State v. Basham.Â

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Electronically Filed
Supreme Court
SCWC-11-0000758
06-FEB-2014
09:24 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

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STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

MICHAEL W. BASHAM, Petitioner/Defendant-Appellant,

and

ALLIKEA BASHAM, aka Aliikea I. Basham, Petitioner/Defendant.

SCWC-11-0000758

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000758; CR. NO. 10-1-0663)

February 6, 2014

ACOBA, McKENNA, AND POLLACK, JJ., WITH NAKAYAMA, J., DISSENTING,
WITH WHOM RECKTENWALD, C.J. JOINS

OPINION OF THE COURT BY POLLACK, J.

Petitioner/Defendant-Appellant Michael W. Basham

(Basham) appeals from the January 31, 2013 Judgment on Appeal of

the Intermediate Court of Appeals (ICA), affirming the June 14,
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2011 Judgment of Conviction and Sentence entered by the Circuit

Court of the First Circuit (circuit court). This appeal raises

the issue of whether a prosecutor in closing argument may orally

provide definitions to key terms in a critical jury instruction,

thereby modifying the instructions read to the jury. For the

reasons set forth herein, we vacate the ICA and circuit court

judgments and remand for a new trial.

I.

On April 28, 2010, Respondent/Plaintiff-Appellee State

of Hawai#i (State) indicted Basham and his son, Aliikea Basham

(Aliikea), upon a charge of assault in the first degree under

Hawai#i Revised Statutes (HRS) § 707-710.1 The State alleged that

on September 22, 2007, Basham and Aliikea (collectively,

“Defendants”) intentionally or knowingly caused serious bodily

injury to Steven Bloom (Bloom).

Defendants’ jury trial commenced in circuit court on

June 6, 2011.2

A.

The State’s witnesses testified to the following facts.

On September 22, 2007, Bloom and his wife, Jennifer

Chavez (Chavez) were driving in the Ewa Beach area, where they

1
HRS § 707-710 (1993) provides: “(1) A person commits the offense
of assault in the first degree if the person intentionally or knowingly causes
serious bodily injury to another person. (2) Assault in the first degree is a
class B felony.”

2
The Honorable Randal K. O. Lee presided.

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had recently purchased a house. Bloom was driving their car, a

white Saturn. As they were driving in search of a beach, they

were involved in a minor motor vehicle collision with a blue car,

which hit the back of their car. Neither Bloom nor Chavez was

injured in the accident.

Both cars then pulled off to the side of the road.

Bloom got out and approached the driver of the blue car

(Driver),3 confirmed that Driver was uninjured, and suggested

that they exchange insurance information. Driver responded that

he had to call his father.

Bloom returned to his car to retrieve his insurance

card. As he walked back towards the blue car, he saw a man, whom

he later identified as Aliikea, come running up from the beach.

Bloom testified that when Aliikea arrived at the scene, he was

“extremely loud, accusing me of causing the accident, saying it’s

all my fault, trying to intimidate me.” Aliikea approached Bloom

and pushed him.

Shortly after Aliikea arrived, Basham also came up to

the road from the beach. Bloom testified that “when he first

came up, [Basham] was . . . just as excited,” but within a minute

or so, Bloom heard Basham “say to the other one,” “don’t . . .

3
Driver was not prosecuted in this case. Driver’s identity was
disputed by the parties. Aliikea testified that his brother Kepa Basham,
Basham’s second youngest son, was Driver. The State argued that Hanau Basham,
Basham’s youngest son, was Driver, based on Chavez’s identification during a
photographic lineup.

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hit him, don’t lick him.” Bloom thought, “Oh, he’s actually got

the cool head in this, so okay, calm down.”

Bloom testified that once Aliikea and Basham arrived,

Driver “became more vocal.” Aliikea then pushed Bloom and put

his hand up to or grabbed Bloom’s throat. Bloom knocked

Aliikea’s hand away, and told Chavez to get behind him. Bloom

does not recall what happened next, and remembers only regaining

consciousness later in his car.

Chavez testified to a similar sequence of events as

Bloom. When Aliikea arrived at the scene, he was “very upset,”

telling Bloom, “This is your fault,” and “kind of pushing [Bloom]

back.” When Chavez tried to get between Aliikea and Bloom,

Aliikea pushed Chavez away. Bloom told Chavez to stay away in

Spanish, which is Chavez’s first language. Aliikea “start[ed]

getting very upset and started pushing” Bloom more strongly.

Basham arrived and told Aliikea, “Don’t lick him.”

Chavez testified that Aliikea then pushed Bloom,

causing Bloom to fall backwards on the ground and hit his head.

When Bloom tried to get up, Aliikea grabbed Bloom’s neck. Bloom

tried to take Aliikea’s hand away, but fell again. Chavez

testified that after Bloom fell again, “[B]y that time [Basham]

grab [Bloom] from the back and hold him down, and then . . .

[Aliikea] kick him, and then at that moment, the other guy . . .

who was driving the car jump on top of [Bloom’s] belly.”

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On cross-examination, Chavez testified that she told

Honolulu Police Department (HPD) Officer Chad Barrett about

Basham grabbing and holding Bloom down by the shoulders, and

about Aliikea kicking Bloom. However, she acknowledged that the

written statement, which she had dictated to Officer Barrett just

after the incident, did not include such information. Officer

Barrett wrote her statement down for her because she was unable

to write in English at the time. She signed the statement,

attesting that it was “true and correct to the best of my

knowledge.” Nevertheless, Chavez testified that she told Officer

Barrett that Bloom was held down and kicked, but Officer Barrett

did not write it down and it was not reflected in the written

statement.

Chavez testified that after Bloom fell to the ground,

Driver “jump[ed] on top of [Bloom’s] belly,” and began punching

Bloom in the face. Bloom started having a seizure, and Chavez

“started screaming,” “He’s dead. . . . You’ll kill him.” Chavez

testified that was when “they stop[ped].” Chavez helped Bloom

walk to the car. She placed Bloom in the front passenger seat,

got into the driver’s seat, and closed and locked all of the

doors.

Chavez clarified that Basham held Bloom down by the

shoulders, “[o]nly in the beginning,” when Driver jumped on

Bloom. No one held down Bloom’s shoulders when Driver began

punching Bloom. On cross-examination, however, Chavez testified

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that after Bloom fell, “they pushed him down again,” and by the

time Driver jumped on Bloom, “[b]y that moment . . . [o]ne was on

the left side, the other on the right side. And that’s why

[Bloom] couldn’t stand up.”

Chavez was on the phone with a 911 operator throughout

the incident. Following the operator’s instructions, once she

and Bloom were back in their car, she turned on the car in order

to drive away. However, Basham began punching the window on the

driver’s side door. The paramedics and police arrived soon

after.

Aliikea and Basham remained at the scene when the

police arrived. However, Driver had already run away at that

point.

HPD Officer Michael Dela Cruz testified that he was

patrolling in the Ewa Beach area on September 22, 2007. He

responded to a dispatch and arrived at the scene of the accident

at around 3:00 p.m. When he arrived, Bloom, Chavez, Basham and

Aliikea were present at the scene. Officer Dela Cruz testified

that he conducted a field show-up, in which officers “detain

possible suspects to have a witness or a complainant make

positive identification.” Bloom participated in the field show-

up and informed Officer Dela Cruz that “he could not positively

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identify either males [sic] at that time.” Chavez also

participated in the field show-up and identified Basham.4

HPD Officer Keola Kopa testified that on September 22,

2007, the police were dispatched to respond to “several males

fighting.” Officer Kepa’s responsibility “was only to document

the accident, . . . nothing more, just the vehicles involved.”

He attempted to identify the driver of each car involved in the

accident. He explained that “if there’s no one behind the

driver’s seat, then we try to get witnesses, and we try to

ascertain the driver, either by asking or just – anything at the

scene that we can see to help us ascertain who was driving.”

Based on his investigation, Officer Kopa determined that Basham

was the driver of the blue car. Officer Kopa spoke to Basham,

but could not remember whether Basham stated that the blue car

was his.

HPD detective John Coleman testified that on September

25, 2007, he was assigned to be the lead investigator on the

case. He testified that during the course of his investigation,

he determined that neither Basham nor Aliikea had any prior

criminal history of arrests or convictions. Officer Barrett, who

wrote down Chavez’s dictated statement after the incident, was

not called as a witness by the State.

4
Although the prosecutor also asked Officer Dela Cruz if Chavez
identified Aliikea, the transcript of the trial does not indicate that Officer
Dela Cruz responded after the court overruled defense counsels’
objections.

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B.

Basham did not testify during the trial and did not

present any witnesses on his behalf.

