State v. Austin

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
29-JUN-2018
08:00 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Plaintiff-Appellee,
vs.
GERALD L. AUSTIN,
Defendant-Appellant.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CR. NO. 12-1-0127)
JUNE 29, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.1
OPINION OF THE COURT EXCEPT AS TO PART III(D)(3)
AND OPINION OF NAKAYAMA, J., AS TO PART III(D)(3), IN WHICH
RECKTENWALD, C.J., JOINS
Defendant-Appellant Gerald L. Austin (Austin) appeals
the judgment of the Circuit Court of the First Circuit (circuit
1
Justice Nakayama, joined by Chief Justice Recktenwald in full and by
Justice McKenna, except as to Part III(D)(3), writes for the majority of the
court except as to Part III(D)(3). Justice Pollack, joined by Justice McKenna
in full and Justice Wilson in part, concurs in the judgment and writes for the
majority of the court with respect to the issue addressed in Part III(D)(3) of
Justice Nakayama’s opinion. Justice Wilson dissents in all other respects.
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
court) convicting him of murder in the second degree and
sentencing him to an extended sentence of life imprisonment
without the possibility of parole. On appeal, Austin asserts
five points of error: (1) the circuit court abused its
discretion in allowing Plaintiff-Appellee State of Hawai#i (the
State) and its witnesses to refer to Edith Skinner (Skinner) as
the “victim” or “murder victim” at trial; (2) the circuit court
erred in excluding the statements of Anne Wanous (Wanous) as
hearsay; (3) the circuit court erred in refusing to instruct the
jury on the lesser included offenses of manslaughter and assault;
(4) the circuit court erred in denying Austin’s motion for a new
trial because the prosecutor engaged in several acts of
misconduct during closing arguments; and (5) the circuit court
erred in sentencing Austin to an extended sentence of life
imprisonment without the possibility of parole in violation of
the ex post facto clause of the United States Constitution and
Hawai#i Revised Statutes (HRS) § 1-3.
For the reasons discussed below, we agree that Austin’s
extended sentence of life imprisonment without the possibility of
parole violated the ex post facto clause of the United States
Constitution and HRS § 1-3. But, we conclude that Austin’s other
points of error do not warrant vacating his conviction.
Therefore, we affirm in part and vacate in part the circuit
court’s June 18, 2014 Judgment, Guilty Conviction, and Sentence
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
and remand the case to the circuit court for resentencing.
I. BACKGROUND
Skinner was born on April 16, 1908, and was eighty-one
years old at the time of her death in 1989. Skinner did not have
any family in Hawai#i, but she had a son, Stephen Skinner, who
lived in California and with whom she spoke every weekend.
Skinner had several close friends and enjoyed baking, playing
bridge, and swimming at the Elks Club.
Skinner lived alone in Apartment 706 at the Makua Ali#i
Senior Center located at 1541 Kalâkaua Avenue, which was
generally restricted to low-income tenants over the age of sixty-
two. In 1989, the building was secured by an interphone system
whereby visitors would call the apartment that they wanted to
visit and the resident could let them in. Upon entering the
building, visitors could access any floor they wanted.
On the afternoon of July 25, 1989, Skinner’s body was
discovered in her apartment after two neighbors noticed that she
had not picked up the newspaper from her front door and that she
did not respond when they rang her doorbell. Her body was found
lying on top of the bed. The bed did not have any pillows,
blankets, sheets or comforters on it. The apartment was well-
kept, and there were no obvious signs that a struggle or an
altercation had taken place.
During his investigation of Skinner’s death, Honolulu
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Police Department (HPD) Detective Kenneth Ikehara (Detective
Ikehara) canvassed the Makua Ali#i building for witnesses and
interviewed several of Skinner’s neighbors. Pursuant to these
efforts, on July 26, 1989, Detective Ikehara spoke to Wanous and
took her recorded statement. Wanous’s mother lived in the unit
next to Skinner’s, and Wanous was visiting on the date of the
incident.
In her recorded statement, Wanous stated that she woke
up at approximately 4:50 a.m. or 5:00 a.m. on the morning of July
25, 1989 to smoke a cigarette at a chair and table located “right
outside [her] mother’s apartment door.” Wanous related that she
was “leaning forward” and smoking the cigarette when she heard
the sound of “something dropping.” Upon hearing the noise,
Wanous looked to the right and saw a black2 male carrying two
stuffed pillow cases leave Skinner’s apartment. Wanous averred
that she saw the man near the door to Skinner’s apartment for
about three to five seconds before he turned and walked into the
elevator.
Wanous stated that when she observed the man, the
corridor lights were on, but it was still dark out and there was
no sunlight. Wanous noted that although she “seen the [man’s]
arms was black,” she “couldn’t make out” the man’s face “because
2
Austin is a Caucasian male.
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
it was just one color all the way.” She also stated that when
the man briefly turned towards her, she could see “the whites of
his eyes” but “couldn’t see anything else.” When asked by
Detective Ikehara if Wanous could tell what the suspect’s race
was, Wanous responded that the suspect was “black,” but further
related an unknown individual had “corrected” her to say “negro.”
Upon being asked about the suspect’s “complexion,” Wanous
rejected the idea that the suspect was “black, black” and instead
described that the suspect was “dark.” Wanous opined that she
was not sure if she would be able to recognize the man if she saw
him again.
Wanous also discussed a few sketches of the suspect she
had drawn on a paper bag, which she had given to Detective
Ikehara. She stated that a “feeling” helped guide her as she
sketched:
[Wanous:] So I was told this is wrong.
[Detective Ikehara:] Who, what do you mean? This
looks wrong, just tell me.
[Wanous:] It’s a feeling that come to me.
[Detective Ikehara:] Feeling that came to you, okay.
So this drawing is what, of the guy that you saw?
[Wanous:] I think I saw.
[Detective Ikehara:] Okay.
[Wanous:] Something kept telling me, sketch it,
sketch it, sketch it, you know, I’m not a very good
artist, but this, sketch it, sketch it, (inaudible)
sketch it.
Detective Ikehara then attempted to clarify what Wanous meant:
[Detective Ikehara:] Well, and that just, you just
decided something was telling you to do, draw this?
[Wanous:] Yeah, you know, did that.
[Detective Ikehara:] Okay.
[Wanous:] Help my hand and sort of did that, guided
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
like.
[Detective Ikehara:] And that’s on the second
drawing?
[Wanous:] Yes.
Also on July 26, 1989, Wanous met with police sketch
artist Joe Aragon (Aragon) to prepare a composite drawing of the
suspect before Detective Ikehara took her recorded statement.
When Detective Ikehara asked Wanous if she could state that the
suspect looked like the composite drawing she helped create, she
said “[n]o.” She only confirmed that the sketch matched her
descriptions of the suspect’s hair, eyes, and facial shape.
On July 26, 1989, Detective Ikehara obtained a written
statement from Wanous’s sister, Orchid Ah Loy (Ah Loy), in which
she stated that Wanous’s other sister, Yvonne Clason (Clason),
had told her (Ah Loy) that Wanous had told Clason that she saw a
black male exit Apartment 706 “on either Monday, 7-24-89, or
Tuesday, 7-25-89, at about 0530 hours,” and that the man “was
carrying a pillow case.” The next day, Detective Ikehara took
the recorded statement of Karen Evenson (Evenson), Wanous’s
niece, wherein she stated that Wanous “told her that a black male
carrying pillow cases had exited unit #706 at about 0530 hours,
Tuesday, 7-25-89.”
On July 26, 1989, Dr. Kanthi De Alwis (Dr. De Alwis)
performed an autopsy on Skinner’s body. Dr. De Alwis determined
that the cause of death was asphyxia due to manual strangulation.
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Dr. De Alwis further testified that she recovered a “black or
darker-colored” pubic hair that stood out amongst Skinner’s
light-colored hair, which she preserved as evidence. Dr. De
Alwis also took samples of fluid found in the decedent’s vagina,
the testing of which revealed the presence of recently deposited
semen.
On August 3, 1989, Detective Ikehara submitted a draft
of a crime information bulletin. The composite drawing that
Wanous and Aragon had created was not submitted with the crime
information bulletin based upon Aragon’s opinion that the drawing
did not reflect an accurate description of the suspect, as Wanous
was not able to sufficiently describe enough elements of the
suspect’s facial features. Copies of the crime information
bulletin were subsequently printed and distributed.
On September 21, 1989, Allyson Simmons (Simmons), an
examiner in the Hair and Fibers Unit in the Fedural Bureau of
Investigation laboratory located in Washington D.C., received a
parcel containing the dark-colored pubic hairs that Dr. De Alwis
had collected from Skinner’s body. Then, on January 26, 1990,
Simmons received another parcel containing samples of Skinner’s
pubic hairs. Simmons testified that following a microscopic
examination of the darker-colored hairs, she determined that the
hairs were “brown Caucasian pubic hairs that were suitable for
comparison purposes.” Further, Simmons attested that a
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
microscopic comparison of the “brown Caucasian pubic hairs” with
samples of Skinner’s pubic hairs revealed that the “brown
Caucasian pubic hairs” were “dissimilar” to Skinner’s pubic
hairs.
In October 1991, Wanous passed away.
Additional testing conducted in 2005 on the fluid
samples collected from Skinner’s body revealed that the samples
contained a mixed DNA profile with two contributors: Skinner and
an unknown male. The unknown DNA profile was uploaded to the
Hawai#i State DNA database on February 10, 2006. On June 2,
2011, the database reported a match between the unknown DNA
profile and Austin’s DNA profile. On January 18, 2012, the
police collected DNA evidence from Austin via buccal swabs
pursuant to a search warrant. Testing of the swabs conducted the
next day confirmed that the unknown DNA profile in the fluid
samples from Skinner’s body matched Austin’s DNA profile.
On January 20, 2012, police detectives took Austin’s
recorded statement. Therein, he stated: (1) he was familiar
with the 1541 Kalâkaua Avenue address because his grandmother
used to live there and he had visited her two to three times a
month over six to seven years; (2) he remembered that his
grandmother lived on the sixteenth floor; (3) upon being shown
Skinner’s photograph, he did not recognize her; (4) he did not
recognize the name “Edith Skinner”; (5) he had never been inside
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Skinner’s apartment; (6) he never had sexual relations with
Skinner or with anyone else inside the Makua Ali#i building; and
(7) he did not injure Skinner, cause her death, or take any items
from her residence. He also stated that he did not recall where
he was on July 25, 1989.
A. Circuit Court Proceedings
On January 25, 2012, Austin was indicted by a grand
jury for murder in the second degree.
On July 23, 2013, Austin filed a motion to dismiss for
pre-indictment delay. He argued that the twenty-two year delay
between the date of the alleged offense and the date of the
indictment prejudiced him due to the loss of an exculpatory
witness, Wanous, who was no longer available to testify because
she was deceased. He asserted that “Wanous’s testimony would
have provided actual exculpatory evidence for Defendant” because
she would have testified that she “observed a black male exit
[Skinner’s] apartment at about 0500 hours on July 25, 1989,
carrying two pillow cases” and that “Wanous was able to describe
the black male’s physical features with great specificity: 19-25
years old, 5’8”, slim build, short kinky dark colored hair, dark
eyes, dark complexion; no glasses and not [sic] facial hair.”
The State countered that Wanous’s statement was not a
strong source of exculpatory evidence. The State pointed out
that Wanous observed the suspect at 5:00 a.m. when “the sun had
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
not yet risen and it was dark” and that at the time, she was
smoking a cigarette and “was not focused on Unit 706 and only
caught a fleeting look at the man.” The State also observed that
Wanous “provided nothing more than a generalized suspect
description” and that “[w]hen she spoke with Detective Ikehara .
. . she handed him a sketch of two figures on a paper bag. These
sketches, she claimed, were prompted by a ‘feeling’ she had to
draw.” The State emphasized that the sketches were fairly
unsophisticated and devoid of facial features. At a hearing on
the motion held on August 6, 2013, a transcript of Wanous’s
recorded statement and copies of her sketches were entered into
evidence.
On December 4, 2013, the circuit court3 issued its
findings of fact, conclusions of law, and order denying Austin’s
motion to dismiss for pre-indictment delay. The circuit court
found, inter alia: (1) during Wanous’s recorded statement, she
“said that she was unsure whether she would be able to recognize
the man if she saw him again”; (2) the sketch artist with whom
Wanous met “advised Detective Ikehara that the drawing [that
resulted from their discussion] may not reflect an accurate
description because Ms. Wanous could not describe enough of the
suspect’s facial features” such that “Detective Ikehara did not
3
The Honorable Colette Y. Garibaldi presided.
