albert only
ingested alcohol and there were no illicit drugs in his system.
David also cites several out-of-state decisions to support his
contention that it is reversible error to exclude evidence of a
decedent's blood-alcohol concentration level where the defendant
argues self-defense.
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First, David misstates the holding in Clark and Clark
is not dispositive in this case. The issue in Clark was whether
an expert in domestic violence, who was not familiar with the
facts in the case and who had not interviewed either the victim
or the defendant, could testify generally with respect to
domestic violence and domestic violence victims, particularly
that it is not uncommon for victims of domestic violence to
recant allegations of abuse. 83 Hawai#i at 298, 926 P.2d at 203.
The Hawai#i Supreme Court rejected the defendant's argument that
"absent a determination by an expert that [the alleged victim]
was in fact suffering from symptoms associated with domestic
violence," expert testimony regarding the recantation phenomenon
in domestic violence cases was irrelevant. Id. at 299, 926 P.2d
at 204. Rather, the supreme court in Clark held that "it was
appropriately left to the jury to determine whether [the alleged
victim's] behavior was consistent with the behavior described by
[the expert]." Id. Here, the issue is not akin to the issue in
Clark. Rather, the Circuit Court pointed out that while it might
be common knowledge that alcohol could affect behavior, that
knowledge does not extend to how blood-alcohol concentration
levels correspond to certain behaviors and impairment in an
individual. The Circuit Court thus reasoned that without expert
or "anchoring" testimony, the meaning of the blood-alcohol
concentration level or number would be speculative.
Second, David makes a distinction without a difference
with regard to his reliance on the decision in DeLeon. In
DeLeon, the defendant was charged with, inter alia, Murder in the
Second Degree and asserted self-defense in shooting the decedent.
The Hawai#i Supreme Court held that the trial court plainly erred
in excluding expert testimony on cocaine use, the decedent's
"cocaine level" at the time of the shooting, and "the probable
effects of cocaine on [the decedent] at the time of the
shooting[.]" DeLeon, 131 Hawai#i at 465, 482, 486, 319 P.3d at
384, 401, 405. Nothing in DeLeon supports David's contention
that expert testimony is not necessary to explain the
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significance of blood-alcohol concentration levels on an
individual. To the contrary, in DeLeon, expert testimony had
been admitted to explain, inter alia, how the ranges in blood-
alcohol concentration levels correlated to certain symptoms,
behaviors, and impairment. Id. at 474-75, 319 P.3d at 393-94.
Finally, we conclude that the out-of-state cases David
cites are distinguishable. In Cromartie v. State, 1 So. 3d 340,
342 (Fla.Dist.Ct.App. 2009), the defendant was convicted of
manslaughter and, on appeal, the District Court of Appeal of
Florida held the trial court had reversibly erred in excluding
evidence of the victim's blood-alcohol level. However, in
Cromartie, the court noted that the excluded evidence was
critical to the defendant's self-defense theory because the
defendant's testimony and statement to police about the
decedent's aggressive behavior were not corroborated by other
witnesses. Id. at 343. Further, it appears there was no other
evidence as to the decedent's consumption of alcohol on the day
of the incident.
In Durrett v. Commonwealth, 2015 WL 4979723 (Ky. 2015),
the defendant was charged with murder for shooting the decedent
and claimed self-defense. The trial court allowed the medical
examiner to testify that the decedent had consumed alcohol on the
day he died, but precluded testimony about toxicology results
showing the decedent had a .12% blood-alcohol content level. The
defendant was convicted and on appeal asserted that the trial
court had abused its discretion in excluding the decedent's
blood-alcohol concentration level. The defendant argued that:
not allowing this evidence prevented him from presenting a
complete and meaningful defense because it precluded him
from providing to the jury a means of assessing [the
decedent's] level of intoxication at the time of the
shooting, which would have provided additional insight into
[the decedent's] behavior and [defendant's] alleged belief
that [the decedent] posed an imminent threat when he shot
him.
Id. at *3. The Kentucky Supreme Court held that the decedent's
blood-alcohol concentration level "was relevant and could have
been admitted at trial[,]" but also noted that "trial courts
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wield substantial discretion in admitting or excluding evidence
at trial[.]" Id. at *5. Ultimately, the Kentucky Supreme Court
held that the exclusion of the decedent's .12% blood-alcohol
concentration level was not an abuse of discretion where, among
various other factors, evidence was admitted that the decedent
had been drinking alcohol which allowed for many of the same
inferences as the toxicology evidence. Id.