Aliikea testified to the following facts. He testified

that his father, Basham, most recently worked as an adult

correctional officer at the Halawa prison. On September 22,

2007, Aliikea and his father were at the beach with family and

friends. At some point during the day, his brother left to go

and get some ice.

Aliikea was on the beach when he noticed what appeared

to be an accident on the road involving his father’s car, which

he knew his brother was driving. Basham told Aliikea to go and

check on what had happened. Aliikea testified that when he

approached the cars, he was “not calm” and “appeared angry ‘cause

I was just frustrated with my brother” and could not “see how

people could get in [an] accident on that bridge.” Upon

arriving, he said, “[W]hat the hell is going on” to both his

brother and to Bloom and Chavez. He went to talk to Driver about

what had happened. Bloom came towards them to ask about

insurance, and Aliikea told him, “[C]an you just back away and so

I can figure out what is going on, my dad is almost here.” Bloom

backed away but then “came back and kept on coming back to talk

about the insurance.” Aliikea put up his hand to push Bloom

away. He testified that he did not yell at Bloom or grab or

choke Bloom’s neck.

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When Basham arrived, he began talking to Bloom, while

Aliikea tried to calm Driver down because “[Driver] was getting a

little crazy.” Basham then came back to where Aliikea and Driver

were standing. Aliikea’s attention was directed towards Driver.

Aliikea explained that as he was telling Driver to “just let dad

handle it,” he heard Basham say watch out, and felt Basham push

him out of the way. Aliikea turned and saw Bloom falling. He

testified that Basham had pushed Bloom. He saw Bloom try to get

up, and “all of a sudden” Driver was on top of Bloom, straddling

him. Then Driver began punching Bloom in the face. Aliikea

stood there “in shock” at first and then pulled Driver off of

Bloom. Basham walked over to try to help Bloom up, but Chavez

started “whacking” Basham, saying “you’re killing him.” At some

point, Aliikea realized that Driver was no longer present.

Aliikea testified that neither he nor Basham held Bloom

to the ground at any time. He also testified. that once Bloom

and Chavez were in the car, Basham told him to stop the car

because it looked like they were attempting to leave. Aliikea

knew that the police were on their way. He stood in front of the

car to prevent Bloom and Chavez from leaving.

After the defense rested and the State re-called

Chavez, Defendants’ counsel moved for a judgment of acquittal “as

to the issue of principal versus accomplice.” The court denied

the motion.

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C.

The State requested jury instructions related to

accomplice liability under HRS § 702-222, which provides that a

person is an accomplice of another in the commission of an

offense if, with the intention of promoting or facilitating the

commission of the offense, the person aids or agrees or attempts

to aid the other person in planning or committing it. The

State’s proposed instructions included four separate instructions

on accomplice liability. However, the State did not request an

instruction defining the mens rea element of intent to promote or

facilitate the commission of the offense.

During the settling of jury instructions, which

occurred just before closing arguments, the parties agreed that

the court’s proposed instruction on accomplice liability would be

given as modified. The court’s modified instruction did not

include a definition for the phrase “intent to promote or

facilitate the commission of the offense.” The prosecutor did

not object to the lack of such definitions during the settling of

jury instructions.

Accordingly, prior to closing arguments, the court gave

the following jury instruction on accomplice liability:

A defendant charged with committing an offense may be guilty
because he is an accomplice of another in the commission of
the offense. The prosecution must prove accomplice
liability beyond a reasonable doubt.

A person is an accomplice of another in the commission of an
offense if, with the intent to promote or facilitate the
commission of the offense, he aids or agrees or attempts to

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aid the other person in the planning or commission of the
offense.

Mere presence at the scene of an offense or knowledge that
an offense is being committed, without more, does not make a
person an accomplice to the offense. However, if a person
plans or participates in the commission of an offense with
the intent to promote or facilitate the offense, he is an
accomplice to the commission of the offense.

(Emphases added).

The court also instructed the jury generally:

“Statements or remarks made by counsel are not evidence. You

should consider their arguments to you but you are not bound by

their recollections or interpretations of the evidence.”

The prosecutor then proceeded with his closing

argument.5 The prosecutor began his argument by characterizing

the case as a simple case turning on the issue of witness

credibility:

Ultimately this is a simple case. It is a simple case
because it turns on one issue and one issue alone. That
issue is witness credibility. You have heard during this
relatively brief trial two versions of events as to what
transpired on that road leading to Oneula Beach Park. As
the jurors, as the finders of fact, it is your sole
responsibility to determine the credibility of the
witnesses.

(Emphasis added). After stating that it was the “sole

responsibility” of the jurors “to determine the credibility of

the witnesses,” the prosecutor declared, “on behalf of the

5
The court allotted fifty minutes for the prosecutor’s closing
argument and twenty-five minutes for each defendant. Hawai#i Rules of Penal
Procedure (HRPP) Rule 24.1(b) provides that “[i]n addressing the jury, each
party shall be allowed to fully and fairly state the party’s theory of the
case and the reasons that entitle the party to a verdict.”

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prosecution,” Bloom and Chavez were “completely credible

witnesses” with “absolutely no reason” to lie:

On behalf of the prosecution, I adamantly state to you, that
Mr. and Mrs. Bloom have been completely credible witnesses,
that they are worthy of your belief. They have no axe to
grind, no revenge to be had. They did not know the
Defendants Basham before this incident. They have
absolutely no reason to fabricate or otherwise make up the
accounts that they have recited to you in explicit detail.

(Emphases added).

The prosecutor contrasted Bloom and Chavez with

Aliikea, and informed the jury that Aliikea “has absolutely no

reason to tell you the truth”:

Defendant Aliikea Basham, on the other hand, has decided to
testify, which is his right. When a defendant testifies,
his credibility is to be weighed as any other witness. But
you need to keep something in mind. Defendant Aliikea
Basham has absolutely no reason to tell you the truth. So
the selection or the choice before you in weighing the
credibility of the witness is this. Your willingness to
believe two people who have no reason to lie to you versus
one person who has no reason to tell you the truth.

(Emphases added).

The prosecutor then reviewed the charges against

Defendants, “[a]gainst that understanding” that the jury had to

make a choice between believing two people who have no reason to

lie versus one person who has no reason to tell the truth.

In discussing accomplice liability, the prosecutor

first stated the elements of such liability in accordance with

the jury instructions:

On page 24 of your instructions, and you don’t have to turn
to them now, allow me just to talk to you about it, the
concept of accomplice liability was explained to you. A
person is an accomplice of another if in the commission of
Assault in the First Degree, with intent to promote or
facilitate the commission of Assault in the First Degree,

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the person aids or agrees or attempts to aid the person in
the planning or the commission of the offense.

(Emphasis added). The prosecutor continued, “Let’s define a

couple of those words and put it in everyday English that we can

understand. A person is an accomplice if with intent to promote

-- what does that ‘promote’ mean? It simply means for our

purposes to encourage, the desire to bring about.” (Emphasis

added).

Basham’s counsel immediately objected. During the

ensuing bench conference, Basham’s counsel objected that the

prosecutor’s definition was a “far cry” from the legal definition

of the term “intent to promote,” which was defined very narrowly

to mean that the “defendant had the intent to promote the

commission of the particular offense”:

[Basham’s counsel]: Ask the Court to instruct the jury the
use of the word “intent” clearly under Hawai#i state law,
State v. Yip, Yabusaki, Soares, the words “intent to
promote” is used in very narrow circumstances, meaning that
with regard to accomplice liability proof must be had beyond
a reasonable doubt that the defendant had the intent to
promote the commission of the particular offense. And [the
prosecutor’s] use of it is a far cry from what the legal
definition is under the Hawai#i case law and intent has to
be construed in terms of the intentional state of mind that
the Court has given. So his current argument is highly
misleading and prejudicial if you let it stand.

(Emphasis added). Aliikea’s counsel joined in the objection.

However, the court overruled the objection.

The prosecutor then continued to define the terms of

the jury instruction on accomplice liability, informing the jury

that “promote” meant “to encourage,” and “facilitate” meant “to

make easy” or “to bring about”:

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[Prosecutor]: The term “promote” means to encourage. What
does the word “facilitate” mean? Using your everyday life
experience, that’s a rather big word, to facilitate. How
about to bring about, that’s what facilitate means.
Facilitate, for those of you who studied Latin, might be
based in the root of facile. What does facile mean? Easy
or to make easy or to bring about.

(Emphases added). The prosecutor argued that “at a minimum,”

Basham and Aliikea were “guilty of Assault in the First Degree as

an accomplice.”