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
include the drawing in the HPD crime information bulletin”; (3)
Wanous gave Detective Ikehara two hand-drawn sketches, the first
of which had no eyes, nose, or mouth and the second of which
“provided slightly more detail but there was nothing to suggest
that the figure was a black male”; (4) Wanous told Detective
Ikehara that “a ‘feeling’ prompted her to sketch the figures”;
and (5) Wanous could not identify the suspect in several
photographic line-ups which were generated based on her general
descriptions. Based on these findings, the circuit court ruled
that Wanous’s death “does not prejudice Defendant” because:
Ms. Wanous’ account that she saw a black male
leaving Ms. Skinner’s apartment the morning of July
25, 1989, is of speculative value. Ms. Wanous’
account does not preclude the possibility that
Defendant entered Ms. Skinner’s apartment and killed
her. Consequently, Ms. Wanous’ account is too
speculative to demonstrate that its loss impairs
Defendant’s ability to present an effective defense.
On December 13, 2013, the State filed a motion in
limine to exclude Wanous’s statements as hearsay. Specifically,
the State sought to exclude: (1) Wanous’s recorded statement
taken by Detective Ikehara; (2) the sketches that she drew; (3)
the composite drawing prepared by the police graphic artist; (4)
the oral statements she made to Evenson; and (5) any statement
she made to Clason and Ah Loy. Austin countered that Wanous’s
statements were admissible under Hawai#i Rules of Evidence (HRE)
Rules 804(b)(5) and 804(b)(8), and under Chambers v. Mississippi,
410 U.S. 284 (1973). At the hearing on the motion, held on
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
December 19, 2013, Austin asked the circuit court to “take
judicial notice of the records and files in this case” and
asserted that under Chambers, Austin had the constitutional right
“to a fair opportunity to defend the accusation against him” and
that “the statement by Miss Wanous is essential to [Austin’s]
defense . . . that another person could have committed or had
committed this offense.”
Also on December 13, 2013, Austin filed a motion in
limine seeking to preclude the State and its witnesses from
referring to Skinner as “the victim” at trial. At the hearing
held on December 19, 2013, Austin argued that “to label the
decedent as a victim . . . is more prejudicial than probative.”
The circuit court ruled on both parties’ motions on
January 17, 2014. The circuit court granted the State’s motion
to exclude Wanous’s statements, concluding that the statements
did not fit within either HRE Rule 804(b)(5) or HRE Rule
804(b)(8), and that the statements were not admissible under
Chambers. The circuit court denied Austin’s motion to prevent
the State and its witnesses from referring to Skinner as “the
victim,” relying on State v. Mateo, No. 30371, 2011 WL 5031546
(App. Oct. 21, 2011) (SDO).
Austin was fifty-four years old at trial in 2014; he
would have been twenty-nine years old in 1989. Austin testified
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
that in 1989, he had met an older woman at the Makua Ali#i
building, whose name he could not remember, on two occasions.
The first time he met this older woman, he spoke with her in the
elevator. The second time, he encountered the woman in the lobby
where the two engaged in conversation. He testified that after
they chatted in the lobby, the older woman invited him to her
apartment, where the two continued to talk, and eventually, had
consensual sex. He testified that he was in the older woman’s
apartment for at most an hour, and that after engaging in sexual
intercourse with her, he left and went to his grandmother’s
apartment.
Austin also testified that he did not tell the police
about his sexual encounter with the woman in his 2012 interview
because he did not recognize the woman in the picture that the
police had shown him. Austin attested that he “didn’t make the
connection between that woman [he had consensual sex with] and
the woman that was found murdered.”
Following the presentation of evidence, the circuit
court instructed the jury on the elements of murder in the second
degree, having previously rejected Austin’s request for
instruction on the lesser included offenses of reckless
manslaughter and assault. Both sides then presented their
closing arguments.
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
During the State’s closing argument, the prosecutor
argued as one of his six points of summation that “[t]he
defendant is not worthy of your belief.” While making his
argument, the prosecutor made the following comments:
(1) He argued that Austin “flat out lied to [the
police] with denials of things that couldn’t possibly be true” in
his recorded interview. After playing a clip of the interview
recording, the prosecutor argued: “Come on. The detectives
asked him point blank [if he remembered meeting Skinner, speaking
with her, or being in her presence] and he denied it. These
denials are clear evidence that he lied to the police then. Why
would he lie about something so obvious to the police?”
(2) After playing a clip of the interview recording
where Austin denied recognizing Skinner’s picture or name, the
prosecutor commented: “That’s obviously a lie. Perhaps he
didn’t know her name. But if he didn’t know her name . . . how
is it that he engages in a consensual sexual encounter with a
woman whose name is suddenly unknown to him? He’s lying to the
police repeatedly.”
(3) He argued:
He lied to the police two years ago, but he’s
persisted in these lies when he spoke to you
yesterday. How do you know that?
You know, this trial is taking place in the City
and County of Honolulu on the Island of Oahu. But
surely the defendant must be a permanent resident of
Fantasy Island because the story he told you yesterday
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
–- half truths, fabrication, lies, convenient selected
memory, and flat-out amnesia. Think about what he
told you yesterday.
He said that he recalled having two
conversations with an unknown woman in the lobby of
the Makua Alii building. Conveniently he never
mentioned those conversations to the police. You can
listen to his statement.
Why is it that now he has this explanation?
Because the defendant has to come up with an
explanation for you as to why his semen is inside the
victim. He’s already lied to the police. He’s gotta
come up with an explanation as to why his semen is
there.
In summarizing the State’s case, the prosecutor stated:
“Let’s put this together. He had the opportunity; he has no
alibi; he is left handed;[4] the DNA evidence is conclusive; he
lied to the police; and he lied to you.” The prosecutor also
presented the jury with a narrative summarizing and describing
how the murder occurred. In short, he argued that Skinner forgot
to lock her front door, that Austin went to her unit after
entering the building, and that Austin then strangled and had sex
with her.
Additionally, during their respective closing
arguments, the parties differed in their views of Skinner’s
personality. The prosecutor contended that “[d]uring the last
4
During the State’s closing argument, the prosecutor argued that
Skinner’s murderer was left-handed based on Dr. De Alwis’ testimony that
during the autopsy, she saw multiple contusions on the right side of the neck,
diffuse hemorrhaging in the tissues on the right side of the neck, and broken
bones on the left side of the throat. The prosecutor argued that such
observations supported that Skinner’s assailant was facing Skinner at the time
he killed her, and had used his left hand to squeeze Skinner’s throat as he
strangled her. Thus, because Austin had testified that he was left-handed,
the prosecutor argued that the evidence further supported that Austin was the
culprit.
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
year of her life, Edith Skinner, then 81, lived a life of quiet
solitude.” Defense counsel challenged the State’s representation
of Skinner, arguing: “The State chose to depict Edith Skinner as
a frail, reserved, forgetful woman. That’s how they want you to
see her. Why? Because it’s consistent with how they’re
thinking. . . . It’s consistent with the idea that, hey, how can
you have [Austin’s] DNA on her unless it’s by force?” Defense
counsel argued that Skinner actually “had a very active social
life,” emphasizing that “she went swimming every week at the
Elk’s Club in Waikiki.” In rebuttal, the prosecutor questioned
defense counsel’s assertion that Skinner had an active social
life, remarking that no witness had testified that Skinner swam
at the Elk’s Club weekly.
Defense counsel did not object during the State’s
closing or rebuttal argument. But, at the end of the
proceedings, after the jury had been excused, defense counsel
objected to “the State’s repeated characterization that Mr.
Austin had lied.”
On February 5, 2014, the jury found Austin guilty as
charged and found that Austin knew or reasonably should have
known that Skinner was sixty years of age or older when he caused
her death. On February 18, 2014, Austin filed a motion for a new
trial, asserting that the prosecutor engaged in misconduct in
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
closing argument when he: (1) argued that Austin lied in his
statements to the police and in his testimony before the jury
because such statements expressed “his personal opinion regarding
Defendant’s credibility”; and (2) told a “story” of how the
murder was committed because such argument “was not based on the
evidence presented.”
Following a hearing on the motion, the circuit court
issued its written findings of fact, conclusions of law, and
order denying Austin’s motion for a new trial on May 8, 2014.
The circuit court ruled that 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. The circuit
court also determined that the State’s narrative was supported by
the evidence adduced at trial and reasonable inferences drawn
therefrom.
On June 18, 2014, Austin was sentenced to an extended
sentence of life imprisonment without the possibility of parole
pursuant to HRS §§ 706-661 and 706-662(5). He appealed his
conviction and sentence to the Intermediate Court of Appeals
(ICA). The case was then transferred to this court.
II. STANDARDS OF REVIEW
A. Statutory Interpretation
“We review the circuit court’s interpretation of a
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
statute de novo.” State v. Akau, 118 Hawai#i 44, 51, 185 P.3d
229, 236 (2008).
B. Admissibility of Evidence
“[W]here the admissibility of evidence is determined by
application of the hearsay rule, there can be only one correct
result, and ‘the appropriate standard for appellate review is the
right/wrong standard.’” State v. Moore, 82 Hawai#i 202, 217, 921
P.2d 122, 137 (1996) (quoting Kealoha v. Cty. of Hawaii, 74 Haw.
308, 319, 844 P.2d 670, 675 (1993), reconsideration denied, 74
Haw. 650, 847 P.2d 263 (1993)).
C. Jury Instructions
“When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading.” State v.
Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (quoting
State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)).
D. 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.’”
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Sawyer, 88 Hawai#i at 329 n.6, 966 P.2d at 641 n.6 (quoting State
v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996)).
“If defense counsel does not object at trial to prosecutorial
misconduct, this court may nevertheless recognize such misconduct
if plainly erroneous.” State v. Wakisaka, 102 Hawai#i 504, 513,
78 P.3d 317, 326 (2003). “We may recognize plain error when the
error committed affects substantial rights of the defendant.”
Id. (quoting State v. Cordeiro, 99 Hawai#i 390, 405, 56 P.3d 692,
707 (2002)).
E. Motion for a New Trial
“[T]he granting or denial of a motion for new trial is
within the sound discretion of the trial court and will not be
disturbed absent a clear abuse of discretion.” State v. Hicks,
113 Hawai#i 60, 69, 148 P.3d 493, 502 (2006) (alteration in
original) (quoting State v. Yamada, 108 Hawai#i 474, 478, 122
P.3d 254, 258 (2005)). “It is well-established that an abuse of
discretion occurs if the trial court has ‘clearly exceed[ed] the
bounds of reason or disregards rules or principles of law or
practice to the substantial detriment of a party litigant.’” Id.
(alteration in original) (quoting Yamada, 108 Hawai#i at 478, 122
P.3d at 258).
III. DISCUSSION
Austin asserts the following points of error on appeal:
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
(1) “Under State v. Mundon, 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,” (2) “The Trial Court
Erred in Excluding Wanous’ Statements on Hearsay Grounds and
Thereby Denied Austin His Right to a Fair Trial in Accord with
Due Process,” (3) “The Trial Court Erred by Refusing to Instruct
the Jury on Included Offenses,” (4) “Because Repeated Misconduct
by the DPA During Closing Argument Deprived Austin of a Fair
Trial, the Trial Court Erred in Denying his Motion for a New
Trial,” and (5) “The Trial Court Plainly Erred in Sentencing
Austin to an Extended Term in Violation of the Ex Post Facto
Clause of the Federal Constitution and HRS § 1-3.” We consider
each point of error in turn below.
A. The circuit court did not abuse its discretion in allowing
the State and its witnesses to refer to Skinner as the
“victim” at trial.
According to Austin, the circuit court erred in
allowing the State and its witnesses to refer to Skinner as the
“victim” or “murder victim” at trial. Austin asserts that the
circuit court erred by relying on State v. Nomura, 79 Hawai#i
413, 903 P.2d 718 (App. 1995), cert. denied, 80 Hawai#i 187, 907
P.2d 773 (1995), and State v. Mateo, No. 30371, 2011 WL 5031546
(App. Oct. 21, 2011) (SDO), rather than on State v. Mundon, 129
Hawai#i 1, 292 P.3d 205 (2012), which is controlling. Austin
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
argues that pursuant to Mundon, the State should not have been
permitted to refer to Skinner as the “victim” because the circuit
court did not find that there was a good reason to justify the
use of the term by the State and its witnesses in this case.
In Nomura, the defendant was charged with physically
abusing his wife, the complaining witness. 79 Hawai#i at 415,
903 P.2d at 720. The complaining witness and the defendant got
into an argument while grocery shopping, which later escalated
into a physical fight after they returned to the complaining
witness’s apartment. Id. The complaining witness testified that
during the fight, the defendant grabbed, hit, slapped, and choked
her. Id. The defendant testified that the complaining witness
had initiated the fight in response to the defendant telling her
that he wanted a divorce. Id. The defendant denied grabbing,
hitting, slapping, or choking the complaining witness as she had
testified. Id. The jury was instructed as follows on the
elements of the offense of abuse of a family or household member:
There are three (3) material elements to this charge,
which the prosecution must prove beyond a reasonable
doubt. The elements are:
1) The defendant physically abused the victim.