Thus, Cromartie and Durrett do not support David's
contention that the Circuit Court abused its discretion in
precluding Albert's blood-alcohol concentration level in this
case. Here, multiple witnesses testified that Albert had been
drinking alcohol from the previous day, January 1, 2011, and
continued drinking late into the night. For instance, Arlynn
Ewen (Ewen) testified that Albert arrived at about 8:00 p.m. at a
party near Gulick Avenue, that all the men were drinking and
Albert was drinking beer. Ewen further testified that around
9:00 p.m., she and others including Albert left the party and
went to another apartment, where the men, including Albert,
continued to drink beer. Ewen testified that after Chino Moses
(Moses) went to bed and Erick Sam had passed out in the hallway,
Albert and David continued drinking alcohol and appeared drunk.
It was on the ground floor near this second apartment where the
incident between David and Albert occurred. Kikku also testified
that she was at the first party on January 1, 2011, that when she
arrived after finishing work at 3:00 p.m. Albert was already
there, and that she saw, among others, David and Albert drinking
alcohol. According to Moses, the men were drinking beer and
vodka at the first party until the party ended around 8:00 or
9:00 p.m. Party goers including Albert then went to a separate
residence on Awanei Street in Waipahu to continue drinking and
partying. Moreover, a forensic pathologist who conducted an
autopsy on Albert testified that alcohol had been present in
Albert's blood. Further, David introduced evidence that on a
prior occasion in November 2008, Albert had yelled profanities at
a police officer and resisted arrest while he was intoxicated.
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Given the record in this case, there was extensive
evidence that Albert had been drinking alcohol prior to the
incident with David and also evidence of Albert's conduct in
November 2008, when he was allegedly intoxicated and arrested.
Therefore, excluding the evidence of Albert's blood-alcohol
concentration level did not clearly exceed the bounds of reason
or disregard rules or principles of law and was not substantially
detrimental to David's defense. We thus conclude that the
Circuit Court did not abuse its discretion in excluding the
evidence of Albert's blood-alcohol concentration level without an
expert witness.
B. Alleged Prosecutorial Misconduct
David argues the Circuit Court erred in denying his
motion for mistrial because the Deputy Prosecutor's misconduct
violated David's right to a fair trial. David contends the
Deputy Prosecutor engaged in misconduct by: (1) making improper
references to race that were designed to appeal to racial
prejudice; (2) intentionally misrepresenting the facts of the
case during rebuttal argument by referring to Albert as an
innocent man; and (3) incorrectly stating that the case involved
a murder weapon.
1. Alleged improper reference to race
For the first time on appeal, David challenges the
State's cross-examination of Honolulu Police Department Officer
Violet Williams (Officer Williams) and the Deputy Prosecutor's
reference to Officer Williams' testimony during rebuttal
argument. David cites the supreme court's opinion in State v.
Rogan, 91 Hawai#i 405, 984 P.2d 1231 (1999) and argues in his
opening brief:
the [Deputy Prosecutor], with focused precision, adduced
from Officer Williams that the 20 individuals fighting,
yelling and being unruly in a parking lot appeared to be of
the 'same or similar ethnic group.' This was irrelevant,
unnecessary and without any objectively legitimate basis
related to any issue in the case. The [Deputy Prosecutor]
went on to methodically elicit that the individuals had
'brown skin,' 'black hair,' 'dark eyes,' 'they all appeared
to be Pacific Islanders,' and 'they all appeared to be
people who may have hailed from Micronesia.' Again, there
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was no purpose, no issue and no relevance to any of the
foregoing details except to insinuate that the brown skin,
black hair, dark eyed, Pacific Islanders from Micronesia,
like [David], are drunken, violent, incredible and
dismissible because of their brown skin, dark eyes, black
hair, ethnic origin and race. This is supported by the
[Deputy Prosecutor's] rebuttal argument, which stated in
relevant part, 'Officer Williams arrested Santhony Albert
for swearing at her and touching her arm, to which the
prosecution simply shrugs its shoulders with a rhetorical
'so what'?' The clear statement made by the [Deputy
Prosecutor's] questioning and argument was that people of
this appearance and from this ethnic background like [David]
are drunken violent individuals who don't matter. And as to
[David's] case, defense and life –- 'so what?' He didn't
matter.
David's arguments fail to recognize the relevant
context for both the Deputy Prosecutor's cross-examination of
Officer Williams and the Deputy Prosecutor's rebuttal argument.