In discussing Basham’s role in the incident, the

prosecutor argued that Basham “lied to the police” because

Officer Kopa identified Basham as the driver of the blue car, and

only Basham could have been the source of such information:

You know that Defendant Michael Basham lied to the police.
How do you know that? When Officer Keola Kopa, the second
police officer who testified, he had the suit and the -- the
stubble, he told you his only job at the scene was to
document the minor motor vehicle collision. And whom did he
identify as the operators? Steven Bloom, Michael Basham.
Who could the only source of that information be? Not
Steven Bloom who had been knocked unconscious. Michael
Basham.

(Emphases added). The prosecutor argued, “In other words,

[Basham] took the role of his son as the driver and thus lied to

the police.”

The prosecutor concluded his argument by stating that

Basham and Aliikea “intentionally or knowingly engaged in conduct

with the intent to promote or facilitate the commission of

Assault in the First Degree,” by “actively aiding the third

Basham in literally rendering unconscious [Bloom].”

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D.

Basham’s counsel then proceeded with his closing

argument. Counsel first reminded the jury that they were

required to apply the “specific legal definition” of terms as

“they appear in the [jury] instructions and how they are defined

to you,” rather than the “everyday common sense” definitions.

Counsel then addressed the prosecutor’s statement that Aliikea

had no reason to tell the truth:

Now, [the prosecutor] appears to be saying that when Aliikea
Basham took the stand he had no reason to tell you the
truth. Now, I take offense with that statement because
Aliikea took the stand, he took the oath to tell the truth
just like all the other witnesses in this case, and you
heard Judge Lee say when a witness testifies, whether it’s a
defendant or not, they’re supposed to be treated equally
like any other witness. So the way I take [the
prosecutor’s] statement you should not believe Aliikea
because he's a defendant in the case, it does violence to
that legal principle that the Judge has instructed us on.

(Emphasis added).

Counsel continued by arguing that Chavez’s testimony

was not credible. Counsel argued that if anything, the State

would have to prove that Defendants were accomplices because

neither Aliikea nor Basham actually caused the injuries to Bloom.

He argued that based on Aliikea’s testimony, “certainly Michael

is not guilty of anything.” Counsel contended that the

prosecutor had not caught Aliikea in a lie during his testimony

because “he wasn’t lying.” On the other hand, Chavez’s

testimony, counsel argued, included facts favorable to both

sides.

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E.

Following closing arguments, Aliikea’s counsel moved

for mistrial based on two instances of alleged misconduct during

the prosecutor’s rebuttal, in which the prosecutor informed the

jury that Officer Barrett no longer lived on the island of O#ahu

and argued that Aliikea’s testimony “tracked” Chavez’s dictated

statement to Officer Barrett because Aliikea read the statement.6

The court had granted the motion to strike both comments during

the prosecutor’s rebuttal.

Basham’s counsel joined in the motion, incorporating

the same objections and additionally arguing that the

prosecutor’s use of the word “‘intent’ in the context of the

accomplice liability issue” was “clearly erroneous.” Basham’s

counsel again noted that Hawai#i cases made it clear that the

word “intent” as used in the accomplice liability statute

required the State to prove the defendant had the specific intent

6
During rebuttal, the prosecutor stated, “The defense would make a
big deal how come Officer Barrett isn’t here to testify? Well, as Officer
Dela Cruz told you, Officer Barrett is no longer a policeman. In fact Officer
Barrett no longer lives on the island of Oahu.” No evidence had been adduced
as to the fact that Officer Barrett no longer lived on the island, and the
court struck the comment.
Later during the rebuttal, the prosecutor responded to Aliikea’s
counsel’s argument that Aliikea was telling the truth because he said things
that either hurt him or his father. The prosecutor stated, “The best kind of
lies are those that track the truth to a point and stop because those kinds of
lies make it difficult to distinguish if it’s in fact truth or lie.” The
prosecutor argued that Aliikea “couldn’t come up and say I wasn’t there or I
wasn’t argumentative or I didn’t touch [Complainant] because to do so would
make his version so incredible, so unworthy of belief that he would
automatically have to be discredited.” Thus, the prosecutor argued, “[W]hat
[Aliikea] did was he tracked the statement. And [defense counsel] said it,
Aliikea Basham’s statement tracks [Chavez’s] dictated statement to Officer
Barrett. It does that because -- the reasonable inference is that Aliikea
Basham read the statement[.]”

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to cause the resulting offense. The prosecutor’s argument was

“clearly a misstatement of the law and in no way is a reasonable

construction of the accomplice liability statute.” Counsel

argued that although the court had overruled his objection during

the prosecutor’s closing, the court “also denied a request for .

. . cautionary instructions, so the prejudice has not been cured

and I move for mistrial at this time.”

The court denied the motion, explaining with respect to

the prosecutor’s definition of intent, “the Court had instructed

the jurors on the law and the law clearly indicates that the

person is an accomplice if with the intent to facilitate the

commission of an offense.”

Subsequently on June 14, 2011, the jury returned

verdicts finding Aliikea and Basham guilty of assault in the

first degree. The court sentenced both Aliikea and Basham to ten

years of imprisonment.

II.

A.

On appeal to the ICA, Basham argued in relevant part

that 1) the circuit court “abused its discretion in denying the

defense’s motion for mistrial following the prosecutor’s numerous

acts of misconduct during closing argument”; 2) the circuit court

“abused its discretion in overruling the defense’s objection to

the prosecutor’s misstatement of the law on accomplice liability,

refusing to give a cautionary instruction, and then denying the

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motion for mistrial”; and 3) there was insufficient evidence to

sustain Basham’s conviction for assault in the first degree and

any lesser-included offenses.

In support of the first point of error, Basham

referenced several instances of prosecutorial misconduct,

including the prosecutor’s assertion that Basham lied to the

police by telling Officer Kopa that he was the driver of the blue

car.7 Basham contended that the prosecutor’s statement was not a

reasonable inference from the evidence “because there was more

than one possible source, other than [Basham], for determining

the driver.” In addition, Officer Kopa never testified that

Basham told him he was the driver. Thus, Basham argued that the

prosecutor’s statement was an attempt to attack his credibility,

which was “especially offensive to his right to a fair trial

because [he] did not testify.”

In addition, Basham contended that the prosecutor, by

making the assertion, intended to comment on his failure to

testify. The jury would also naturally and necessarily have

interpreted the statement as “a comment on Michael’s failure to

talk to the police and failure to testify.” Basham argued that

the prosecutor’s misconduct was not harmless because the

7
Additionally, Basham argued that the prosecutor committed
misconduct by: 1) stating that Officer Barrett no longer lives on the island;
2) stating that Aliikea’s testimony tracked Chavez’s dictated statement to
Officer Barrett; and 3) informing the jury that their verdict was important,
“not only to the defendants but . . . to an orderly community,” and stating,
“We resolve things by avoiding the use of violence.”

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statement attacked his credibility, no curative instruction was

given, and the State’s case “rested upon an accomplice theory and

a single, biased eye-witness[.]”8

With respect to the second point of error, Basham

argued that the prosecutor misstated the law on accomplice

liability under HRS § 702-222 by separately defining the terms

“promote” and “facilitate” used in the statute. By defining the

terms, “there was a risk that the jury would confuse the State’s

burden of proving that the defendants had the specific ‘intent to

promote and facilitate the commission of the offense’ as

synonymous with the element of aiding and agreeing or attempting

to aid[.]” In other words, the jury was misled to believe that

it was enough for the State to prove that the defendants merely

‘encouraged’ the driver to assault Bloom or ‘made easy’ the

assault on Bloom, when the law requires that the State also

prove” the mens rea of intent to promote or facilitate the

commission of the assault.9

8
Basham also argued that the cumulative effect of the four
instances of misconduct, see supra note 7, required a new trial. Basham
further argued that the double jeopardy clause barred the State from re-
prosecuting him because the prosecutor’s repeated misconduct “exhibited the
prosecutor’s willful purpose to undermine the trial process,” and it could not
be said beyond a reasonable doubt that he received a fair trial.

9
This argument was also raised to this court in Basham’s writ of
certiorari and at oral argument. See Audio recording: Oral Arguments, STATE
OF HAWAI#I, Respondent/Plaintiff-Appellee vs. MICHAEL W. BASHAM,
Petitioner/Defendant-Appellant, and ALIIKEA BASHAM, Aka Aliikea I. Basham,
Defendant (No. SCWC-11-0000758) Thursday, August 15, 2013, at 15:25
(Available at http://www.courts.state.hi.us/ courts/oral_arguments/
archive/oasc11758.html, last visited Jan. 21, 2014.)

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Basham contended that the jury should have minimally

been given a cautionary instruction that they adhere to the

court’s instructions on the law of accomplice liability.