2) The victim is either a family or household
member; and
3) The defendant physically abused the victim
intentionally, knowingly, or recklessly.
Id.
On appeal, the defendant argued that by referring to
the complaining witness as the “victim” in the foregoing jury
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
instruction, the trial court improperly commented on the evidence
in violation of HRE Rule 1102 and thereby prejudiced the
defendant. Id. at 416, 903 P.2d at 721. The ICA held:
Hence, the term “victim” is conclusive in nature
and connotes a predetermination that the person
referred to had in fact been wronged. Because the
question of whether Witness had been abused was a
question yet to be decided by the jury, it was
improper to refer to her as “the victim.”
Furthermore, Defendant denied any contact with Witness
which might have caused her injury, making the
existence of “injury” another question to be decided
by the jury. Obviously, the trial court could have
used the term “complaining witness” or referred to
Witness by her name to avoid any appearance of
partiality. . . .
. . . .
Accordingly, we hold that the reference to a
complaining witness as “the victim” in criminal jury
instructions is inaccurate and misleading where the
jury must yet determine from the evidence whether the
complaining witness was the object of the offense and
whether the complaining witness was acted upon in the
manner required under the statute to prove the offense
charged. Here, the question of whether Witness was
the object of the crime and whether she suffered
physical “abuse” were elements required to be proven
under the statute and, hence, matters for the jury to
evaluate and not for the court to comment upon. Thus,
we disapprove of the reference to the complaining
witness as a “victim” in Instruction No. 01.
Id. at 416-17, 903 P.2d at 721-22 (emphasis added). However, the
ICA ultimately concluded that “[v]iewing the instructions in
their entirety, we do not believe the court’s reference to
Witness as ‘the victim’ was prejudicial.” Id. at 417, 903 P.2d
at 722.
In Mundon, the defendant was found guilty of attempted
sexual assault, kidnapping, and assault. 129 Hawai#i at 9, 292
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
P.3d at 213. The complaining witness testified that the
defendant molested her several times while she was sleeping in
his car, and that when she had attempted to leave the vehicle,
the defendant threatened to cut her with a knife. Id. at 6-7,
292 P.3d at 210-11. The complaining witness attested that she
managed to escape when the defendant permitted her to leave the
vehicle to relieve herself. Id. at 8, 292 P.3d at 212. The
defendant did not testify at trial. Id. at 9, 292 P.3d at 213.
On appeal, this court held that the circuit court erred
in allowing the prosecutor to refer to the complaining witness as
the “victim” at trial. Id. at 26, 292 P.3d at 230. The Mundon
court first noted that, in contrast with Nomura, the term
“victim” did not appear in the jury instructions and was not used
by the court. Id. However, this court reasoned:
Nomura also found the jury instruction problematic
because the trial court must instruct the jury on the
law but may not comment upon the evidence. Nomura
explained that such a rule derives from the principle
that the trial judge must endeavor at all times to
maintain an attitude of fairness and impartiality.
The use of the term was also wrong in light of this
principle, because the trial court could have used the
term “complaining witness” or referred to her by name
to avoid the appearance of partiality. The
presumption of innocence and the maintenance of
fairness and impartiality during the trial are
precepts underlying Nomura. Hence, the court erred in
allowing Respondent and the witnesses to refer to
Complainant as “the victim.”
. . . It would seem, in light of Nomura, that
unless there are good reasons found by the court for
permitting otherwise, the court should instruct all
counsel that they and their witnesses must refrain
from using the term.
Notwithstanding the court’s error, the use of
the term “victim” in the limited circumstances of this
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
case was not prejudicial to Petitioner and, hence,
does not itself warrant reversal of his convictions.
However, it “is incompatible with the presumption of
innocence for the prosecution to refer to the
complaining witness as the ‘victim,’ just as it is to
refer to the defendant as a ‘criminal.’” Thus, on
remand, this admonition should be heeded.
Id. (emphases added) (citations omitted).
Nomura and Mundon are distinguishable from the present
case and do not apply here. In both Nomura and Mundon, both
complaining witnesses testified at trial and claimed that they
were victims of the defendants’ crimes. Therefore, in those
cases, references to the complaining witnesses as “victims”
connoted a predetermination that the witnesses had been wronged
and that the crimes occurred as the witnesses had testified, and
consequently, unfairly implied the defendants’ guilt. By
contrast, here, Skinner did not testify at trial or accuse Austin
of any crime. Additionally, Austin did not dispute that Skinner
was murdered; his defense at trial was that he was not the
individual who had caused her death. Because there was no
dispute as to whether Skinner had been the object of a crime, and
the key issue at trial was the identity of the perpetrator, the
State’s use of the term “victim” did not connote Austin’s guilt.
Thus, the circuit court did not err in permitting the State or
its witnesses from referring to Skinner as “the victim” at
24
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
trial.5
B. The circuit court did not err in excluding Wanous’s
statements as hearsay.
1. HRE Rule 804(b)(5)
a. Ah Loy’s, Evenson’s, and Clason’s Statements
Recounting Wanous’s Statements
Austin advances two arguments in support of his
position that Wanous’s statements, as introduced through Ah Loy,
Evenson, and Clason, were admissible. First, Austin contends
that the circuit court erred in excluding Ah Loy’s written
statement to the police. For the first time on appeal, Austin
appears to argue that the circuit court should have analyzed the
statement as consisting of several layers of hearsay within
hearsay: (1) Wanous’s statement to Clason; (2) Clason’s
statement to Ah Loy; and (3) Ah Loy’s written statement to
Detective Ikehara. Austin contends that each layer of hearsay
falls within HRE Rule 804(b)(5), such that Ah Loy’s written
statement, with Wanous’s statement therein, was admissible.
Second, Austin argues that Wanous’s statements to
Evenson and Clason (who relayed Wanous’s statement to Ah Loy)
fell within HRE Rule 804(b)(5). Accordingly, Austin asserts that
5
Although we hold that, on the facts in this case, the circuit court did
not err in permitting the State to refer to Skinner as the “victim” because
the parties did not dispute that she had been murdered, our holding does not
preclude courts faced with similar circumstances in the future from providing
for the use of a term such as “deceased” in lieu of the word “victim.”
25
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
had Evenson or Clason been permitted to testify directly as to
what Wanous had told them, Wanous’s statements could have been
properly admitted into evidence.
Assuming arguendo that Clason and Evenson were
available to testify directly to Wanous’s statements, we conclude
that Wanous’s statements were not admissible as statements of
recent perception under HRE Rule 804(b)(5).
HRE Rule 804(b)(5) (1985) provides:
(b) Hearsay exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
. . . .
(5) Statement of recent perception. A
statement, not in response to the instigation of
a person engaged in investigating, litigating,
or settling a claim, which narrates, describes,
or explains an event or condition recently
perceived by the declarant, made in good faith,
not in contemplation of pending or anticipated
litigation in which the declarant was
interested, and while the declarant’s
recollection was clear[.]
HRE Rule 804(b)(5) is a codification of our decision in Hew v.
Aruda, 51 Haw. 451, 462 P.2d 476 (1969). HRE Rule 804(b)(5) cmt.
(1985) (stating that HRE Rule 804(b)(5) “restates the holding of
Hew v. Aruda”). Our analysis of whether Wanous’s statements were
admissible under HRE Rule 804(b)(5) begins with an examination of
our holding in Hew.
At issue in Hew was the existence of a contract. 51
Haw. at 453, 462 P.2d at 478. The plaintiff alleged that the
26
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
defendant, a partnership, entered into an oral agreement to rent
his interest in a piece of land and sought payment of a balance
owed. Id. The plaintiff presented several pieces of documentary
evidence supporting the rental agreement’s existence. Id.
The defendant could not rebut the plaintiff’s evidence
because the partner who allegedly entered into the contract on
behalf of the partnership had died. Id. The defendant attempted
to admit the deceased partner’s out-of-court statement that the
partnership had no outstanding bills relevant to the disputed
rental agreement. Id. at 454, 462 P.2d at 478-79. The trial
court excluded the statement as hearsay. Id. at 454, 462 P.2d at
479.
Analyzing whether the trial court erred in excluding
the statement of the deceased partner, this court stated:
The shortcomings of the [general hearsay] rule
barring statements of decedents are obvious. Relevant
and competent evidence, otherwise admissible, is
excluded even when it is the only available evidence.
This forces the finder of fact to decide a case with a
minimum of information concerning the facts in issue.
We think this is an unsound approach to the pursuit of
truth in an adversary context.
Since the decedent is obviously unavailable,
there is great need for this particular testimony to
be introduced into evidence. No alternative means of
introducing the evidence exists. While the great vice
of hearsay statements is the potential lack of
trustworthiness, this single liability is not enough
to justify the exclusion of a decedent's statement
when accuracy can be shown in other ways. By focusing
the inquiry on the circumstances surrounding the
declarant’s position when he made the statement, a
determination of trustworthiness can be made by the
trial judge. Certain safeguards must be met in order
to guarantee that trustworthiness, however. We hold
that a statements [sic] is not excluded by the hearsay
27
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
rule if the declarant is unavailable as a witness and
the court finds that the statement was made in good
faith, upon the personal knowledge of the declarant,
and while his recollection was clear, unless other
circumstances were present indicating a clear lack of
trustworthiness. This very reasonable limitation of
trustworthiness is necessary since the party against
whom the statement is offered has no opportunity to
test the hearsay by cross-examination.
Id. at 456-57, 462 P.2d at 480 (emphases added). In a footnote,
the Hew court commented that “[a] clear lack of trustworthiness
might be shown by a statement made ‘in response to the
instigation of a person engaged in investigating, litigating, or
settling a claim, or ‘in contemplation of pending or anticipated
litigation in which he (the declarant) was interested.’” Id. at
457 n.1, 462 P.2d at 480 n.1 (quoting the Preliminary Draft of
the Proposed Rules of Evidence for the United States District
Courts and Magistrates, Rule 804(b)(2) and Advisory Committee’s
Note at 210-11 (March 1969)).
Pursuant to the foregoing, inasmuch as HRE Rule
804(b)(5) is a codification of this court’s holding in Hew, it
appears that HRE Rule 804(b)(5) permits the admissibility of a
hearsay statement by an unavailable witness in limited instances
where the circumstances surrounding the statement, such as those
contemplated by the Hew court, sufficiently guaranteed its
trustworthiness. Id. at 457, 462 P.2d at 480; HRE Rule 804(b)(5)
cmt. (1985). However, the Hew court unambiguously stated that
even if its contemplated safeguards for trustworthiness were
28
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
present, such hearsay statements ought to be excluded if “other
circumstances were present indicating a clear lack of
trustworthiness.” Id.; see also State v. Haili, 103 Hawai#i 89,
100, 79 P.3d 1263, 1274 (2003) (“[T]his court will review the
circuit court’s determination of trustworthiness under HRE Rules
804(b)(5) and 804(b)(8) for an abuse of discretion.”).
Applying the aforementioned principles from Hew to the
present case, we believe that Wanous’s statements were not
admissible under HRE Rule 804(b)(5). Indeed, Wanous’s statements
were accompanied by several of the circumstantial guarantees of
trustworthiness contemplated in Hew, and codified in HRE Rule
804(b)(5). Wanous spontaneously told Ah Loy, Clason, and Evenson
that she had seen a black male leaving Skinner’s apartment on the
day that Skinner’s body was discovered. As such, Wanous’s
statements to her sisters and niece were not made “at the
instigation of a person investigating . . . a claim.” Wanous
“explain[ed] an event . . . recently perceived,” and it does not
appear that Wanous made the statements in bad faith. The record
also does not indicate that Wanous made the statement “in
contemplation of pending or anticipated litigation in which [she]
was interested.” Lastly, Wanous made the statements “while [her]
recollection was clear,” insofar as she spoke with Ah Loy, Clason
and Evenson a few hours after observing the black male leave
29
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Skinner’s apartment.