The charges against David in this case stem from an incident
between David and Albert on or about January 2, 2011. In his
defense case, David called Officer Williams to testify about the
previous incident on November 29, 2008, in which Albert was
arrested for Harassment. Before Officer Williams testified, the
jury was instructed that, if believed, the evidence about to be
received regarding Albert's prior arrest for Harassment may be
considered only on the issue of who was the first aggressor on
January 2, 2011. On direct examination, Officer Williams
testified that early in the morning of November 29, 2008, she
responded to a "fight call" at 1249 North School Street, which is
"at the Puerto Rican Hall," where there were about 20 males and
females yelling at each other in the parking lot and a male
swinging a bat towards the crowd. Officer Williams lost track of
the man with the bat as he ran toward the back of a building and
then, while she was instructing people to leave the parking lot,
Albert pushed her arm from behind and said "fuck you, you bitch."
Albert called her a "pig," continued to yell and swear, and
Officer Williams described his demeanor as "extremely irate, he
was yelling profanities, calling me slang names, just
uncooperative and disrespectful." Officer Williams further
testified that, based on her training and experience, Albert
appeared to be intoxicated and that she needed assistance in
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arresting him because he would not cooperate and refused to enter
the police vehicle.
The State then cross-examined Officer Williams and
David points to the following parts of the cross-examination:
[Q]: And, in fact, it's extremely dark at the Loi Kalo Mini
Park, isn't it?
[A]: It's pretty dimly lit, yes.
[Q]: There are no overhead lights in the park immediately
makai of Puerto Rican Hall; right?
[A]: I do not recall that there is lights, yes.
[Q]: And, in fact, Puerto Rican Hall because it's on that
downslope is not immediately under the streetlights on North
School Street?
[A]: Yes, sir.
. . .
[Q]: What did Santhony Albert look like that night, tell
us, how tall was he?
[A]: According to my report, sir, about five-five.
[Q]: So you don't have any personal recollection of this,
it's only based on your report?
[A]: Correct.
[Q]: What about his hair length, long or short?
[A]: Unknown, sir.
[Q]: Unknown again because it was ten years ago?
[A]: Yeah.
. . .
[Q]: Now, of these 20 individuals, did they, from your
experience as a police officer and experience patrolling
Kalihi, appear to be of the same or similar ethnic group?
[A]: Yes, sir.
[Q]: Brown skin?
[A]: Yes.
[Q]: Black hair?
[A]: Possibly, because it was dark.
[Q]: Dark eyes?
[A]: Yes.
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[Q]: They all appeared to be Pacific Islanders, didn't they?
[A]: Yes.
[Q]: In your experience they all appeared to be people who
may have hailed from Micronesia?
[A]: Correct.
[Q]: Now, with regards to this person with the bat, when
you arrived, this person just melted into the crowd; right?
[A]: Sort of stood out.
[Q]: Okay.
[A]: Yes.
[Q]: But after when you arrived, that person didn't stay,
that person --
[A]: That's correct, he ran.
[Q]: While you were at the scene, no one made a complaint
to you that they had been struck by a bat; right?
[A]: Correct.
[Q]: So, in fact, you lost sight of this person in the red
shirt?
[A]: Yes.
[Q]: Because there were all of these people there?
[A]:Yes.
David then points to the Deputy Prosecutor's rebuttal
argument referring to the testimony by Officer Williams, in which
the Deputy Prosecutor argued:
It is simply wrong for the defense to suggest that an
incident that happened on November 29, 2008, ten years ago
has any bearing on the fatal stabbing. Officer Williams
arrested Santhony Albert for swearing at her and touching
her arm, to which the prosecution simply shrugs its
shoulders with a rhetorical 'so what?' That has nothing to
do with the defendant's state of mind when he stabbed his
cousin. It has nothing to do with whether Santhony was the
aggressor or not.
(emphasis added).
As a threshold matter, we consider whether the actions of
the prosecutor sub judice did indeed constitute
prosecutorial misconduct. See, e.g., [State v. McGriff, 76
Hawai#i 148, 160, 871 P.2d 782, 794 (1994)] (first holding
that there was no prosecutorial misconduct, then considering
prejudice arguendo ); State v. Lincoln, 3 Haw. App. 107, 125,
643 P.2d 807, 820 (1982) ('Since we find that the
[prosecutor's] comments were not improper, we need not
address the question as to whether the [jury] instruction
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cured the problem that would have been created by an
improper comment.' (Footnote omitted.)).
State v. Kiakona, 110 Hawai#i 450, 458, 134 P.3d 616, 624
(App.2006).