Third, Basham argued that there was insufficient

evidence to support his conviction for assault in the first

degree and for any lesser-included offenses. He noted that the

State prosecuted him under the theory of accomplice liability

because it was clear he did not cause Bloom’s injuries. Viewed

in the strongest light for the prosecution, the evidence

established that Basham said “don’t hit him, don’t lick him,”

either pushed or grabbed Bloom before Bloom fell to the ground,

and held Bloom by the shoulders when Bloom was on the ground, but

stopped once Driver jumped onto Bloom. Basham argued that by

warning his son not to hit Bloom, he demonstrated his intent to

prevent the assault, and the fact that he let go of Bloom’s

shoulders when Driver jumped onto Bloom showed that he did not

intend to promote or facilitate an assault.

B.

In response, the State argued that neither defendant

objected to the prosecutor’s statement that Basham lied to the

police; thus, the claim must be reviewed for plain error. The

State contended that the “evidence was unequivocal that a young

man with red-tinted hair was the driver.” The evidence

demonstrated that Officer Kopa, after speaking to the witnesses

at the scene, determined that Basham was the driver. According

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to the State, only four people were at the scene, and neither

Bloom nor Chavez would have identified Basham as the driver.

Aliikea testified that his brother was the driver, leaving only

Basham as the “sole person who would have lied to Officer Kopa.”

Thus, the prosecutor’s assertion was a reasonable inference and

did not constitute error. Additionally, the assertion was not a

comment on Basham’s failure to testify.

In regard to the prosecutor’s statement of the law on

accomplice liability, the State contended that the prosecutor

referred several times to the court’s jury instruction. The

State argued that because “promote” and “facilitate” are not

defined by the statute, “the prosecutor utilized the words’ usual

and ordinary meanings to assist the jury in understanding the

words in the context of the accomplice liability instruction.”

This was proper because “words of a law are generally to be

understood in their most known and usual signification.”

Thus, the circuit court did not abuse its discretion by

overruling the defense objections to the prosecutor’s

definitions, denying the request for a cautionary instruction,

and denying the defense’s motion for mistrial.

The State contended that assuming arguendo that the

prosecutor’s remarks were improper, Basham was not denied a fair

trial. The State argued there was “no reason to believe that the

jury did not follow the court’s instructions,” and “the evidence

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adduced proving that the defendants were accomplices was very

strong.”

Finally, on the sufficiency of the evidence issue, the

State argued that when viewed in the light most favorable to the

prosecution, the evidence showed “that the defendants held

[Bloom] down while the driver pummeled him.” Even assuming that

Basham stopped holding Bloom when Driver jumped onto Bloom and

began punching, “the defendants had already accomplished their

purpose of aiding the driver’s commission of the crime, for

[Bloom] was absolutely defenseless.” Thus, the State contended

that there was substantial evidence supporting Basham’s

conviction.

C.

On the first issue, the ICA held that the prosecutor’s

statement that Basham lied to the police was a “permissible and

reasonable inference based on evidence in the record that Basham

misrepresented himself as the driver involved in the collision.”

State v. Basham, No. CAAP-11-0000758, 2012 WL 6738798, at *2

(Haw. App. Dec. 31, 2012) (SDO). On the second issue, the ICA

determined that the prosecutor did not misstate the law by

defining the words “promote” and “facilitate.” Id. at *3.

Rather, the prosecutor “referenced the plain meaning of the

words.” Id.

Regarding the sufficiency of the evidence, the ICA

found that “Basham concedes the evidence shows Basham pushed or

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grabbed [Bloom] before [Bloom] fell to the ground, and that

Basham held [Bloom] to the ground.” Id. at *4. Although Basham

maintained that the evidence did not sufficiently demonstrate

intent to assault because Basham stopped holding Bloom to the

ground once Driver began punching Bloom, the ICA held that there

was substantial evidence supporting the jury’s conclusion in this

case. Id.

Accordingly, the ICA affirmed Basham’s conviction. Id.

at *5.

III.

In his application for writ of certiorari (Application)

to this court, Basham raises two points of error for review:

A. Whether the ICA gravely erred in determining that the
prosecutor did not engage in misconduct during closing
argument when: (1) the prosecutor argued that Petitioner
lied to the police, although Petitioner did not testify at
trial and the police officer could not remember what
Petitioner had told him and (2) the prosecutor misstated the
law on accomplice liability, thereby confusing the jury as
to the elements of the assault offense.

B. Whether the ICA gravely erred in concluding that the
evidence was sufficient to sustain a conviction for assault
based upon accomplice liability.

IV.

We first address Basham’s argument that the prosecutor

misstated the law on accomplice liability during closing

argument.

HRS § 702-222 (1993), titled “Liability for conduct of

another; complicity,” provides in relevant part that: “A person

is an accomplice of another in the commission of an offense if:

(1) With the intention of promoting or facilitating the

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commission of the offense, the person . . . (b) Aids or agrees or

attempts to aid the other person in planning or committing it[.]”

In this case, the prosecutor informed the jury during

closing argument that the word “promote” “simply means for our

purposes to encourage, the desire to bring about.” After the

court overruled defense counsel’s objection, the prosecutor

continued and informed the jury that the word “facilitate,” means

“to bring about.” In addition, he stated that the root word of

“facilitate” is “facile,” which he defined as “easy or to make

easy or to bring about.” This argument is problematic for

several reasons.

First, HRS § 702-222 does not define the words

“promote” or “facilitate.” The statute is derived from the

nearly identical accomplice liability provision within the Model

Penal Code, Section 2.06 (1962), which also does not define the

terms.10 See State v. Aiwohi, 109 Hawai#i 115, 126, 123 P.3d

1210, 1221 (2005) (“The Hawai#i Penal Code is substantially

derived from the Model Penal Code. Accordingly, it is

appropriate to look to the Model Penal Code and its commentary

for guidance.” (Footnote omitted)). The Comment to Section 2.06

of the Model Penal Code provides that an accomplice, in having

10
Model Penal Code § 2.06(3) provides:

A person is an accomplice of another person in the commission
of an offense if:
(a) with the purpose of promoting or facilitating the
commission of the offense, he
(i) Solicits such other person to commit it, or
(ii) Aids or agrees or attempts to aid such other person in
planning or committing it ***

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the purpose of promoting or facilitating the commission of the

offense, is required to “have as his [or her] conscious objective

the bringing about of conduct that the Code has declared to be

criminal”:

Subsection (3)(a) requires that the actor have the purpose
of promoting or facilitating the commission of the offense,
i.e., that he have as his conscious objective the bringing
about of conduct that the Code has declared to be criminal.
This is not to say that he must know of the criminality of
the conduct; there is no more reason here to require
knowledge of the criminal law than there is with the
principal actor. But he must have the purpose to promote or
facilitate the particular conduct that forms the basis for
the charge, and thus he will not be liable for conduct that
does not fall within this purpose.

Model Penal Code § 2.06 cmt. (1962) (emphasis added).

The meaning of the phrase “intention of promoting or

facilitating the commission of the offense” as used in HRS § 702-

222 must be interpreted within the context of the accomplice

statute and the derivative source of the statute, which is the

Model Penal Code. See HRS § 1-15(1) (“meaning of ambiguous words

may be sought by examining the context . . . in order to

ascertain their true meaning”). In the context of the accomplice

statute, the Model Penal Code makes clear that “intent to promote

or facilitate” means to have the conscious objective of bringing

about the commission of the offense.

Having an intent to make easy or to encourage criminal

conduct is not equivalent to having an intent to bring about the

commission of the criminal offense. While the prosecutor

referenced “to bring about” in defining both “promote” and

“facilitate,” by also defining the words in terms of

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“encouraging” or “making easy,” the prosecutor reduced the

culpability necessary to satisfy the statutory definition of an

accomplice.

The ICA held that the “prosecutor did not misstate the

law, but referenced the plain meaning of the words.” Basham,

2012 WL 6738790, at *3. However, the words “promoting” and

“facilitating” can be attributed several ordinary meanings.

“Promote” or “promoting” may be defined as “to advance in

station, rank, or honor,” “to contribute to the growth or

prosperity of,” “further,” or “to help bring (as an enterprise)

into being.” Merriam-Webster.com, http://www.merriam-

webster.com/dictionary/promoting (last visited Dec. 9, 2013).

“Facilitate” or “facilitating” may be defined as “to make

easier,” “to help cause,” “to help (something) run more smoothly

and effectively,” or “help bring about.” Merriam-Webster.com,

http://www.merriam-webster.com/dictionary/facilitating (last

visited Dec. 9, 2013).

Neither party should be permitted to argue during

closing arguments for alternative definitions of terms in the

jury instructions that best fits their own theory of the case.

If such arguments were permitted, then either side could orally

amend the court’s instructions during closing argument by

providing their own popular definitions of key terms in the

instructions. The jurors would then be able to select the

definition they preferred or remembered when applying the court’s

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instructions during deliberations. Such a practice would be

especially problematic if it involved critical instructions that

are key to the State’s theory of prosecution, as the accomplice

instruction was in this case.