However, Wanous’s statements were also surrounded by
circumstances abundantly indicating their lack of
trustworthiness. In particular, the record supports that: (1)
Wanous only saw the suspect for “maybe three to five seconds”;
(2) Wanous observed the suspect at around 5:00 a.m. while it was
still dark outside--there was no sunlight, and the only lights on
at the time were the corridor lights; (3) Wanous was not in an
optimal position to get a clear glance at the suspect insofar as
she was initially “leaning over” and occupied with smoking a
cigarette before she made her observation; (4) Wanous stated that
although she “seen the arms was black,” she “couldn’t make out”
the suspect’s face “because it was just one color all the way”;
(5) Wanous’s only glimpse of the suspect’s facial features was
“real fast” from a side-view as the suspect turned around; (6)
Wanous said that when the suspect briefly turned towards her, she
could see “the whites of his eyes” but “couldn’t see anything
else”; (7) Wanous stated that the suspect “looked a male” based
upon her observation that the suspect “didn’t have bosom,” rather
than upon her observation of the suspect’s face; (8) upon being
asked if she could identify the suspect’s race, Wanous initially
stated that the suspect was “black,” but later related that an
unknown individual had “corrected” her to say “negro”; (9) when
30
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
asked to describe the suspect’s complexion, Wanous rejected the
idea that the suspect was “black, black,” and instead described
that he was “dark”; (10) Wanous commented on “how far away” the
suspect was from her when she saw him; (11) Wanous decided to
sketch the suspect based upon a “feeling” which “guided” her
hand; (12) Wanous could not say that the suspect looked like the
person depicted in the composite sketch that she had helped to
create; (13) Detective Ikehara did not attach the composite
sketch to the crime information bulletin because Wanous was not
able to adequately describe enough of the suspect’s facial
features, such that Aragon believed that the drawing did not
reflect an accurate description of the suspect; and (14) Wanous
could not confirm that she would be able to identify the suspect
if she saw him again.
Accordingly, excluding Wanous’s statements to her
sisters and niece, which are surrounded by ample facts that
strongly indicate their lack of trustworthiness, was consistent
with our holding in Hew--the case which HRE Rule 804(b)(5)
codifies. Therefore, we hold that based on the facts of this
case, the circuit court did not abuse its discretion in ruling
that Wanous’s statements to Ah Loy, Evenson, and Clason were not
admissible under HRE Rule 804(b)(5).
31
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
b. Wanous’s Statements to Detective Ikehara
Austin also asserts that the circuit court erred in
ruling that Wanous’s statements to the police were not admissible
under HRE Rule 804(b)(5). He asserts that “[b]ecause a criminal
prosecution is not a ‘claim,’ a police officer investigating a
crime is not ‘engaged in investigating, litigating, or settling a
claim’” within the meaning of the Rule.
Although Austin’s argument raises an interesting
question as to whether statements procured by police officers
during official criminal investigations are statements that are
made “in response to the instigation of a person engaged in
investigating . . . a claim” within the meaning of HRE Rule
804(b)(5), we need not resolve this issue to address Austin’s
arguments on this point. Pursuant to our analysis in section
III.B.1.a, supra, we hold that the circuit court did not abuse
its discretion in ruling that Wanous’s statements to Detective
Ikehara were not admissible under HRE Rule 804(b)(5), because her
statements were accompanied by a multitude of circumstances that
indicate their lack of trustworthiness.
2. HRE Rule 804(b)(8)
Austin maintains that even if Wanous’s statements were
not admissible under HRE Rule 804(b)(5), they were admissible
under HRE Rule 804(b)(8). He argues that the circuit court erred
32
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
by failing to consider numerous facts that supported Wanous’s
trustworthiness, including: (1) Wanous made several consistent
statements to “trusted confidantes” within a short period of
time; (2) several facts in Wanous’s statements were corroborated
by other evidence; (3) the evidence neither demonstrated that
Wanous lacked capacity nor illustrated that Wanous was an
untruthful person; and (4) Wanous was a disinterested party.
Though currently codified as HRE Rule 804(b)(8), the
catch-all exception was initially codified as HRE Rule 804(b)(6)
at the time the offense occurred in this case. The text of the
exception, however, remains unchanged and states, in part:
(b) Hearsay exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
. . . .
(8) Other exceptions. A statement not
specifically covered by any of the foregoing
exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court
determines that (A) the statement is more
probative on the point for which it is offered
than any other evidence which the proponent can
procure through reasonable efforts, and (B) the
general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
HRE Rule 804(b)(8) (2016).
Although hearsay rulings are generally reviewed under
the right/wrong standard, this court has held that a trial
court’s determination of whether a statement is trustworthy is
reviewed for an abuse of discretion. Haili, 103 Hawai#i at 103,
33
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
79 P.3d at 1277. “The trial court abuses its discretion when it
clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant.” State v. Plichta, 116 Hawai#i 200, 214, 172
P.3d 512, 526 (2007) (quoting State v. Ganal, 81 Hawai#i 358,
373, 917 P.2d 370, 385 (1996)).
In State v. Swier, the defendant was charged with
negligent homicide in the second degree as a result of his
involvement in a car accident. 66 Haw. 448, 666 P.2d 169 (1983).
The State sought to introduce a statement made by a witness to a
police officer two days after the accident. Id. at 448-49, 666
P.2d at 169-70. Though the witness apparently left Hawai#i after
the accident, he initially stated that he would return and
testify, but later refused to do so. Id. at 449, 666 P.2d at
170. Because the case was a misdemeanor case, the State was
unable to compel the witness to return to Hawai#i. Id. The
circuit court excluded the statement, and on appeal, the State
argued that the statement should have been admitted under the
catch-all exception, then codified as HRE Rule 804(b)(6). Id. at
449-50, 666 P.2d at 170. This court held:
The problem with the State’s contention is that
the trial court was not satisfied that [the witness’s]
statement had circumstantial guarantees of
trustworthiness equivalent to those which have long
been recognized in the case of the exceptions set
forth in Rules 804(b)(1) through (5).
In ruling on the motion, the trial court
34
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
correctly pointed out that [the witness’s]
demonstrated equivocation with respect to returning to
Hawaii to testify cast some doubt on the
trustworthiness of his statement. We cannot say that
the trial court abused its discretion in rejecting the
statement. We therefore affirm the trial court’s
ruling excluding [the witness’s] statement without
reaching the constitutional issue of the right to
confrontation.
Id. at 450, 666 P.2d at 170.
Similar to Swier, the circuit court here was not
satisfied that Wanous’s statements had sufficient circumstantial
guarantees of trustworthiness. The circuit court reasoned:
The language of 804(b)(8) indicates that, in order to
qualify for this hearsay exception, as a threshold
matter, the hearsay statement must be trustworthy.
Here, there are no “circumstantial guarantees of
trustworthiness” surrounding Anne Wanous’ statements.
. . . All of the circumstances tied to Anne Wanous’
statements indicate its lack of trustworthiness--
specifically that she was unable to provide the sketch
artist with a description that was worthy even of the
crime bulletin, and that her own sketch was devoid of
any detail and was the product of what Anne Wanous
described as a “feeling” that compelled her to draw
the sketch. Because Anne Wanous’ statements lack the
circumstantial guarantees of trustworthiness that HRE
Rule 804(b)(8) requires, the statements do not qualify
for the 804(b)(8) exception to the hearsay rule.
Though the circuit court’s analysis regarding the
trustworthiness of Wanous’s statements was brief, this may be
because the circuit court had previously considered, at length,
the trustworthiness of Wanous’s statements when it evaluated
Austin’s motion to dismiss for pre-indictment delay. In ruling
on the State’s motion in limine, the circuit court, at Austin’s
request, took judicial notice of all of the documents in the case
record, which included its own ruling on Austin’s motion to
35
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
dismiss for pre-indictment delay. Therein, the circuit court
found the following facts, which have independent support in the
record and indicate that Wanous’s statements lacked
trustworthiness: (1) Wanous was unable to confirm that she would
be able to identify the suspect if she saw him again; (2) Wanous
was prompted to draw the sketches of the suspect based on a
“feeling” which “guided” her hand; (3) the sketches had very
little detail--one sketch had no eyes, nose, or mouth, and the
other did not contain anything to suggest that the figure was a
black male; (4) Aragon advised Detective Ikehara that the
composite drawing might not have reflected an accurate
description of the suspect because Wanous could not describe
enough of the suspect’s facial features, such that Detective
Ikehara did not include the drawing in the HPD crime information
bulletin; and (5) Wanous could not identify the suspect in
several photographic line-ups that were generated based on her
general descriptions of the suspect.
Furthermore, the circuit court’s ruling that Wanous’s
statements were not trustworthy is supported by the additional
facts concerning the circumstances in which Wanous observed the
suspect, as discussed in section III.A.1.a, supra.
Despite Austin’s contention that there were some facts
supporting that Wanous’s statements were trustworthy, ample facts
36
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
also indicated that her statements were not trustworthy. We
therefore conclude that the circuit court did not clearly exceed
the bounds of reason or disregard rules or principles of law or
practice in ruling that Wanous’s statements lacked sufficient
circumstantial guarantees of trustworthiness to warrant their
admission under HRE Rule 804(b)(8).
3. Chambers v. Mississippi
Austin argues that even if Wanous’s statements were not
admissible under HRE Rule 804, they were admissible under
Chambers v. Mississippi because “[t]here was a great need” for
the evidence, as Wanous’s statements were “the only independent
evidence that Austin could offer to corroborate his testimony
that someone else had caused Skinner’s death.”
In Chambers, the defendant was charged with murdering a
police officer by shooting the officer during a fight involving a
large crowd at a bar. 410 U.S. at 285-87. A man named Gable
McDonald (McDonald) subsequently confessed that he, not the
defendant, shot and killed the officer. Id. at 287. However,
McDonald later repudiated his sworn confession and testified at a
preliminary hearing that he had been persuaded by a third party
to confess to the murder. Id. at 288. He attested that the
third party had promised him a share of the proceeds from a
lawsuit that the defendant would bring against the town. Id.
37
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
McDonald’s repudiation was accepted and his involvement was not
investigated further. Id. at 288.
At trial, the defendant called McDonald as a witness.
Id. at 291. McDonald testified that he did not shoot the officer
and that he had only confessed on the promise of receiving a
share of the sizable tort recovery from the town. Id. When the
defendant tried to introduce the testimony of three witnesses to
whom McDonald had admitted that he had shot the officer, the
State raised an objection based on hearsay, which the trial court
sustained. Id. at 292. On certiorari to the United States
Supreme Court, the defendant argued that his constitutional right
to due process was violated because, inter alia, he could not
introduce the testimony of the witnesses to whom McDonald had
confessed. Id. at 294. The Court held:
The hearsay statements involved in this case
were originally made and subsequently offered at trial
under circumstances that provided considerable
assurance of their reliability. First, each of
McDonald’s confessions was made spontaneously to a
close acquaintance shortly after the murder had
occurred. Second, each one was corroborated by some
other evidence in the case-–McDonald’s sworn
confession, the testimony of an eyewitness to the
shooting, the testimony that McDonald was seen with a
gun immediately after the shooting, and proof of his
prior ownership of a .22-caliber revolver and
subsequent purchase of a new weapon. The sheer number
of independent confessions provided additional
corroboration for each. Third, whatever may be the
parameters of the penal-interest rationale, each
confession here was in a very real sense self-
incriminatory and unquestionably against interest.
. . . Finally, if there was any question about the
truthfulness of the extrajudicial statements, McDonald
was present in the courtroom and was under oath. He
could have been cross-examined by the State, and his
38
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
demeanor and responses weighed by the jury. . . .
. . . The testimony rejected by the trial court
here bore persuasive assurances of trustworthiness and
thus was well within the basic rationale of the
exception for declarations against interest. That
testimony also was critical to Chambers’ defense. In
these circumstances, where constitutional rights
directly affecting the ascertainment of guilt are
implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.
Id. at 300-02 (emphases added) (footnote and citations omitted).
In short, in Chambers, the United States Supreme Court
established a two-part test that applies to determine whether a
hearsay statement may be admissible pursuant to a defendant’s
constitutional right to due process. See id. at 302. Under the
Court’s analytical framework in Chambers, the defendant must
establish that: (1) the statement is “critical to [his or her]
defense” and (2) that the statement “bore persuasive assurances
of trustworthiness.” Id. In this case, the parties do not
dispute that Wanous’s statements were critical to Austin’s
defense. Rather, the key issue is whether Austin satisfied the
second part of the Chambers test by establishing that Wanous’s
statements “bore persuasive assurances of trustworthiness.”
Austin notes that there are some similarities between
the facts in Chambers and the facts in the present case, which
arguably support the trustworthiness of Wanous’s statements.
Here, as in Chambers, Wanous spontaneously spoke to two family
members with whom she was closely acquainted later in the morning
after she observed the black male leave Skinner’s apartment.
39
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
And, like in Chambers, Wanous’s observations were corroborated by
some independent evidence--her observation that the black male
was carrying stuffed pillow cases is consistent with several
witnesses’ testimony that the bed upon which Skinner’s body had
been found did not have any blankets, sheets, comforters, or
pillows.