We note that, "the Rogan court set forth principles
specifically applicable to appeals to racial prejudice during
closing argument." State v. Shabazz, 98 Hawai#i 358, 376, 48
P.3d 605, 623 (App.2002) (quoting Rogan, 91 Hawai#i at 413–14,
984 P.2d at 1239–40 (holding "references to race that do not have
an objectively legitimate purpose constitute a particularly
egregious form of prosecutorial conduct")) (internal quotation
omitted). Additionally, in Shabazz, this Court concluded that
"it matters little where and when in the trial improper
prosecutorial appeals to race prejudice occur. While such
remarks in closing arguments may be fresher and more memorable to
a deliberating jury, those made in opening statements can be an
infusion that imbrues and imbues the entire course." Id. at 378,
48 P.3d at 625.
Notwithstanding David's argument, we conclude that
neither the Deputy Prosecutor's cross-examination nor the
rebuttal argument were "contrived to stimulate racial prejudice."
Rogan, 91 Hawai#i at 415, 984 P.2d at 1241 (holding prosecutor's
statement that finding "some black, military guy on top of your
daughter" is "every mother's nightmare" was egregious
misconduct). A full review of Officer Williams' cross-
examination shows that the Deputy Prosecutor challenged her
recollection of the events of November 29, 2008, which occurred
in a dimly lit area 10 years prior to her testimony in the second
jury trial, and that the Deputy Prosecutor sought to establish
that Albert was not the man who had swung the bat and that there
were four other persons of interest and not Albert. The Deputy
Prosecutor's questions did not invite Officer Williams to make
any improper comments or insinuations based on race. Likewise,
the Deputy Prosecutor's rebuttal argument did not make any
insinuation based on David's race. Rather, the Deputy Prosecutor
asserted that the prior November 2008 incident involving Albert
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had no bearing on David's state of mind when he stabbed Albert in
this incident. Therefore, the Deputy Prosecutor's references to
race during the cross-examination of Officer Williams and the
Deputy Prosecutor's race-neutral comments during rebuttal
argument do not constitute prosecutorial misconduct.
2. Alleged misrepresentation of facts by referring
to Albert as an innocent man
David argues the Deputy Prosecutor materially
misrepresented the facts of the case by referring to Albert as an
"innocent man" with "innocent blood." David contends that the
Deputy Prosecutor's comments were factually incorrect because
Albert had injured David in a separate altercation earlier that
night which resulted in a cut on David's nose. David fails to
cite to any authority in support of his contentions.
The State's theory of the case was that David started
the fight and was not legally justified when he fatally stabbed
Albert. David's theory of the case was that Albert had been the
first aggressor while intoxicated and David had acted in self-
defense. During the State's closing argument, the Deputy
Prosecutor referred to the injury on David's nose as follows:
[David] had a minor, insignificant scratch to his
nose. Torokkas Kikku testified at this trial that he was
bleeding just a little. At another proceeding on October
3rd, 2011, she said it wasn't bleeding at all.
Notwithstanding a relatively minor scratch at the top of his
nose, the defendant said to Santhony Albert, why did you do
this? No man ever did these –- did things like this to me.
This is a window into his thinking before he stabbed
his cousin. Enraged that he had been subjected to this
relatively minor injury, the defendant was angry. He was
upset and he took it out on his unsuspecting cousin.
In the State's rebuttal argument, the Deputy Prosecutor
asserted:
[t]he defense argues that perception is reality and that
somehow the prosecution has foisted upon you rose-colored
lenses through which it asks you to view this case. What is
rose-colored about this case? An innocent man is dead and
his killer has deliberately testified falsely as to the
circumstances that led to his death. There's nothing rose-
colored about this.
The defense argument is that all of the prosecution's
witnesses, their perception must be mistaken, faulty, or
purposely they said something that was not true, yet urging
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upon you the narrative of the defendant whose own version of
the events is contradicted by common sense, life experience
and the credible evidence.
The defense doesn't have to prove anything, fill in any
pukas, give any explanations. But in the 45 minutes that
have been argued to you, there has been no presentation of
rebuttal to the prosecution's core argument that the
defendant's version of events is factually impossible. It
is factually impossible for the defendant to have stabbed
and killed his cousin in the way he's described.
Impossible. That is the most important fact of this case.
. . .
Ladies and gentlemen of the jury, this case is not about
cultural beliefs of the Chuukese culture. This case is
about the legal –- the legally unjustified killing of an
innocent man. This case is not about mwanichis and birth
order but, rather, about manslaughter and an innocent man's
blood.