It is precisely to avoid such confusion that the rules

provide a specific procedure for the court, rather than the

counsel or the parties, to instruct the jury on the law. Hawai#i

Rules of Penal Procedure (HRPP) Rule 30(b) (2012) provides that

parties “shall file written requests that the court instruct the

jury on the law.” When a request is filed, counsel is “entitled

to be heard thereon.” HRPP Rule 30(c). “The court may revise

the language of any or all of the requested instructions which

are approved by the court in whole or in part[.]” HRPP Rule

30(d). The court is required to “inform counsel of its proposed

action with respect to any such revision made or instructions

prepared by the court, and any changes thereon made by the court

shall be reduced to writing and submitted to counsel prior to

their arguments to the jury.” HRPP Rule 30(d). Jury

instructions that are settled as set forth above “shall be read

to the jury.” HRPP Rule 30(d).

The rules prohibit oral amendments to the jury

instructions once they have been given to the jury. HRPP Rule

30(e) provides that the court “shall in no case orally qualify,

modify or explain to the jury any instruction . . . .” (Emphasis

added). When the jury requests further instruction during

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deliberation on its verdict, the court may provide further

instructions, but the instructions must be “reduced to writing”

and “first submit[ed]” to counsel. HRPP Rule 30(e)

In this case, the above procedures were followed by the

parties until the prosecutor orally modified the court’s

accomplice instruction by defining the words “promote” and

“facilitate.” The prosecutor did not submit a written request

for such definitions, despite submitting four other proposed

instructions related to accomplice liability. The prosecutor

also did not object to the lack of such definitions during the

settling of jury instructions, which occurred just before closing

arguments. Thus, neither the court nor defense counsel had

approved of defining “promote” as “to encourage” and “facilitate”

as “to make easy.”

“‘[A]rguments of counsel which misstate the law are

subject to objection and to correction by the court.’” State v.

Espiritu, 117 Hawai#i 127, 140, 176 P.3d 885, 898 (2008) (quoting

State v. Mahoe, 89 Hawai#i 284, 290, 972 P.2d 287, 293 (1998))

(brackets omitted). However, in this case, the court overruled

defense counsel’s objection to the prosecutor’s definitions, and

no curative instruction was given. Given that the prosecutor’s

definitions reduced the culpability required by HRS § 702-222 and

effectively amended the court’s jury instructions, the court was

required to sustain defense counsel’s objection pursuant to HRPP

Rule 30(e). Cf. State v. Haanio, 94 Hawai#i 405, 415, 16 P.3d

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246, 256 (2001) (“[I]n our judicial system, the trial courts, not

the parties, have the duty and ultimate responsibility to insure

that juries are properly instructed on issues of criminal

liability.”), overruled in part on other grounds, State v.

Flores, __ Hawai#i __, __ P.3d __ (2013); State v. Kikuta, 125

Hawai#i 78, 90, 253 P.3d 639, 651 (2011) (“With respect to jury

instructions, it is the duty of the trial court to ensure that

the jury is properly instructed.”).

Because the court overruled defense counsel’s

objection, the court endorsed the definitions given by the

prosecutor. See Espiritu, 117 Hawai#i at 143, 176 P.3d at 901

(Because defense counsel’s objections to prosecutor’s

misstatement of law during closing argument were overruled, “the

jury would reasonably perceive that the misstatement of the law

was not incorrect.”); State v. Schnabel, 127 Hawai#i 432, 453,

279 P.3d 1237, 1258 (2012) (“[B]y overruling defense counsel’s

objection, the court, at least tacitly, placed its imprimatur

upon the [prosecutor’s] improper remarks.”) (quoting State v.

Pacheco, 96 Hawai#i 83, 96, 26 P.3d 572, 585 (2001)) (quotation

marks and brackets omitted)). Thus, the prosecutor’s definitions

of the accomplice instruction became the court’s instructions

upon the law, and the jury was essentially instructed that it was

permissible to find the intent element of the accomplice

instruction to be present if Basham acted with the “intent to

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encourage or to make easy the commission of the offense.” Such

an instruction is a misstatement of the law on accomplice

liability.11

“If improper comments are made by a prosecutor, ‘harm

or prejudice to a defendant can be cured by the court’s

instructions to the jury.’” Espiritu, 117 Hawai#i at 143, 176

P.3d at 901 (quoting State v. Melear, 63 Haw. 488, 497, 630 P.2d

619, 626 (1981)) (brackets omitted). “Correlatively, the failure

to correct misstatements of law by a prosecutor may result in

reversal of a defendant’s conviction.” Id.

The prosecutor did not make a curative statement

specifically directed at correcting the improper definitions that

had been provided. Additionally, no curative instruction was

given by the circuit court. Although the court generally

instructed the jury prior to closing arguments that “[s]tatements

or remarks made by counsel are not evidence,” this instruction

did not neutralize the prosecutor’s oral amendment to the

accomplice instruction, which misstated the requirements of the

law. “[I]nasmuch as the specific misstatements in question have

to do with law and not evidence,” the court’s instruction that

“statements or remarks by counsel are not evidence” is

11
The dissent describes the prosecutor’s definitions of promote and
facilitate as a “routine rephrasing of the law, analogous with Basham’s
discussion of intent and “proof beyond a reasonable doubt.” Dissent at 5.
The significant distinction is that the prosecutor’s definitions bore directly
on Basham’s alleged accomplice liability by orally modifying the instructions
given by the court with the effect of expanding culpable conduct beyond that
prescribed by statute.

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“inapposite.” Id. See State v. Tuua, 125 Hawai#i 10, 17, 250

P.3d 273, 280 (2011) (“[T]he prosecution has not pointed to

Hawai#i case law suggesting that a court’s generic instructions

that arguments of counsel are not evidence, issued prior to

improper statements, can cure misconduct in close cases involving

the credibility of witnesses.”).

Additionally, while the court properly instructed the

jury on accomplice liability, that instruction did not cure the

prosecutor’s misstatements of the law, where no specific curative

instruction relating to the misstatements was given. See Melear,

63 Haw. at 497, 630 P.2d at 626-27 (trial court’s instruction to

the jury to disregard prosecutor’s improper arguments and court’s

“immediate reading of the entire charge to the jury removed any

harm or prejudice”); Espiritu, 117 Hawai#i at 143, 176 P.3d at

901 (“While the court here did properly instruct the jury on the

elements of the EMED defense . . . , that instruction could not

cure [the prosecutor’s] misstatements of the law, where no

specific curative instruction relating to the misstatements were

given.”).

The misstatement of the law for which no curative

instruction was given was not harmless beyond a reasonable doubt.

See Espiritu, 117 Hawai#i at 144, 176 P.3d at 902. The State’s

evidence demonstrated that Basham told Aliikea not to hit Bloom,

and after Aliikea caused Bloom to fall to the ground, Basham held

Bloom down until Driver jumped on Bloom. There was conflicting

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testimony by Aliikea that Basham pushed Bloom, causing Bloom to

fall, but neither Aliikea nor Basham held Bloom down. The

State’s primary basis for convicting Basham of assault in the

first degree was to allege that he acted as an accomplice to

Driver. The prosecutor’s misstatement of the law and the court’s

lack of a curative instruction “bore directly” on Basham’s

alleged accomplice liability. See id. Thus, “[t]here exists, at

the least, a reasonable possibility that the error complained of

might have contributed to [Basham’s] conviction” for assault in

the first degree. See id. (even assuming the State’s evidence

strongly indicated that defendant was not acting under extreme

mental or emotional disturbance, there was at least a reasonable

possibility that the error might have contributed to the

conviction).

Basham’s conviction is therefore vacated and the case

is remanded for a new trial.12

V.

In order to provide guidance to the circuit court and

the parties on remand, we address Basham’s remaining claims of

prosecutorial misconduct.13 See State v. Pacheco, 96 Hawai#i 83,

12
“[B]ecause it cannot be said that the prosecutor’s conduct was so
egregious that viewed under an objective standpoint, Petitioner was denied his
or her right to a fair trial, reprosecution is not barred under the double
jeopardy clause.” Espiritu, 117 Hawai#i at 144, 176 P.3d at 902. See State
v. Rogan, 91 Hawai#i 405, 423, 984 P.2d 1231, 1249 (1999) (“[R]eprosecution is
barred where, in the face of egregious prosecutorial misconduct, it cannot be
said beyond a reasonable doubt that the defendant received a fair trial.”).

13
“The term ‘prosecutorial misconduct’ is a legal term of art that
refers to any improper action committed by a prosecutor, however harmless or
(continued...)