However, despite having some similarities with
Chambers, this case is distinguishable in that numerous facts
indicate that Wanous’s statements were substantially less
trustworthy compared to McDonald’s in Chambers. Though Wanous’s
statements to Evenson and Clason may have been spontaneous, her
recorded statement to Detective Ikehara was not. Significantly,
several key statements in Wanous’s recorded interview, in which
she described the suspect’s features, were not spontaneous to the
extent that Detective Ikehara appeared to lead or suggest her
responses. For example, Detective Ikehara appeared to lead
Wanous into describing the suspect as a black or negro male:
[Detective Ikehara:] Okay, can you describe this
person. Was he a male or female? Was it a, was a
male or female?
[Wanous:] It looked a male because it didn’t have
bosom, you know.
[Detective Ikehara:] And what race would you say,
this person, this male was?
[Wanous:] I seen the arms was black, you know, both
arms black, and the face, I couldn’t make out because
it was just one color all the way . . .
[Detective Ikehara:] Wait, wait, wait, as far as
race, could you tell what race he was?
[Wanous:] By the color of his skin and hair, I, I
said it was black and then, and I was corrected like
negro.
40
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[Detective Ikehara:] Okay, so you saw a black or
negro male . . .
[Wanous:] Uh-huh.
. . . .
[Detective Ikehara:] What about his complexion, was
real black, real dark?
[Wanous:] Not that black, black type.
[Detective Ikehara:] So, but he was dark?
[Wanous:] Dark, yes.
(Third ellipses added.) Likewise, Detective Ikehara seemed to
lead Wanous into describing the suspect’s hair as dark, kinky,
and short:
[Detective Ikehara:] Okay, and then, ah, what color
was his hair?
[Wanous:] It wasn’t, it wasn’t blonde or red or what
. . .
[Detective Ikehara:] So it’s dark hair?
[Wanous:] Dark hair.
[Detective Ikehara:] And what style was it, do you
know?
[Wanous:] Was close, close . . .
[Detective Ikehara:] Close to the head?
[Wanous:] Yeah, close.
[Detective Ikehara:] Was it curly or straight or
. . .
[Wanous:] Well, it looked, ah, no, no, not straight,
ah . . .
[Detective Ikehara:] Kinky?
[Wanous:] Kink . . .
[Detective Ikehara:] Is that right?
[Wanous:] To the hair, to the, to the scalp.
[Detective Ikehara:] Kinky kind of hair?
[Wanous:] Well, that’s all I could see when he
turned.
[Detective Ikehara:] Kinky, but is that right?
[Wanous:] Not that springy type.
[Detective Ikehara:] Uh-huh, curly?
[Wanous:] (inaudible).
[Detective Ikehara:] Kinky or curly or how would you
describe it?
[Wanous:] Curly would be a little wider, yeah?
[Detective Ikehara:] Uh-huh.
[Wanous:] Kinky would be small, yeah.
[Detective Ikehara:] What?
[Wanous:] Yeah, small.
[Detective Ikehara:] Kinky? Okay, uhm, so it was
short then the hair, yeah?
[Wanous:] Yes, it wasn’t ah, ah, ah, wild type
hairdo.
41
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
[Detective Ikehara:] How was the hair styled? All
you can say it was close to the head?
[Wanous:] Yeah, that’s all.
[Detective Ikehara:] And how long was it, real short?
[Wanous:] It wasn’t long.
Thus, unlike McDonald’s statements, which were completely made at
his own behest, 410 U.S. at 300, several of the crucial portions
of Wanous’s recorded statement appeared to be in response to
Detective Ikehara’s leading questions. Her statements,
therefore, were less trustworthy compared to McDonald’s in
Chambers.
Similarly, while Wanous’s statements were corroborated
by some other evidence, the amount of corroborating evidence and
the extent of validation were significantly less compared to
Chambers. Here, at most, one or two facts from Wanous’s
statements, which were irrelevant to her description of the
suspect, were corroborated by the testimony of a few other
witnesses. By contrast, in Chambers, McDonald’s statements were
corroborated not only by numerous witnesses’ statements, but also
substantial physical evidence. 410 U.S at 300. And, unlike
McDonald’s statements, Wanous’s statements were not self-
incriminatory. Cf. id. at 300-301. These facts indicate that
Wanous’s statements were more untrustworthy than McDonald’s in
Chambers.
Lastly, unlike McDonald, Wanous was unavailable to
testify at trial because she was deceased. Cf. 410 U.S. at 301.
42
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
The State had no means of addressing any questions concerning the
truthfulness of Wanous’s statements because she could not “have
been cross-examined by the State, and [her] demeanor and
responses weighed by the jury.” Id. Put differently, a
safeguard against unreliability which was present in Chambers is
absent here, thus rendering the cases distinguishable from one
another. Christian v. Frank, 595 F.3d 1076, 1085 (9th Cir. 2010)
(“Moreover, Chambers can be further distinguished from the case
before us in that, here, . . . [the declarant] was declared to be
unavailable. His unavailability contrasts sharply with the
availability of McDonald in Chambers, which the Supreme Court of
the United States stressed greatly enhanced the reliability of
the extrajudicial statements in that case.” (citation omitted)).
The present case can be additionally distinguished from
Chambers inasmuch as Wanous’s statements not only lacked several
of the assurances of trustworthiness that bolstered McDonald’s
statements in Chambers, but her statements were also accompanied
by numerous indicia of untrustworthiness that were not present in
Chambers, as discussed in section III.B.1.a, supra.
In order for Wanous’s statements to have been
admissible under Chambers, Austin was required to demonstrate
that Wanous’s testimony was “critical to [his] defense” and that
the statements “bore persuasive assurances of trustworthiness.”
43
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Chambers, 410 U.S. at 302. Based on the foregoing, we hold that
the circuit court did not abuse its discretion in ruling that the
second requirement was not met, and determining that Wanous’s
statements were not admissible under Chambers.
To conclude, the circuit court did not abuse its
discretion in ruling that Wanous’s statements were not admissible
under HRE Rule 804(b)(5), HRE Rule 804(b)(8), or Chambers.
C. The circuit court did not err by refusing Austin’s
proposed jury instructions for lesser included offenses.
Austin asserts that the circuit court erred in failing
to instruct the jury on the lesser included offenses of
manslaughter and assault. Austin contends that at trial,
“[t]here was evidence of the cause of Skinner’s death and that
Austin had engaged in intercourse with her, but there was no
evidence of forced entry or that Skinner’s apartment had been
ransacked or disturbed in any way.” Thus, Austin argues that a
rational juror could have concluded that Austin did not
intentionally or knowingly cause Skinner’s death, and instead
could have found that he had acted recklessly in killing or
injuring Skinner.
“[J]ury instructions on lesser-included offenses must
be given where there is a rational basis in the evidence for a
verdict acquitting the defendant of the offense charged and
convicting the defendant of the included offense.” State v.
44
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Flores, 131 Hawai#i 43, 51, 314 P.3d 120, 128 (2013). “The
failure to instruct the jury on a lesser included offense for
which the evidence provides a rational basis warrants vacation of
the defendant’s conviction.” Id. at 58, 314 P.3d at 135.
The parties in the present case do not dispute that
manslaughter and assault in the first, second, and third degrees
are lesser included offenses of the charged offense, murder in
the second degree. The issue is whether there was a rational
basis in the evidence for the jury to acquit Austin of the
offense charged and instead convict him of any of the lesser
included offenses. See Flores, 131 Hawai#i at 51, 314 P.3d at
121.
Under HRS § 707-702(1)(a) (1985), “(1) A person commits
the offense of manslaughter if: (a) He recklessly causes the
death of another person[.]” A person commits assault in the
first degree if he or she “intentionally or knowingly causes
serious bodily injury to another person.” HRS § 707-710 (1985).
A person commits assault in the second degree if he or she
“intentionally or knowingly causes substantial bodily injury to
another” or “recklessly causes serious bodily injury to another
person.” HRS § 707-711 (Supp. 1988). Assault in the third
degree requires that a person “[i]ntentionally, knowingly, or
recklessly cause[] bodily injury to another person” or
45
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
“[n]egligently cause[] bodily injury to another person with a
dangerous instrument.” HRS § 707-712 (1985).
Under the State’s theory of the case, Skinner was
murdered based on the fact that the cause of death was asphyxia
due to manual strangulation--a conscious and deliberate act
reflecting the intent to cause the death of another person. The
State introduced evidence supporting that Austin was Skinner’s
murderer, which included: (1) Austin’s testimony that he had
access to the Makua Ali#i building because his grandmother lived
there at the time and he visited her regularly; (2) testimony
that Austin’s DNA was detected in the sample of the fluid found
in Skinner’s body at the time of her death; and (3) testimony
that Austin could not be excluded as a donor of a dark-colored
pubic hair that was found amongst Skinner’s light-colored pubic
hair.
Austin’s defense was that while he may have had sexual
intercourse with Skinner before she was murdered, he was not the
individual who killed her. At trial, Austin testified that he
and Skinner engaged in consensual sexual relations after he had
spoken with her on two occasions. However, Austin unequivocally
attested that he was not the individual who strangled Skinner,
nor was he the person who caused her death. In other words,
Austin acknowledged that Skinner had been strangled, but
46
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
maintained that someone else was responsible.
The evidence adduced at trial does not provide a
rational basis for a verdict acquitting Austin of murder in the
second degree and instead finding him guilty of either
manslaughter or any degree of assault. Austin correctly notes
that the State’s evidence supported that: (1) based upon Dr. De
Alwis’ autopsy report, the cause of Skinner’s death was manual
strangulation, and (2) there was no evidence of forced entry, a
struggle, or that Skinner’s apartment had been disturbed or
ransacked in any way. Such facts, however, do not support that
Skinner’s assailant acted recklessly rather than intentionally or
knowingly when he or she strangled Skinner. Accordingly, these
facts do not form a rational basis for acquitting Austin of
murder in the second degree, and instead finding him guilty of
reckless manslaughter or assault.
Additionally, Austin did not proffer any evidence to
support that while he was engaging in sexual intercourse with
Skinner, he recklessly caused Skinner’s death or otherwise
inflicted any sort of bodily injury upon her. In fact, Austin
offered little information about his sexual encounter with
Skinner, testifying only that it was consensual, that he believed
that it occurred in the late afternoon, that he and Skinner spoke
for about twenty-five to thirty minutes in her apartment before
47
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
they had sex, that they had intercourse on her bed, that she was
wearing a dress, that he was in her apartment for at most an
hour, and that he immediately went to his grandmother’s apartment
afterwards.
Accordingly, the record does not contain any evidence
to support that Skinner’s strangulation was the product of
reckless rather than intentional behavior. It follows that,
based on the evidence presented at trial, the jury could have
rationally arrived at one of two conclusions: (1) Austin was the
individual who deliberately strangled Skinner, and consequently
was guilty of murder in the second degree, or (2) Austin did not
strangle Skinner and did not cause her death, and should have
been acquitted. There was no rational basis for acquitting
Austin of murder in the second degree and instead finding him
guilty of manslaughter or assault. We therefore hold that the
circuit court did not err in refusing to instruct the jury on the
foregoing lesser included offenses.
D. The circuit court did not err in denying Austin’s motion
for a new trial on the basis of prosecutorial misconduct.
“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.” State v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194,
209 (1996) (quoting State v. McGriff, 76 Hawai#i 148, 158, 871
48
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
P.2d 782, 792 (1994)). 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.
Austin argues that the circuit court erred in denying
his motion for a new trial because the prosecutor engaged in
several acts of prosecutorial misconduct, which deprived Austin
of his right to a fair trial. He alleges five arguments
regarding misconduct. We address each in turn.
1. Shifting the Burden of Proof
Austin argues that during the State’s closing argument,
the prosecutor made three arguments that improperly shifted the
burden of proof to him. First, Austin argues that the prosecutor
“incorrectly and improperly suggested to the jury that Austin
bore the burden of disproving his identity as the perpetrator of
the charged offense” when he stated:
The defendant does not have an alibi for the time of
the murder. In an alibi case, the person asserting the
alibi concedes that the underlying crime has occurred
but challenges the identity of the perpetrator,
claiming that at the time the offense was allegedly
committed he was somewhere else. The defendant has no
alibi.
Second, Austin argues that the prosecutor implied that
“it was Austin’s burden to refute the State’s DNA evidence,” when
49
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
he made the following comments: (1) “The DNA evidence in this
case demonstrates beyond any reasonable doubt that the defendant
and no one else, is directly responsible for Edith’s death”; (2)
“What is the only reasonable inference that you can draw if a
medical examiner finds the defendant’s pubic hair mixed within
the murder victim’s?”; (3) “The defendant’s unique genetic
fingerprint was found inside of the murder victim”; and (4) “The
defendant’s unique genetic fingerprint was found inside of Edith
Skinner.”