A prosecutor is allowed wide latitude in discussing the
evidence and may state, discuss, and comment on the evidence as
well as draw all reasonable inferences from the evidence during
closing argument. State v. Pasene, 144 Hawai#i 339, 367, 439
P.3d 864, 892 (2019) (quoting Rogan, 91 Hawai#i at 412, 984 P.2d
at 1238). "A prosecutor exceeds the acceptable scope of closing
argument when a statement cannot be justified as a fair comment
on the evidence but instead is more akin to the presentation of
wholly new evidence to the jury, which should only be admitted
subject to cross-examination, to proper instructions and to the
rules of evidence." Id. at 367-68, 439 P.3d at 892-93 (quoting
State v. Underwood, 142 Hawai#i 317, 326, 418 P.3d 658, 667
(2018)). Furthermore, "prosecutors are bound to refrain from
expressing their personal views as to a defendant's guilt or the
credibility of witnesses." Cordeiro, 99 Hawai#i at 424-25, 56
P.3d at 726-27.
Here, the Deputy Prosecutor's rebuttal argument made
reasonable inferences based on conflicting witness testimony.
See State v. Austin, 143 Hawai#i 18, 44, 422 P.3d 18, 44 (2018)
("it is not improper for prosecutors to assert that a defendant's
testimony is not credible in a variety of ways so long as such an
inference is reasonably supported by the evidence"). In
substance and consistent with the State's theory and presentation
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of evidence, the Deputy Prosecutor argued that Albert was
"innocent" because he was not the aggressor for the altercation
which ended in his death. The Deputy Prosecutor's references to
Albert as an "innocent man" and "innocent man's blood" was fair
comment based on evidence in the record, and thus did not
constitute prosecutorial misconduct.
3. Improper reference to a missing "murder" weapon
David also argues the Deputy Prosecutory improperly
misrepresented the facts in arguing "that the case involved a
murder" by referring to a missing murder weapon. Specifically,
during rebuttal argument, the Deputy Prosecutor stated, "what was
not there was the murder weapon." Although this comment was
factually incorrect, because the second trial involved a
manslaughter charge and not a murder charge, the impropriety was
harmless.
"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.'"
Austin, 143 Hawai#i at 28, 422 P.3d at 28 (citing State v.
Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)
(quoting State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d
1215, 1220 (1996)).
"Prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of the
prosecutor have caused prejudice to the defendant's right to a
fair trial." Id. at 39, 422 P.3d at 39 (quoting Clark, 83
Hawai#i at 304, 926 P.2d at 209). When determining whether the
alleged prosecutorial misconduct rises to the level of reversible
error, this court considers three factors: (1) the nature of the
alleged misconduct; (2) the promptness or lack of a curative
instruction; and (3) the strength or weakness of the evidence
against the defendant. Id. at 40, 422 P.3d at 40.
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Although it was an improper error for the Deputy
Prosecutor to refer to the missing weapon as a murder weapon,
this was an isolated incident. The Deputy Prosecutor later
reiterated that the case was about manslaughter and there were no
further references to a murder or a murder weapon. As a result,
the first factor, the nature of the alleged prosecutorial
misconduct weighs against David.
Prior to closing arguments, the jury was instructed to
"disregard entirely any matter which the Court has ordered
stricken." David immediately objected to the Deputy Prosecutor's
reference to a missing murder weapon and the Circuit Court
promptly instructed the jury that the "State's last argument
about the weapon is stricken and you are not to consider it."
The jury is presumed to follow the court's curative instructions.
State v. Acker, 133 Hawai#i 253, 278, 327 P.3d 931, 956 (2014).
Therefore, the second factor, the promptness or lack of curative
instruction also weighs against David.
There were no witnesses who saw David stab Albert.
David's defense largely relied on the credibility of his
testimony which was contradicted by the State's witnesses, Ewen
and Kikku. See Rogan, 91 Hawai#i at 415, 984 P.2d at 1241
(evidence against defendant was not overwhelming where the case
against defendant hinged on the credibility of complainant and
contradictory testimony). Thus, the third factor, the strength
or weakness of the evidence against the defendant weighs in favor
of David.
Given the isolated nature of the misconduct, the prompt
instruction to the jury to disregard the Deputy Prosecutor's
comment about the weapon, and absent indication in the record
that the jury failed to adhere to the instructions, we conclude
there is no reasonable possibility that the Deputy Prosecutor's
misconduct characterizing the weapon as a murder weapon
contributed to David's conviction.
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III. Conclusion
Based on the foregoing, the Judgment of Conviction and
Sentence entered on February 28, 2019, by the Circuit Court of
the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, September 30, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Taryn R. Tomasa,
Deputy Public Defender, /s/ Derrick H.M. Chan
Office of the Public Defender, Associate Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.
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