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88, 26 P.3d 572, 577 (2001) (vacating conviction and remanding

for new trial based on prosecutorial misconduct and addressing

additional issues on erroneously admitted evidence, ineffective

assistance of counsel, and choice of evils defense “[i]n order to

provide guidance to the circuit court and the parties on

remand”); State v. Davia, 87 Hawai#i 249, 252, 953 P.2d 1347,

1350 (1998) (vacating conviction and remanding for new change of

plea hearing based on district court’s failure to establish that

defendant’s plea was knowing and voluntary, but addressing

defendant’s remaining points of error “in order to provide

guidance to the district court and the parties on remand”).

The second issue raised by Basham’s application is

whether the prosecutor engaged in misconduct during closing

argument by arguing that Basham lied to the police, although

Basham did not testify at trial and the police officer could not

recall what information was given by Basham. Basham argued in

his Application that if the prosecutor had attempted to introduce

statements made by Basham to the police during the trial, those

statements would have been subject to the Hawai#i Rules of

Evidence (HRE), particularly Rules 402 through 404 regarding

relevance, prejudice, and character evidence, and Rules 802 and

803 regarding hearsay. He contended that the prosecutor’s

statement during closing argument that Basham lied to the police

13
(...continued)
unintentional.” State v. Maluia, 107 Hawai#i 20, 25, 108 P.3d 974, 979
(2005).

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“allowed the prosecutor to circumvent these evidentiary and

constitutional protections and cannot be condoned.”

“[A] prosecutor, during closing argument, is permitted

to draw reasonable inferences from the evidence . . . .” State

v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996).

“Although a prosecutor has wide latitude in commenting on the

evidence during closing argument, it is not enough that . . .

[the prosecutor’s] comments are based on testimony in evidence;

his comments must also be legitimate.” State v. Mainaaupo, 117

Hawai#i 235, 253, 178 P.3d 1, 19 (2008) (quotation marks and

citations omitted). “A prosecutor’s comments are legitimate when

they draw reasonable inferences from the evidence.” Id. at 253-

54, 178 P.3d at 19-20.

“Whether the evidence bears a logical and proximate

connection to the point the prosecutor wishes to prove [is]

perhaps the most obvious consideration[] in determining whether

an inference is reasonable.” U.S. v. Waldemer, 50 F.3d 1379,

1384 (7th Cir. 1995). It is also relevant whether the prosecutor

made the argument simply to enflame the passions of the jury.

Id. Another consideration is whether the inference asked to be

drawn

cannot be justified as a fair comment on the evidence but
instead is more akin to the presentation of wholly new
evidence to the jury, which should only be admitted subject
to cross-examination, to proper instructions and to the
rules of evidence.

Klebig, 600 F.3d at 718 (emphasis added).

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In Klebig, the court determined that it was prejudicial

error for a demonstration of physical evidence during the

prosecutor’s closing argument to allege new facts that had not

been established during the trial. The Klebig court was

concerned with preserving the defendant’s fundamental rights.

[I]t is important . . . that the inference be reasonable not
only to avoid abridging the defendant's right to cross-
examine possibly untrue testimony but also to prevent a
party from presenting to the jury in closing argument a fact
that might have been ruled inadmissible at trial (or at
least subject to a limiting instruction) simply by asserting
in closing argument that the jury could infer it from the
evidence that was presented and admitted.

Klebig, 600 F.3d at 721 (emphasis added). That is, a defendant’s

fundamental rights to confront witnesses, test evidence, and to

prevent the introduction of possibly inadmissible evidence may be

compromised merely upon an assertion in closing argument that the

jury could infer the fact from the evidence that was admitted.

Closing arguments are not the place to introduce new evidence

outside the safeguards of the Hawai#i Rules of Evidence. See

State v. Yip, 92 Hawai#i 98, at 111, 987 P.2d 996, 1009 (App

1999) (“In closing arguments, it is improper to refer to evidence

which is not in the record or has been excluded by the court.”).

In this case, during closing argument the prosecutor

argued, “You know that Defendant Michael Basham lied to the

police.” (Emphasis added). In support of this statement, the

prosecutor argued that Officer Kopa testified that he identified

Bloom and Basham as the drivers of the two cars involved in the

accident. The prosecutor contended, “Who could the only source

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of that information be? Not [Bloom] who had been knocked

unconscious. Michael Basham.” “In other words, [Basham] took

the role of his son as the driver and thus lied to the police.”

The ICA held that the “prosecutor made a permissible

and reasonable inference based on evidence in the record that

Basham misrepresented himself as the driver involved in the

collision.” Basham, 2012 WL 6738798, at *2.

The only evidence relevant to this issue was Officer

Kopa’s testimony that based on his investigation, he determined

that Basham was the driver of the blue car. Officer Kopa was

present at the scene in a limited capacity of documenting the

minor motor vehicle collision and “nothing more.” He attempted

to identify the operator of each car and indicated that “if

there’s no one behind the driver’s seat,” then the police “try to

get witnesses, . . . try to ascertain the driver, either by

asking or just –- anything at the scene that we can see to help

us ascertain who was driving.”

However, Officer Kopa did not explain how he

ascertained that Basham was driving the blue car in this case.

When he was specifically asked whether Basham told him that the

car was his, Officer Kopa responded, “I don’t remember exactly

what he said.” Basham did not testify, and none of the other

witnesses testified as to whether Basham identified himself to

the police as the driver, as opposed to the owner, of the car.

Thus, it is questionable whether the prosecutor’s statement that

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Basham must have lied to the police because he was the “only

source” of the information regarding the identity of the driver

was a reasonable inference from the evidence.

Nevertheless, even assuming this was a reasonable

inference, the prosecutor’s allegation was not merely that Basham

has previously lied. Cf. Domingo-Gomez v. People, 125 P.3d 1043,

1050 (Colo. 2005) (“The word ‘lie’ is such a strong expression

that it necessarily reflects the personal opinion of the speaker.

When spoken by the State’s representative in the courtroom, the

word ‘lie’ has the dangerous potential of swaying the jury from

their duty to determine the accused’s guilt or innocence on the

evidence properly presented at trial.”).

Rather, the specific allegation was that Basham lied to

the police, which is generally perceived by the public as

particularly wrongful and may have also constituted the crime of

false reporting to law-enforcement authorities.

Since Basham had not been charged with any misconduct

relating to the vehicle or the car collision, any evidence that

he lied to the police, if the prosecutor had sought to introduce

it during trial, would have been subject to HRE Rule 404(b) as

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evidence of “other acts.”14 The rules provide several evidentiary

safeguards for the admission of such evidence during trial.

Under Rule 404(b), the proponent of the evidence must

provide “reasonable notice” of the “date, location, and general

nature” of the evidence. In this case, the record does not

indicate that the prosecutor gave any notice of Basham’s alleged

misconduct of lying to the police. The failure to provide notice

undermines the purpose of Rule 404(b), which is to “reduce

surprise and promote early resolution on the issue of

admissibility.” Federal Rules of Evidence Rule 404(b) Advisory

Committee’s Note.15

Assuming that the court would have excused pretrial

notice based on “good cause shown,” see HRE Rule 404(b), the

prosecutor’s allegation that Basham lied to the police was not

subject to the protections set forth in the HRE when “other acts”

14
HRE Rule 404(b) (Supp. 2011) provides:

(b) Other crimes, wrongs, or acts. 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. In
criminal cases, the proponent of evidence to be offered
under this subsection shall provide reasonable notice in
advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the date, location,
and general nature of any such evidence it intends to
introduce at trial.

(Emphases added).

15
The notice requirement in HRE Rule 404(b) was modeled after the
Federal Rules of Evidence. H. Stand. Comm. Rep. No. 567-94, in 1994 House
Journal, at 1088.

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are sought to be admitted. If such evidence had been introduced

during trial, the court would have been required to determine the

admissibility of the evidence under HRE Rule 104(b),16 which

requires a court to consider whether there was sufficient

evidence that the alleged misconduct actually occurred.

Even if the court had determined that there was

sufficient evidence supporting admission of Basham’s alleged lie

to the police, the evidence would only have been admissible under

Rule 404(b) if the alleged lie was probative of another fact “of

consequence to the determination of the action.” Since the

alleged lie would have occurred after the alleged assault by

Driver, it does not appear under the circumstances of this case

to have been of consequence to the determination of any issue.

Additionally, pursuant to Rule 403, the court would

have been required to weigh the probative value of the evidence

against its prejudicial effect.17 If the evidence was not

excluded by any of the applicable rules, the court would still

have been required at counsel’s request to provide a limiting

16
HRE Rule 104 (1993), titled “Preliminary questions,” provides in
relevant part: “(b) Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.”