Finally, Austin argues that the prosecutor improperly
“suggested to the jury that Austin’s account should not be
believed because he failed to present independent evidence to
corroborate it.” On this point, Austin points to the
prosecutor’s comment that “[t]he defendant’s version of events to
you is nothing more than the uncorroborated delusions of a
desperate man,” and that the jury must consider “the extent to
which his account is corroborated or uncorroborated or
contradicted by the other credible evidence.”
Austin did not object to any of the foregoing comments
at trial. When defense counsel fails to object to prosecutorial
misconduct at trial, we may still recognize such misconduct if it
affected the defendant’s substantial rights, such that the
circuit court’s failure to take corrective action constituted
50
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
plain error. Wakisaka, 102 Hawai#i at 513, 78 P.3d at 326. The
analysis proceeds in two steps. First, we determine whether the
prosecutor’s actions constituted misconduct. Clark, 83 Hawai#i
at 304, 926 P.2d at 209. If we conclude that the prosecutor’s
actions were improper, we analyze whether the action affected the
defendant’s substantial rights, such that the circuit court
plainly erred by not intervening and taking remedial action. Id.
In criminal trials, “the burden is always upon the
prosecution to establish every element of [a] crime by proof
beyond a reasonable doubt, never upon the accused to disprove the
existence of any necessary element.” State v. Cuevas, 53 Haw.
110, 113, 488 P.2d 322, 324 (1971). Accordingly, “efforts by the
prosecution to shift the burden of proof onto a defendant are
improper and implicate the due process clauses of the fourteenth
amendment to the United States Constitution and article I,
section 5 of the Hawai#i Constitution.” State v. Hauge, 103
Hawai#i 38, 55-56, 79 P.3d 131, 148-49 (2003).
We agree that the prosecutor’s comment concerning
Austin’s lack of an alibi constituted misconduct insofar as the
comment might infer that Austin bore the burden of proving that
he had an alibi on the date of Skinner’s death. Likewise, the
prosecutor’s remark regarding whether Austin’s testimony was
corroborated by other evidence may also have qualified as
51
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
misconduct to the extent that it might infer that Austin had a
burden to produce evidence tending to corroborate his testimony.
However, the comments were harmless beyond a reasonable
doubt and did not affect Austin’s substantial rights. Prior to
closing argument, the circuit court instructed the jury that
“[t]he defendant has no duty or obligation to call any witnesses
or produce any evidence,” and that the presumption of innocence
“places upon the prosecution the duty of proving every material
element of the offense charged against the defendant beyond a
reasonable doubt.” During his closing argument, defense counsel
stated multiple times that the State bore the burden of proving
its case beyond a reasonable doubt. For example, defense counsel
stated: “Gerald has no burden of proof. He has no duty to
present evidence. He has no duty to present witnesses. . . .
And he has no burden at all to prove his innocence.” Further,
during the State’s rebuttal closing argument, the prosecutor
asserted that “the prosecution has the burden of proof. And it’s
a burden that I glad ly [sic] bear.”
Based on the foregoing, and in light of the totality of
the evidentiary record, we do not believe that the prosecutor’s
fleeting comments in closing argument concerning Austin’s lack of
an alibi and uncorroborated testimony affected his substantial
rights, as the comments were harmless beyond a reasonable doubt.
52
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Consequently, the circuit court did not plainly err by failing to
intervene and address the comments during the State’s closing and
rebuttal closing argument.
With respect to Austin’s second burden-shifting
argument, we hold that the State’s remarks on the DNA evidence
were not improper. Fairly read, the prosecutor did not insinuate
or otherwise imply that Austin bore the burden of refuting the
State’s DNA evidence. Rather, in making the disputed comments,
the prosecutor simply restated the evidence presented at trial--
that Austin’s DNA had been found in the fluid samples recovered
from Skinner’s body and that the darker-colored pubic hair found
on Skinner could have been Austin’s--and appropriately commented
on the legitimate inferences that such evidence supported--that
Austin was the individual who brought about Skinner’s death.
Such comments fell within the wide latitude that prosecutors have
in discussing the state of the evidence, and the reasonable
inferences that can be drawn therefrom, during closing argument.
Clark, 83 Hawai#i at 304, 926 P.2d at 209. Consequently, the
prosecutor’s remarks concerning the DNA evidence did not
constitute misconduct.
We conclude that although two of the prosecutor’s
comments may have improperly inferred that Austin bore the burden
of proving that he had an alibi and producing evidence to
53
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
corroborate his testimony, the comments were harmless beyond a
reasonable doubt and did not affect Austin’s substantial rights.
Thus, the circuit court did not plainly err by not interceding
and taking corrective action. We further conclude that the
prosecutor’s comments regarding the State’s DNA evidence did not
constitute misconduct.
2. Misstating the Elements of the Offense
Austin argues that his conviction should be overturned
because the prosecutor “completely misstated the second element
of Murder in the Second Degree[6] and the State’s burden with
regard to HRS § 706-660.2[7]” when he stated:
But the prosecution is only required to prove what the
law says. And based on the instructions that rest on
6
HRS § 707-701.5(1) (Supp. 1988) provides: “(1) Except as provided in
section 707-701, a person commits the offense of murder in the second degree
if the person intentionally or knowingly causes the death of another person.”
7
HRS § 706-660.2 (Supp. 1988) provides, in relevant part:
Notwithstanding section 706-669, a person who, in the
course of committing or attempting to commit a felony,
causes the death or inflicts serious or substantial
bodily injury upon a person who is:
(1) Sixty years of age or older;
. . . .
and such disability is known or reasonably should be
known to the defendant, shall, if not subjected to an
extended term of imprisonment pursuant to section 706-
662, be sentenced to a mandatory minimum term of
imprisonment without possibility of parole as follows:
(1) For murder in the second degree–-up to
fifteen years.
54
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
your lap, there are only three things.
Has the evidence demonstrated that on the date
prescribed, that the defendant intentionally or
knowingly engaged in certain conduct? 2) As a result
of that conduct, did he cause Ms. Skinner’s death?
And 3) Once you’ve concluded that, has the evidence
demonstrated that Ms. Skinner was 60 years or older?
That’s all that the prosecution has placed upon it as
its burden.
Austin asserts that the prosecutor relieved the State of its
obligation to prove Austin’s state of mind with regard to causing
Skinner’s death, and relieved the State of its burden of proving
Austin’s state of mind as to Skinner’s age. As Austin did not
object to the comment at trial, we must again consider whether
the prosecutor’s comment constituted misconduct and, if so, where
the circuit court plainly erred in declining to take corrective
action. Clark, 83 Hawai#i at 304, 926 P.2d at 209.
Arguments of counsel which misstate the law are subject
to objection and to correction by the court. State v. Mahoe, 89
Hawai#i 284, 290, 972 P.2d 287, 293 (1998). However, improper
comments by a prosecutor can be cured by the court’s instructions
to the jury, and it will be presumed that the jury adhered to the
court’s instructions. State v. Kupihea, 80 Hawai#i 307, 317-18,
909 P.2d 1122, 1132-33 (1996).
In State v. Klinge, the defendant was convicted of
terroristic threatening in the first degree for having placed
objects resembling bombs near several religious institutions. 92
Hawai#i 577, 580-83, 994 P.2d 509, 512-15 (2000). On appeal, the
55
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
defendant argued that the prosecutor misstated the elements of
terroristic threatening in the first degree when he stated that
the jury could find the defendant guilty if the jury determined
that the defendant “scared a lot of people . . . [or] caused
evacuation of one or more building[s]. . . . ” Id. at 596, 994
P.2d at 528 (alterations in original).
This court observed that “it is clear that the
prosecutor misstated the law” when he made the foregoing comment.
Id. However, the Klinge court held:
Nonetheless, we believe the instructions of the
court in its charge to the jury, both before and after
the presentation of evidence, remedied any potential
harm to Klinge. Throughout the trial, the court made
it clear to the jury that it was to apply the law as
it was given to them by the court. Thus, in view of
the court’s proper instructions on terroristic
threatening, Klinge fails to show that the
prosecution’s momentary misstatement of law amounts to
reversible error.
Id. (emphasis added).
The facts in Klinge parallel the facts in this case.
Here, the prosecutor misstated the law when he omitted that the
State was required to prove that the defendant “intentionally or
knowingly caused the death of another person” when commenting on
the elements of murder in the second degree. See HRS § 707-
701.5. The prosecutor also misstated the law when he left out
the fact that the State had to prove that Austin knew or
reasonably should have known that Skinner was over the age of
sixty. See HRS § 706-660.2.
56
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
However, as in Klinge, the prosecutor’s misstatements
here did not substantially prejudice Austin’s right to a fair
trial. Prior to the parties’ closing arguments, the circuit
court correctly instructed the jury on the elements of murder in
the second degree and the requirements of HRS § 706-660.2; the
jury members already had these correct instructions before them
as the parties delivered their closing arguments. The circuit
court also instructed that “[i]n the event that a statement or
argument made by a lawyer contradicts or misstates these
instructions, you must disregard that statement or argument and
follow these instructions,” and that “[s]tatements or remarks
made by counsel are not evidence.” Further, during the State’s
closing argument, the prosecutor correctly reiterated the
elements of murder in the second degree and properly articulated
the State’s burden under HRS § 706-660.2. Defense counsel also
correctly restated the elements of murder in the second degree
during his closing argument.
In view of the circuit court’s correct instructions,
both parties’ otherwise accurate recitations of the law
throughout their closing arguments, and the evidentiary record as
a whole, we hold that the prosecutor’s momentary misstatements of
the law did not affect Austin’s substantial rights, as they were
harmless beyond a reasonable doubt. Accordingly, the circuit
57
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
court did not plainly err by not stepping in and taking
corrective action.
3. Assertions that Austin “Lied” to the Police and
Jury.
Austin makes four arguments in support of his
contention that the circuit court erred in denying his motion for
a new trial based on the prosecutor’s comments that Austin “lied”
to the jury at trial and “lied” to the police in his recorded
interview. We address each argument in turn.
First, Austin argues that while this court “has not yet
held that it is absolutely improper for a prosecuting attorney to
refer to the defendant [as] a ‘liar’[8] or say that he ‘lied,’”
he “urge[s] this court to adopt a rule that blanket assertions
that a defendant has lied or is a liar constitute prosecutorial
misconduct and that where the defendant’s credibility is a key
issue in determining his guilt such misconduct demands that the
defendant receive a new trial.”
Austin correctly observes that this court has not
previously prohibited prosecutors from arguing in their closing
arguments that the defendant “lied.” However, we believe that
his proposed rule should not be adopted because it is at odds
8
During closing argument, the prosecutor did state that Austin “lied” and
that several of Austin’s statements in his recorded police interview and
direct examination were “lies,” but he did not at any point call Austin a
“liar.”
58
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
with our precedent addressing the boundaries of a prosecutor’s
ability to, during closing argument, comment on the state of the
evidence and draw inferences regarding the defendant’s
credibility when the defendant testifies as a witness at trial.
In State v. Clark, the defendant was charged with
attempted second-degree murder for allegedly stabbing his wife in
the chest after an argument. 83 Hawai#i at 291-93, 926 P.2d at
196-98. At trial, conflicting evidence was presented to the jury
regarding the defendant’s drug usage prior to the incident. Id.
at 305, 926 P.2d at 210. While the complaining witness testified
that she and the defendant had ingested cocaine, the defendant
denied taking any drugs and testified that he was familiar with
drugs, that he knew where to purchase them, that he was with his
wife the previous evening when she purchased and used cocaine,
and that he attempted to purchase more cocaine for her. Id.
Based on this conflicting evidence, the prosecutor argued,
“[w]hen the defendant comes in here and tells you that he was not
on cocaine that night, that just--it’s a cockamamie story and
it’s asking you to take yourselves as fools.” Id. at 304, 926
P.2d at 209 (alteration in original) (footnote omitted). On
appeal, the defendant argued that the comment constituted
prosecutorial misconduct. Id.
The Clark court first observed that “[i]t is generally
59
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
recognized under Hawai#i case law that prosecutors are bound to
refrain from expressing their personal views as to a defendant’s
guilt or the credibility of witnesses.” Id. However, this court
noted that “a prosecutor, during closing argument, is permitted
to draw reasonable inferences from the evidence and wide latitude
is allowed in discussing the evidence.” Id. This court further
acknowledged that “[i]t is also within the bounds of legitimate
argument for prosecutors to state, discuss, and comment on the
evidence as well as to draw all reasonable inferences from the
evidence.” Id. Recognizing that other courts have upheld
similar remarks in closing argument, the Clark court held:
Based upon the [conflicting] evidence in the
present case and the context in which the phrase
“cockamamie story” was utilized . . . the prosecutor
was well within the limits of propriety to infer, and
indeed argue, that Clark’s denial of drug usage was
improbable, untruthful, and, in short, a “cockamamie
story.” Accordingly . . . there was no misconduct on
the part of the prosecutor in this case.
Id. at 306, 926 P.2d at 211.
Since Clark, this court has upheld the following
comments made by a prosecutor during closing argument concerning
the defendant’s credibility (or lack thereof) as a witness: (1)
argument that the defendant, as well as some of his witnesses,
had testified falsely, but that the State’s witnesses had not,
Cordeiro, 99 Hawai#i at 425-26, 56 P.3d at 727-28; (2) argument
that the “evidence adduced at trial did not comport with defense
counsel’s assertions during opening statements,” State v.
60
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Valdivia, 95 Hawai#i 465, 482-83, 24 P.3d 661, 678-79 (2001); and
(3) argument that the defendant’s testimony was disingenuous
because he failed to “explain away” how his DNA was found at the
crime scene. Hauge, 103 Hawai#i at 54-57, 79 P.3d at 147-50.
In sum, we have held that 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. This court has even
permitted the use of a brusque colloquialism as a means of
arguing that the defendant is not credible as a witness. See
Clark, 83 Hawai#i at 306, 926 P.2d at 211. Thus, while we do not
condone or encourage the use of terse idioms or, as was the case
here, repeated assertions that the defendant “lied” as a
preferred means of questioning the credibility of a defendant’s
testimony, we believe that such remarks do not amount to
misconduct when they are supported by the evidence adduced at
trial. Our position on this point is consistent with appellate
courts in other jurisdictions across the nation, which have also
determined that it is not improper for a prosecutor to assert
during closing argument that the defendant “lied” when such
assertions are supported by the evidence that was presented
trial. See e.g., People v. Edelbacher, 766 P.2d 1, 30 (Cal.
1989) (in bank) (“Referring to the testimony and out-of-court
61
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
statements of a defendant as ‘lies’ is an acceptable practice so
long as the prosecutor argues inferences based on evidence rather
than the prosecutor’s personal belief resulting from personal
experience or from evidence outside the record.”); State v.
McKenzie, 134 P.3d 221, 229 (Wash. 2006) (en banc) (“Where a
prosecutor shows that other evidence contradicts a defendant’s
testimony, the prosecutor may argue that the defendant is
lying.”); Commonwealth v. Coren, 774 N.E.2d 623, 631 n.9 (Mass.
2002) (“[W]here the evidence clearly supports the inference that
the defendant lied, the prosecutor may fairly comment on it.”);
Hull v. State, 687 So. 2d 708, 721 (Miss. 1996) (“It is not
improper for a prosecutor to comment that the defendant was lying
when the contention is supported in the record.”).9
9
See also, State v. Lankford, 399 P.3d 804, 827-28 (Idaho 2017) (holding
that “although the repeated use of the term ‘liar’ and its various grammatical
forms is troubling and ill-advised, it did not rise to the level of
prosecutorial misconduct” because “the prosecutor supported his assertions
with evidence presented during the trial”); Davis v. State, 698 So. 2d 1182,
1190 (Fla. 1997) (concluding that the prosecutor’s references to the
defendant’s tape-recorded confessions as “bald-faced lies” during closing
argument “did not cross the line into improper argument” because “[w]hen it is
understood from the context of the argument that the charge is made with
reference to the evidence, the prosecutor is merely submitting to the jury a
conclusion that he or she is arguing can be drawn from the evidence”); Cooper
v. State, 854 N.E.2d 831, 835-37 (Ind. 2006) (determining that the
prosecutor’s references to the defendant’s testimony as “lies” and
characterization of the defendant as a “liar” was not improper because the
evidence at trial supported the inference that the defendant did not tell the
truth when he testified before the jury); People v. Mastowski, 155 A.D.3d
1624, 1625 (N.Y. App. Div. 2017) (determining that the prosecutor’s argument
that the “defendant ‘lie[d] to the police about his alcohol consumption’ prior
to operating his motor vehicle . . . was fair comment on the evidence”
(brackets in original)); United States v. Sullivan, 522 F.3d 967, 982 (9th
Cir. 2008) (concluding that the prosecutor’s assertions that the defendant
“lied or misled the bankruptcy court” and “[told] lies to bankruptcy counsel”
during closing argument did not constitute misconduct because “they were a
(continued...)
62
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Second, Austin asserts that the prosecutor engaged in
misconduct by expressing his personal opinion regarding Austin’s
credibility by repeatedly stating that Austin had lied. This
argument is also without merit.
In Cordeiro, the defendant was convicted of murder in
the second degree, robbery in the first degree, and two firearms-
related offenses. 99 Hawai#i at 397, 56 P.3d at 699. On appeal,
the defendant argued that the prosecutor engaged in misconduct
when during closing argument, the prosecutor suggested that
certain witnesses, including the defendant, were lying, while
others were being truthful. Id. at 425, 56 P.3d at 727.
9
(...continued)
fair inference” from facts supported by evidence at trial (brackets in
original)); State v. Gonzales, 884 N.W.2d 102, 118-19 (Neb. 2016) (declining
to adopt a per se rule that a prosecutor engages in misconduct by arguing that
the defendant “lied,” and concluding that, based upon the context in which it
was made, the prosecutor’s statement that the defendant lied in that case did
not constitute misconduct because the remark “was nothing more than commentary
on what the prosecutor believed the evidence showed”); Commonwealth v.
Sanchez, 82 A.3d 943, 981-82 (Pa. 2013) (concluding that the prosecutor did
not engage in misconduct in remarking that the defendant had lied during his
trial testimony because such argument was a proper response to defense
counsel’s arguments regarding the credibility of other witnesses, and because
the prosecutor did not characterize his attack on the defendant’s credibility
as reflecting his own opinion); Duke v. State, 99 P.3d 928, 956-59 (Wyo. 2004)
(holding that the prosecutors’ repeated assertions to the jury that the
defendant had lied did not constitute misconduct because “the prosecutors were
merely pointing out that the evidence and the testimony of the prosecution’s
witnesses contradicted that of [the defendant] and express[ed] the
prosecutions’ position upon inferences to be drawn from that testimony and the
other evidence presented at trial”); Rogers v. State, 280 P.3d 582, 589
(Alaska Ct. App. 2012) (“It is not plain error for the prosecutor to assert
that the defendant is a liar when that argument is based on the evidence.”);
People v. Starks, 451 N.E.2d 1298, 1305 (Ill. App. Ct. 1983) (“It is not
improper comment to call the defendant or a witness a ‘liar’ if conflicts in
evidence make such an assertion a fair inference.”); State v. Pedro S., 865
A.2d 1177, 1187-88 (Conn. App. Ct. 2005) (holding that although
unprofessional, prosecutor’s repeated assertions that the defendant had “lied”
and that the defendant was a “liar” did not constitute misconduct because the
argument was supported by the evidence at trial).
63
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
This court acknowledged that “prosecutors are bound to
refrain from expressing their personal views as to a defendant’s
guilt or the credibility of witnesses.” Id. at 424-25, 56 P.3d
at 726-27. But, this court noted that “Cordeiro has failed,
however, to cite any example . . . of the DPA expressing his
personal views regarding Cordeiro’s guilt or a witness’
credibility. Nor can we find any.” Id. at 425, 56 P.3d at 727.
The Cordeiro court concluded that the prosecutor appropriately
argued that the defendant and his alibi witnesses were untruthful
“based on the conflicting evidence presented at trial” and that
such argument was “permissible under our holding in Clark.” Id.
As in Cordeiro, Austin has failed to cite any language
indicating that the prosecutor was expressing his personal
opinion as to Austin’s credibility during the State’s closing and
rebuttal arguments. The prosecutor’s argument that Austin was an
untrustworthy witness because he had “lied” was properly based on
conflicting evidence presented at trial. Austin’s statements in
his recorded interview, in which he unequivocally denied having
sexual intercourse with Skinner or any other individual in the
Makua Ali#i building, directly conflicted with his testimony at
trial, in which he stated that he had consensual sex with an
elderly resident at the Makua Ali#i building. Therefore, because
the prosecutor’s comments reflected the reasonable inference that
64
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Austin was not truthful in his 2012 recorded statement, his
testimony before the jury, or both, we hold that the comments
were not improper.10
Third, relying upon State v. Basham, 132 Hawai#i 97,
319 P.3d 1105 (2014), Austin appears to argue that the prosecutor
committed misconduct by introducing the fact that Austin lied to
the police for the first time during closing argument. Austin
seems to contend that pursuant to Basham, such a comment must be
10
Relying upon State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (1986), the
Dissent contends that the prosecutor improperly expressed his opinion
regarding Austin’s credibility during closing argument by repeatedly
contending that Austin lied. Dissent at 13-14. The Dissent observes that the
prosecutor in Marsh similarly argued that the defendant lied during her
testimony, and concludes that Marsh supports that the prosecutor in this case
committed misconduct for making comparable comments. Dissent at 13-14.
Indeed, in Marsh, the prosecutor made the following statement during
closing argument regarding the defendant’s testimony: “Use your common sense,
ladies and gentlemen. That is not true. It’s another lie. It’s a lie,
ladies and gentlemen, an out-and-out lie.” 68 Haw. at 660, 728 P.2d at 1302.
However, the Marsh court’s analysis did not turn on this comment alone. See
id. at 660-61, 728 P.2d at 1302-03. This court observed that the prosecutor
made numerous comments during closing argument which explicitly expressed her
personal opinion that the defense witnesses did not testify truthfully. Id.
at 660, 728 P.2d at 1302. For example, in commenting on the testimony of one
of the defense’s witnesses, the prosecutor stated: “You should entirely
disregard their testimony because, if you will remember, every one of them
lied on the stand. . . . I sincerely doubt if she [witness] had seen Christina
Marsh there.” Id. (alterations in original) (emphasis added). Similarly, in
commenting on a witness’s testimony, the prosecutor stated: “I find that
awfully hard to believe.” Id.
Therefore, in Marsh, this court held that the prosecutor’s comments were
improper because they explicitly referenced her personal opinion that the
defense witnesses and the defendant lied in their testimony at trial. Id. at
660-61, 728 P.2d at 1302-03. This court did not determine that the
prosecutor’s statement that the defendant lied, in and of itself, improperly
reflected the prosecutor’s personal opinion with respect to the defendant’s
credibility. See id. Accordingly, Marsh is distinguishable from the present
case, and does not support that the prosecutor committed misconduct by
expressing his personal opinion regarding Austin’s credibility. See Cordeiro,
99 Hawai#i at 424, 56 P.3d at 726 (concluding that the prosecutor did not
commit misconduct because “Cordeiro has failed, however, to cite any example,
as in Marsh, of the DPA expressing his personal views regarding Cordeiros’s
guilt or a witness’ credibility”).
65
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
considered especially prejudicial to the defendant, and that
“[a]ny allegation that Austin lied to the police should have been
weighed under HRE Rules 401, 402, 403, and 404.” As Austin did
not raise this argument before the circuit court, we must again
review for plain error. Clark, 83 Hawai#i at 304, 926 P.2d at
209.
In Basham, the defendant and his son were convicted of
assault in the first degree as accomplices in connection with an
altercation that arose out of a car accident. 132 Hawai#i at
100-03, 106, 319 P.3d at 1108-11, 1114. The defendant and his
son had allegedly aided another person, referred to as “Driver,”
who had punched the complaining witness in the face. Id. at 101-
02, 319 P.3d at 1109-10. While discussing the defendant’s role
in the altercation during closing argument, the prosecutor
argued, for the first time, that the defendant “lied to the
police” because the officer who was initially dispatched to the
scene identified the defendant as the driver of one of the cars
involved in the accident, and that only the defendant could have
been the source of such information. Id. at 105, 319 P.3d at
1113. On appeal, the defendant contended that the prosecutor
engaged in misconduct by arguing that the defendant lied to the
police. Id. at 108, 319 P.3d at 1116. The ICA affirmed the
defendant’s conviction. Id.
66
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
On certiorari, this court first acknowledged that the
defendant did not testify at trial and that the record was
unclear as to what the defendant had said to the police officer.
Id. at 113, 319 P.3d at 1121. This court further noted that
because lying to the police “is generally perceived by the public
as particularly wrongful and may have also constituted the crime
of false reporting to law-enforcement authorities,” any evidence
that the defendant had lied to the police would have been subject
to HRE Rule 404(b)11 as evidence of “other acts,” in addition to
being subject to balancing under HRE Rule 403.12 Id. at 113-14,
319 P.3d at 1121-22. Thus, because the prosecutor referenced the
defendant’s lie for the first time during closing argument, this
court held:
11
HRE Rule 404(b) (1985) provides, in pertinent part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible where such evidence is
probative of another fact that is of consequence to
the determination of the action, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, modus operandi, or absence of
mistake or accident.