17
HRE Rule 403 (1993) 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.”

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instruction under HRE Rule 105 regarding the proper purpose for

which the evidence was admitted.18

Rather than seeking to admit evidence that Basham lied

to the police during trial pursuant to the above rules, the

prosecutor referenced the alleged lie during closing argument.

Thus, 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).

Permitting such an inference to be made during closing argument

would be contrary to the purpose of the evidentiary rules, which

is to regulate the evidence the jury may use to reach a verdict.

See American Bar Association Standards for Criminal Justice

[hereinafter “ABA Standards”], at Standard 3-5.8(a) (“In closing

argument to the jury, the prosecutor may argue all reasonable

inferences from evidence in the record. The prosecutor should

not intentionally . . . mislead the jury as to the inferences it

may draw.”) (emphases added). Cf. Donnelly v. DeChristoforo, 416

U.S. 637, 651 (1974) (“It is . . . quite ‘improper’ for a

prosecutor to insinuate to the jury the existence of evidence not

18
HRE Rule 105 (1993), titled “Limited admissibility,” provides:
“When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court,
upon request, shall restrict the evidence to its proper scope and instruct the
jury accordingly.”

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in the record and which could not be introduced without the

privilege of cross-examination.”) (Douglas, J., dissenting).

Accordingly, even assuming that the prosecutor made a

reasonable inference from the evidence by arguing that Basham

lied to the police, the allegation was not “legitimate” inasmuch

as the wrongful conduct that was inferred may have been

inadmissible under the applicable evidence rules. See Klebig,

600 F.3d at 721 (“the inference [should] be reasonable . . . to

prevent a party from presenting to the jury in closing argument a

fact that might have been ruled inadmissible at trial (or at

least subject to a limiting instruction).”). Because “the

prosecutor’s argument is likely to have significant persuasive

force with the jury,” the “scope of argument must be consistent

with the evidence and marked by the fairness that should

characterize all of the prosecutor’s conduct.” State v. Klinge,

92 Hawai#i 577, 592, 994 P.2d 509, 524 (2000) (brackets omitted)

(quoting State v. Rogan, 91 Hawai#i 405, 413, 984 P.2d 1231, 1239

(1999)).

In light of our determination that the case must be

remanded for a new trial, we need not decide whether the

prosecutor’s improper argument rose to the level of plain error.

VI.

It is well-established “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.”

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Clark, 83 Hawai#i at 304, 926 P.2d at 209 (citations omitted).

See State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986);

State v. Cordeiro, 99 Hawai#i 390, 424-25, 56 P.3d 692, 726-27

(2002); Tuua, 125 Hawai#i at 14, 250 P.3d at 277. But see State

v. Apilando, 79 Hawai#i 128, 142, 900 P.2d 135, 149 (1995)

(prosecutor’s comment that defendant “had the greatest motive to

lie” because he had the “highest stake in the outcome of the

case” was permissible attack on defendant’s credibility).

“The rationale for the rule is that ‘expressions of

personal opinion by the prosecutor are a form of unsworn,

unchecked testimony and tend to exploit the influence of the

prosecutor’s office and undermine the objective detachment that

should separate a lawyer from the cause being argued.’” Marsh,

68 Haw. at 660, 728 P.2d at 1302 (brackets omitted) (emphasis

added) (quoting ABA Standards, Commentary, at Standard 3.89).

The prosecutor in this case opened his closing argument

by stating that the only critical issue in the case was that of

witness credibility. The prosecutor continued, “On behalf of the

prosecution, I adamantly state to you, that [Bloom] and [Chavez]

have been completely credible witnesses, that they are worthy of

your belief.” Immediately after communicating this unqualified

endorsement of Bloom and Chavez, the prosecutor compared them to

Aliikea. The prosecutor argued that “[w]hen a defendant

testifies, his credibility is to be weighed as any other

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witness,” but “you need to keep . . . in mind” that Aliikea has

“no reason to tell you the truth.”

The prosecutor’s statement was undoubtedly an

expression of a personal view on the credibility of the State’s

witnesses and the guilt of the defendants.19 See Marsh, 68 Haw.

at 660-61, 728 P.2d at 1302 (prosecutor improperly expressed

personal opinion by stating, “I feel it is very clear and I hope

you are convinced, too, that the person who committed this crime

was none other than [defendant],” and referring to defense

witness’s alibi testimony by stating, “I sincerely doubt if she

[witness] had seen [defendant] there”); State v. Sanchez, 82

Hawai#i 517, 534, 923 P.2d 934, 951 (App. 1996) (prosecutor

improperly asserted “personal evaluation of the credibility of

certain witnesses in final argument” by using personal pronoun

“I”).

But more importantly, the implication of the

prosecutor’s argument, whether intended or not, was that Aliikea

had no reason to tell the truth because he was a defendant in the

case. At that point in the closing argument, the prosecutor had

not discussed any of the testimony that had been presented during

trial. The prosecutor also offered no reason, based on the

evidence, that Aliikea would have no reason to tell the truth,

other than Aliikea’s status as a defendant.

19
We do not agree with the Dissent that the prosecutor’s comment, “I
adamantly state to you,” is merely an introductory phrase or rhetorical
device. Dissent at 11.

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Defense counsel strongly objected to the prosecutor’s

statement, arguing in response that he took the prosecutor’s

comment to mean “you should not believe Aliikea because he’s a

defendant in the case.”20

A suggestion that defendants have no reason to tell the

truth impinges upon fundamental principles of our system of

justice, including the presumption of innocence, the burden of

proof upon the government, the right to testify without penalty,

and the right to a fair trial with an unbiased jury.

While defense counsel sought to neutralize the

prosecutor’s statement, the inherent limitations of such efforts

have been widely recognized. “The Supreme Court has observed

that a prosecuting attorney’s ‘improper suggestions,

insinuations, and especially, assertions of personal knowledge

are apt to carry much weight against the accused when they should

properly carry none.’” Marsh, 68 Haw. at 661, 728 P.2d at 1302

(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

In light of the “prestige associated with the

prosecutor’s office” and the “significant persuasive force” the

prosecutor’s argument is likely to have on the jury, this court

has repeatedly recognized that the prosecutor “has a duty to seek

justice, to exercise the highest good faith in the interest of

20
Although the propriety of the prosecutor’s statements was not
subsequently raised on appeal, due to the likelihood of retrial on remand, we
address this issue to prevent future error. State v. Gonzalez, 128 Hawai #i
314, 324, 288 P.3d 788, 798 (2012), State v. Apollonio, 130 Hawai #i 353, 359,
311 P.3d 676, 682 (2013).

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the public and to avoid even the appearance of unfair advantage

over the accused.”21 Rogan, 91 Hawai#i at 412-13, 984 P.2d at

1238-39.

While the prosecutor’s argument was specifically

directed at Aliikea, the statement clearly implicated Basham as

well. Aliikea testified that Basham did not hold Bloom down at

any time during the incident. This statement was also consistent

with Chavez’s first statement to Officer Barrett, which never

mentioned that anyone held Bloom to the ground. Because Basham

did not testify, his version of the events was essentially

presented through Aliikea’s testimony. Basham was entitled to

rely upon the fact, in deciding whether or not to testify, that

Aliikea’s testimony would not be attacked as untruthful based

upon the prosecutor’s generic argument.

This court has held that it is “improper, under article

I, section 14 of the Hawai#i Constitution, for the prosecution to

make generic accusations during closing argument that a defendant

tailored his testimony based solely on the defendant’s exercise

of his constitutional right to be present during the trial.”

State v. Mattson, 122 Hawai#i 312, 326, 226 P.3d 482, 496 (2010).

“[A] generic tailoring argument occurs when a prosecutor states

that the defendant was able to sit through the trial and hear the

21
See Hawai#i Rules of Professional Conduct Rule 3.8 cmt. 1 (“A
prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. This responsibility carries with it specific obligations to
see that the defendant is accorded procedural justice and that guilt is
decided upon the basis of sufficient evidence.” (Emphasis added)).

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testimony of other witnesses, thereby allowing the defendant the

opportunity to shape his or her testimony to fit that of other

witnesses, even when there is no evidence that defendant has

actually done so.” State v. Walsh, 125 Hawai#i 271, 282, 260

P.3d 350, 361 (2011) (quoting Mattson, 122 Hawai#i at 336, 226

P.3d at 506 (Acoba, J., dissenting, with whom Duffy, J.,

joined)).