12
HRE Rule 403 (1985) provides:
Although 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.
67
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Basham had no opportunity to rebut the allegation with
evidence. It is apparent that the prosecutor is not
permitted to bypass the evidentiary rules in this
manner by asking the jury to infer conduct which, if
it had been introduced during the trial, would have
been subject to the limitations of Rule 404(b).
Id. at 114, 319 P.3d at 1122.
The facts of the present case are significantly
distinguishable from those in Basham. In Basham, this court held
that the prosecutor had engaged in improper argument because in
remarking that the defendant had lied to the police for the first
time during closing argument, the prosecutor introduced a new
substantive fact that may have been inadmissible at trial and for
which no evidence had been introduced. 132 Hawai#i at 113-15,
319 P.3d at 1113. By contrast, here, the prosecutor’s comment
that the defendant had lied to the police was directed towards
attacking Austin’s credibility as a witness and was based on
evidence properly admitted at trial. Therefore, Basham is
inapposite to the present case, and Austin’s argument based
thereupon is without merit.
Finally, Austin argues that the prosecutor engaged in
misconduct when he stated: “We’re not here simply because his
genetic fingerprint is in the murder victim. We’re also here
because when confronted and given an opportunity to explain
himself, he lied to the police. And he’s lied to you.” To
Austin, the comment improperly “implied that Austin would not
have been arrested or charged if he told the truth to the police”
68
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
and “[misled] the jury about the evidence, injected issues
broader than Austin’s guilt or innocence into the jury’s
deliberation of the case, and was a total misrepresentation of
the underlying facts.”
Austin mischaracterizes the prosecutor’s statement and
ignores the context in which it was made. Prior to making the
contested comment in rebuttal argument, the prosecutor stated:
The defendant would . . . paint the defendant in
a sympathetic light to explain why he was unable to
come up with the truth when he spoke with the police.
It was 22 years ago, the defense says to you. Who
remembers anything that happened 22 years ago? The
police had what they wanted and they were pressing
him.
The defendant knew why he was [at the police
station] and what he was being questioned about. . . .
There was no mystery why he was there. He wasn’t
tricked. He wasn’t coerced. Do not feel sorry for
him. He knew why he was there and he opted to speak.
He told you under cross-examination that there
was only one woman in the Makua Alii building with
whom he had had intercourse. That’s what he said.
How is it when he’s being questioned by homicide
detectives that he conveniently forgets that one
experience and cannot make the connection in his mind
that the police are there to question him about that
one experience?
Do not feel sorry for him. As [defense counsel]
said, We’re not here to make decisions based on pity,
passion, or prejudice. But the defendant is not
deserving of your pity and he is unworthy of your
passion. He knew why he was there, and he straight-up
lied to the police.
We’re not here simply because his genetic
fingerprint is in the murder victim. We’re also here
because when confronted and given an opportunity to
explain himself, he lied to the police. And he’s lied
to you.
(Emphasis added.) Viewed in context, it appears that the
prosecutor was responding to defense counsel’s assertion during
Austin’s closing argument that Austin did not mention that he had
69
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
sexual intercourse with an elderly woman in the Makua Ali#i
building during his interview with the police because Austin was
intimidated and uncertain about the matters he was being asked
about. Such comments fell within the wide latitude that
prosecutors have in rebuttal closing to respond to arguments
raised by defense counsel in closing argument, and did not
constitute misconduct. State v. Mars, 116 Hawai#i 125, 142, 170
P.3d 861, 878 (App. 2007).
To conclude, we believe that 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 to the jury.
4. Use of Disparaging Epithets
Austin argues that the prosecutor attempted to inflame
the passions of the jury and distract them from properly
considering the evidence when the prosecutor characterized Austin
as “a permanent resident of Fantasy Island,” and “a
misunderstood Casanova, wooer of women of the Makua Alii
building, someone whom Edith Skinner found so -- so appealing, so
irresistible that she knowingly invited a stranger to her home on
a second-chance encounter and invited him to have sexual
intercourse with her . . . he’s simply a misguided and
misunderstood Casanova.” We review for plain error, as Austin
did not object to the comment at trial. Clark, 83 Hawai#i at
70
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
304, 926 P.2d at 209.
In State v. Pacheco, the defendant was charged with
escape in the second degree when, after being arrested for
drinking in a public park, the defendant ran away from the
police, leaped over a wall into a stream, and swam therein until
the fire department managed to extract him, with some difficulty
due to his resistance. 96 Hawai#i 83, 87-88, 26 P.3d 572, 576-77
(2001). During the State’s rebuttal argument, the prosecutor
commented on the defendant’s uncooperativeness, arguing:
“Everybody that wanted to help him, this defendant spit at, he
kicked at. He was totally uncooperative. He was being an
asshole. And that explains his actions.” Id. at 93, 26 P.3d at
582. This court held that the comment was improper because:
[T]he DPA’s characterization of Pacheco as an
“asshole” strongly conveyed his personal opinion and
could only have been calculated to inflame the
passions of the jurors and to divert them, by
injecting an issue wholly unrelated to Pacheco’s guilt
or innocence into their deliberations, from their duty
to decide the case on the evidence.
Id. at 95, 26 P.3d at 584.
Unlike the comments by the prosecutor in Pacheco, the
prosecutor’s remarks in this case did not convey his personal
opinion about Austin’s personality or conduct. Here, the
prosecutor used colloquialisms to simultaneously describe
Austin’s testimony, in which Austin stated that he and Skinner
had engaged in consensual sexual intercourse after speaking
71
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
briefly on two occasions, and comment on the implausibility
thereof. These remarks appear to respond to defense counsel’s
assertions in Austin’s closing argument that while the evidence
demonstrated that Austin had consensual sex with Skinner, Austin
was not responsible for her death.
In short, the prosecutor’s comments did not constitute
misconduct because they did not “strongly convey[] [the
prosecutor’s] personal opinion” in an attack on Austin’s
character or personality, nor were they “calculated to inflame
the passions of the jurors and to divert them . . . from their
duty to decide the case on the evidence.” Pacheco, 96 Hawai#i at
95, 26 P.3d at 584. The remarks appropriately commented on the
evidence and fell within the wide latitude that prosecutors have
to respond to comments made by defense counsel in the defense’s
closing argument. Clark, 83 Hawai#i at 304, 926 P.2d at 209,
Mars, 116 Hawai#i at 142, 170 P.3d at 878.
5. Reliance on Facts Not in Evidence in Delivering
the Summary Narrative and Misstating the Evidence
a. The Summary Narrative
Austin argues that the narrative that the prosecutor
presented to the jury during closing argument, in which he
summarized and described the State’s theory of how Skinner’s
death occurred, was “merely tangentially related to the evidence
that was actually introduced at trial” and was “more akin to the
72
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
presentation of new evidence to the jury.”
Upon review of the record, we conclude that all of the
statements that the prosecutor made throughout his summary
narrative were permissibly drawn inferences that were reasonably
supported by the evidence adduced at trial. We therefore hold
that the circuit court did not err in ruling that the prosecutor
did not engage in misconduct when he presented the summary
narrative during closing argument.
b. Misstating the Evidence and Misleading the
Jury.
Austin did not object to either of the following two
instances of alleged misconduct at trial, nor did he raise these
arguments in his motion for a new trial. Accordingly, we review
for plain error. Clark, 83 Hawai#i at 304, 926 P.2d at 209.
Austin contends that the prosecutor misstated the
evidence when he “indicated that nobody had testified that
Skinner ‘went swimming weekly at the Elk’s club in Waikiki.’”
Austin argues that such comment was false because Stephen Skinner
testified that as part of her “daily routine” in 1989, Skinner
would “go down quite a bit down to the Elk’s Club to swim.”
Austin’s argument is without merit because the
prosecutor’s statements accurately commented on the state of the
evidence. Clark, 83 Hawai#i at 304, 926 P.2d at 209 (“It is also
within the bounds of legitimate argument for prosecutors to
73
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
state, discuss, and comment on the evidence as well as to draw
all reasonable inferences from the evidence.”). While Stephen
Skinner testified that Skinner would “go down quite a bit down to
the Elk’s Club to swim,” no other witness explicitly testified
that Skinner went swimming on a “weekly” basis. Thus, the
prosecutor did not completely mischaracterize or misstate the
evidence and did not engage in misconduct in making the contested
comment. We therefore do not reach the issue of plain error.
Finally, Austin argues that “the DPA exerted undue
pressure and distracted the jury from its duty of impartiality
and due care” when the prosecutor stated: “After you’re excused
to begin your deliberations, select the foreperson and vote
quickly because justice in this case has waited too long.”
The prosecutor’s comment was improper insofar as the
timeliness of a verdict should not be a pertinent consideration
on jurors’ minds as they deliberate. But, the comment was
harmless beyond a reasonable doubt, and did not affect Austin’s
substantial rights. While the prosecutor did encourage the jury
to resolve the case quickly, he did not explicitly invite the
jury to disregard their duty to carefully evaluate the evidence,
or to base their verdict on anything other than the evidence.
Further, shortly before asking the jury to “vote quickly,” the
prosecutor remarked that “this is in fact a serious case worthy
74
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
of your complete attention and thoughtful analysis.” And, the
record indicates that the jurors engaged in thoughtful
deliberations based on the facts and the law, and were not
primarily motivated by a desire to resolve the case quickly. For
example, on the second day of deliberations, the jurors sent a
jury communication that sought “clarification of what second
degree murder is.”
Thus, we hold that while the prosecutor’s comment may
have improperly brought the timeliness of reaching a verdict to
the jurors’ attention, the remark was harmless beyond a
reasonable doubt, and did not affect Austin’s substantial rights.
The circuit court consequently did not plainly err by not
interceding and taking corrective action.
E. Austin’s sentence violated Article 1, Section 10 of the
United States Constitution and HRS § 1-3.
According to Austin, the circuit court’s sentence of
life imprisonment without the possibility of parole was an
unconstitutional ex post facto application of the law and
violated HRS § 1-3, because HRS § 706-661 did not provide for a
life sentence without the possibility of parole in 1989, when the
offense in this case took place.13
13
Austin did not bring this issue to the attention of the circuit court
and raises this argument for the first time on appeal. Hawai#i Rules of Penal
Procedure (HRPP) Rule 52(b) provides that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the
(continued...)
75
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Article I, Section 10 of the United States Constitution
provides: “No State shall . . . pass any . . . ex post facto
Law.” The United States Supreme Court has stated that “[t]he
Constitution forbids the application of any new punitive measure
to a crime already consummated, to the detriment or material
disadvantage of the wrongdoer.” Lindsey v. Washington, 301 U.S.
397, 401 (1937). Furthermore, HRS § 1-3 (1985) states: “No law
has any retrospective operation, unless otherwise expressed or
obviously intended.”
Austin was sentenced to an extended term of life
imprisonment without the possibility of parole pursuant to HRS §§
706-661 and 706-662(5) (2014). HRS § 706-661 (2014) states that
“[t]he court may sentence a person who satisfies the criteria for
any of the categories set forth in section 706-662 to an extended
term of imprisonment, which shall have a maximum length as
follows: (1) For murder in the second degree--life without the
possibility of parole[.]” However, the version of HRS § 706-661
that applied at the time of Skinner’s murder did not contain the
provision permitting such an extended sentence for those
convicted of murder in the second degree. See HRS § 706-661
(1985). That provision was not added to the statute until 1999,
13
(...continued)
attention of the court.” Here, Austin’s extended sentence impacts his
constitutional rights. Pursuant to HRPP Rule 52(b), we notice plain error,
and consider the arguments he raises in this point of error on the merits.
76
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
and the legislature did not express any intent for the amendment
to apply retroactively. See HRS § 706–661 (1999).
Therefore, we hold that Austin’s extended sentence
constitutes the application of a new punitive measure to a crime
that was already consummated in violation of Article I, Section
10 of the United States Constitution and HRS § 1-3. Accordingly,
we vacate Austin’s sentence and remand the case for resentencing
in accordance with HRS § 706-661 (1985).
IV. CONCLUSION
Based on the foregoing, we affirm in part and vacate in
part the circuit court’s June 18, 2014 Judgment, Guilty
Conviction, and Sentence and remand the case to the circuit court
for resentencing.
William H. Jameson, Jr. /s/ Mark E. Recktenwald
for defendant-appellant
/s/ Paula A. Nakayama
Donn Fudo for
plaintiff-appellee /s/ Sabrina S. McKenna
77