In Walsh, the court held that generic tailoring

arguments are subject to plain error review because they infringe

on the defendant’s fundamental rights to confrontation, to a fair

trial, to testify on his or her own behalf, and to be present at

each criminal proceeding. 125 Hawai#i at 284-85, 260 P.3d at

363-64. The prosecutor in Walsh argued during closing argument

that the defendant “shaped his demeanor [during his testimony] to

appear truthful to the jury, based on statements made by

potential jurors regarding” the credibility of a witness who

maintained eye contact. Id. at 277-78, 291-92, 260 P.3d at 356-

57, 370-71. The court held that inasmuch as “[a] defendant’s

right to be present during voir dire is analogous to a

defendant’s right to be present during testimony of

witnesses, . . . a defendant’s mere presence during voir dire

cannot be used against the defendant to attack his credibility.”

Id. at 291, 260 P.3d at 370. The court explained, “It is . . .

manifest that the prosecutor’s comments regarding Respondent’s

manner of testifying transformed his presence at trial into an

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‘automatic burden on his credibility.’” Id. at 292, 260 P.3d at

371 (citation omitted).

The court held that although the prosecutor may attack

the defendant’s credibility based on specific evidence of

tailoring, the prosecutor’s inference in that case was not drawn

from the testimony but based solely on the defendant’s rightful

presence during a stage of the trial:

The prosecutor may permissibly cast doubt about the
substance of a defendant's testimony by referring to
specific evidence suggesting that the defendant engaged in
tailoring. However, the prosecutor cannot ask the jury to
infer the defendant’s lack of credibility from the manner in
which he presented his testimony, because that inference,
related only to the defendant's presence in the courtroom,
burdens the constitutional rights of defendants,
specifically the right to be present at trial. Here, the
inference that Respondent was not credible was not drawn
from testimony, but from his rightful presence during voir
dire.

Id. at 292, 260 P.3d at 371 (quotation marks, citations and

brackets omitted) (emphases added). The Walsh court’s holding

did not “hamstring the prosecution’s ability to comment directly

on the evidence presented,” as “the prosecution is free to refer

to the specific inconsistencies and contradictions in a

defendant’s testimony or with other evidence, without referring

to his [or her] presence at trial.” Id. at 295, 260 P.3d at 374.

In the same way that a prosecutor cannot ask the jury

to infer a defendant’s lack of credibility based on the

defendant’s rightful presence at trial, a prosecutor cannot ask

the jury to infer a defendant’s lack of credibility based solely

on the fact that he or she is a defendant. In this case, the

defendant was penalized for simply being the defendant; the

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prosecutor’s generalized statement inferred that defendants are

untrustworthy whenever they choose to testify because they have

“no reason to tell the truth.” The prosecutor effectively cast

doubt on the entirety of Aliikea’s testimony as well as on

Basham’s character by arguing that Bloom and Chavez were

trustworthy, with no reason to lie, while Aliikea, as a

defendant, had no reason to tell the truth.

Categorical comments informing the jury to treat the

defendant’s entire testimony as untruthful based on the

defendant’s status as a defendant undermines the function of the

jury as fact finder. As the Walsh court recognized, generic

arguments that the defendant has tailored his testimony or

testified untruthfully, divert the jury from deciding the case

based on the evidence. 125 Hawai#i at 297, 260 P.3d at 376.

This problem is exacerbated when such arguments are made during

closing argument, as the defense does not have any opportunity to

respond by presenting evidence:

Additionally, the statements diverted the jury from its duty
to decide the instant case on the evidence, by inviting the
jury to convict on the basis of conduct as consistent with
innocence as with guilt. Finally, the statements were also
made during closing argument, a crucial part of trial. The
prosecutor argued that [the defendant] was not credible due
to the exercise of his right to be present at trial, without
referencing any specific evidence, at a time when [the
defendant] could not respond with any evidence.

Id. (citing Mattson, 122 Hawai#i at 326, 226 P.3d at 496)

(quotation marks, citations, brackets and footnote omitted)

(emphases added).

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Generic arguments by the prosecutor that defendants, by

virtue of being defendants, have no reason to tell the truth or

have the greatest incentive to lie also transform a defendant’s

decision to testify at trial into an “automatic burden on . . .

credibility.” See Walsh, 125 Hawai#i at 292, 260 P.3d at 371.

“[A]lthough . . . the prosecution [is allowed] wide latitude when

making closing remarks, . . . a prosecutor’s comments may not

infringe on a defendant’s constitutional rights.” Mattson, 122

Hawai#i at 325, 226 P.3d at 495. Generic arguments that a

defendant is not a credible witness because of the defendant’s

status, like generic accusations of tailoring, “discourage a

defendant from exercising his [or her] constitutional right to

testify on his [or her] own behalf.” See Walsh, 125 Hawai#i at

284-85, 260 P.3d at 363-64 (quotation marks and footnote omitted)

(quoting Mattson, 122 Hawai#i at 326, 226 P.3d at 496).

“[C]losing argument affords the prosecution (as well as

the defense) the opportunity to persuade the jury that its theory

of the case is valid, based upon the evidence adduced and all

reasonable inferences that can be drawn therefrom.” Rogan, 91

Hawai#i at 413, 984 P.2d at 1239 (emphasis added) (citing State

v. Quitog, 85 Hawai#i 128, 145, 938 P.2d 559, 576 (1997)).

Permitting the prosecutor to make general arguments that the

State’s key witnesses should be considered credible because they

have “no reason to lie” while comparatively, the defendant should

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be assumed to be lying because he has “no reason to tell you the

truth,” is not an argument based on the evidence or a reasonable

inference drawn from the evidence.

“[T]his court has reiterated [the] view [that]: ‘The

prosecution has a duty to seek justice, to exercise the highest

good faith in the interest of the public and to avoid even the

appearance of unfair advantage over the accused.’” Maluia, 107

Hawai#i at 29, 108 P.3d at 983 (Acoba, J., concurring) (quoting

State v. Moriwaki, 71 Haw. 347, 354, 791 P.2d 392, 396 (1990)).

“[T]hat the prosecution must be held to a standard higher than

‘good faith’ is a proposition long established and fundamental to

the prosecution’s role in the criminal law system. . . . When

sight of this duty is lost, the level of prosecutorial advocacy

is depressed. And, the dispensation of justice in our state

suffers.” Id. at 28, 108 P.3d at 982 (citations omitted).

“[T]he high regard in which the prosecutor is held rests on his

or her position as the representative of the people.” Id.

Accordingly, the prosecutor’s “interest . . . in a

criminal prosecution is not that [the sovereign] shall win a

case, but that justice shall be done.” Id. (quoting Berger, 295

U.S. at 88) (quotation marks omitted). “It is as much [the

prosecutor’s] duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate

means to bring about a just one.” Id.

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Given the prosecutor’s important role in our justice

system and the danger that permitting generic accusations of a

defendant’s lack of credibility poses to the perceived fairness

of the adversarial process, we hold that it is improper for a

prosecutor in summation to make generic arguments regarding

credibility based solely upon the status of a defendant. Walsh,

125 Hawai#i at 285, 260 P.3d at 364 (“Because fundamental rights

are infringed when generic tailoring arguments are made, generic

tailoring arguments are subject to plain error review.”).

Accordingly, a prosecutor may not argue during closing argument

that defendants, because they are defendants, have no reason to

tell the truth or have the “greatest motive to lie.” Apilando,

79 Hawai#i at 142, 900 P.2d at 149.

VII.

Finally, Basham maintains that the evidence was

insufficient to prove that he was an accomplice to an assault in

any degree.

“‘In reviewing the legal sufficiency of the evidence on

appeal, the test is whether, viewing the evidence in the light

most favorable to the State, substantial evidence exists to

support the conclusion of the trier of fact.’” State v. Kaulia,

128 Hawai#i 479, 496, 291 P.3d 377, 394 (2013) (quoting State v.

Lubong, 77 Hawai#i 429, 432, 886 P.2d 766, 769 (App. 1994)

(ellipses omitted)). “‘Substantial evidence’ is evidence of

‘sufficient quality and probative value to enable a person of

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reasonable caution to reach a conclusion.’” Id. (quoting Lubong,

77 Hawai#i at 432, 886 P.2d at 769).

Viewed in the light most favorable to the State,

evidence was adduced that Basham pushed Bloom, causing Bloom to

fall to the ground, and Basham held Bloom on the ground before

Driver jumped onto Bloom. A person of reasonable caution could

have concluded based on this evidence that Basham had the

intention of promoting or facilitating Driver’s commission of

assault in the first degree (intentionally or knowingly causing

serious bodily injury to another person, HRS § 707-710(1)), and

aided, agreed, or attempted to aid Driver in planning or

committing the assault. See HRS § 702-222(1). Thus, substantial

evidence supported the jury’s conclusion in this case.

VIII.

Accordingly, Basham’s conviction is vacated based on

the circuit court’s failure to correct the prosecutor’s

misstatement of the law on accomplice liability. The case is

remanded for a new trial consistent with this opinion.

Summer M.M. Kupau /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

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