***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
19-JUN-2020
02:37 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Respondent/Plaintiff-Appellee,
vs.
CARI SALAVEA also known as CARI CARVEIRO,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 15-1-0608)
JUNE 19, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
Under article I, section 14 of the Hawai‘i Constitution
and the Sixth Amendment of the United States Constitution,
defendants in criminal cases are provided with the right to the
effective assistance of counsel at trial. The defendant in this
case contends that she was denied this right because her trial
counsel failed to adduce critical evidence impeaching the
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
credibility of the State’s key witness. Because we conclude
that the failure to adduce this evidence had no obvious tactical
benefit to the defendant’s case and that the adequacy of
counsel’s representation, when viewed as a whole, was not within
the range of competence required of attorneys in criminal cases,
we conclude that the defendant was denied the right to the
effective assistance of counsel. We also consider the
defendant’s contention that prosecutorial misconduct was
committed during closing argument to address the Intermediate
Court of Appeals’ interpretation of applicable precedent and
because consideration of this issue further evidences that the
assistance of defense counsel was ineffective.
I. BACKGROUND AND PROCEDURAL HISTORY
On April 17, 2015, Cari Salavea was charged by felony
information with burglary in the first degree, in violation of
Hawai‘i Revised Statutes (HRS) § 708-810(1)(c).1 The felony
1
HRS § 708-810(1)(c) (2014) provides as follows:
(1) A person commits the offense of burglary in the first
degree if the person intentionally enters or remains
unlawfully in a building, with intent to commit therein a
crime against a person or against property rights, and:
. . . .
(c) The person recklessly disregards a risk that the
building is the dwelling of another, and the building
is such a dwelling.
2
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
information alleged that on or about March 27, 2015, Salavea
unlawfully entered the residence of the complaining witness (CW)
with the intent to commit a crime therein, thereby violating HRS
§ 708-810(1)(c). Salavea entered a plea of not guilty, and a
jury trial was scheduled for the week of June 22, 2015.2
On June 22, 2015, Salavea filed a notice of intent to
use evidence (Salavea’s Notice) stating that she intended to
adduce evidence that the CW was in the process of using
methamphetamine in her residence at the time of the alleged
burglary. Salavea stated that the CW’s drug use undermined the
reliability of the CW’s perception and memory of the alleged
offense. On June 29, 2015, the State moved for a continuance,
citing the unavailability of a witness. The court granted the
motion over defense objection, and trial was rescheduled for the
week of September 8, 2015.
On August 13, 2015, Salavea’s counsel, the Office of
the Public Defender, moved to withdraw as counsel due to a
conflict of interest arising from its ongoing representation of
the CW in a separate matter. In a declaration attached to the
motion, counsel averred the ethical obligation to raise the CW’s
substance abuse as a relevant factor in Salavea’s case. Counsel
2
The Honorable Karen S. S. Ahn presided over pretrial proceedings,
the jury trial, and sentencing.
3
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
stated that continued representation of Salavea would compromise
the attorney-client relationship between the Office of the
Public Defender and the CW. The court granted the motion on
August 25, 2015, ordering the appointment of substitute counsel.
At a hearing on September 4, 2015, substitute counsel requested
a continuance so that counsel could prepare for trial. The
State did not object, and trial was rescheduled for the week of
November 16, 2015.
On November 13, 2015, the State filed a notice of
intent to use evidence of other acts (State’s Notice), asserting
that the State intended to present evidence of Salavea’s
admitted gambling problem, her drug use in 2014 and 2015, and
the circumstances of a prior theft conviction. The State
contended that this evidence was probative of Salavea’s motive,
opportunity, intent, and lack of mistake, as well as relevant
for impeachment purposes.
The State argued that Salavea’s gambling was relevant
because Salavea and the CW had gambled together in the past,
Salavea had asked the CW to lend her money at some time prior to
the alleged burglary, and the CW had refused to do so. The
State maintained that these facts demonstrated Salavea’s motive
to commit the burglary. Additionally, the State contended
Salavea’s prior drug use was relevant because the CW was
4
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
expected to testify that she had distanced herself from Salavea
because the CW felt she was at risk of relapsing while in
Salavea’s company based on Salavea’s drug use and their history
of using drugs together, which in turn upset Salavea and
provided a motive for the current offense.
The State also moved in limine to exclude, inter alia,
evidence of the CW’s history of drug use. If Salavea was
allowed to inquire about the CW’s history of drug use, the State
maintained, Salavea would be opening the door to the CW’s
explanation that she distanced herself from Salavea to avoid
relapsing. In response, Salavea filed a motion in limine
seeking preclusion of the evidence that was the subject of the
State’s Notice. Salavea maintained that her gambling and
history of drug use during 2014 and 2015 should not be admitted
because they were irrelevant.
The hearing on the parties’ motions in limine and
notices of intent was held on the day trial commenced. The
deputy prosecuting attorney (DPA) contended that evidence of
prior drug use by either the CW or Salavea was not relevant and
should be excluded at trial. The following was stated in regard
to the State’s motion in limine:
[DPA]: Judge, if I may elaborate, the reason I put it in
here, my position is actually pretty clear-cut. I think
any kind of prior drug use or being on [HOPE Probation] or
anything like that by either a Complainant or Defendant
should not be coming in. The only issue is whether--I
5
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
understand they’re making allegation whether Complainant
was using drugs at the time of the incident, and that’s a
separate issue. This is not what’s in this.
THE COURT: Okay. Use of drugs by anybody, whether it be
the Defendant or any witness, other witness, I think is
legitimate under the case law because it goes to your
ability to perceive and recall. It’s up to the jury to
decide whether there was an effect or not.
. . . .
THE COURT: And drug use on other occasions is irrelevant.
[DPA]: It’s irrelevant, yes.
[DEFENSE COUNSEL]: Yeah, but I mean, when [Salavea] saw–-I
mean, there were drugs at the scene and activity involving
those drugs, so–-
. . . .
[DEFENSE COUNSEL]: [I]t ties in with drug use at the
occasion, and it ties in beyond just, you know, was her
perception failing due to drug use.
THE COURT: Okay. That will not come up until your case.
[DEFENSE COUNSEL]: Right.
. . . .
THE COURT: It may have to do with the state of mind, right?
[DPA]: Right, memory, perception, state of mind, but not
any kind of other drug use or she’s known her as a person
who used drugs before or this is what she does all the
time. That’s what I’m objecting to because it’s not
relevant.
[DEFENSE COUNSEL]: No, and I agree with the State. I mean,
there’s certainly not going to be any attempt to expand
beyond what [Salavea] perceived the situation to be in that
room, not just, you know, how good [the CW]’s perception
was but in terms of were there drugs there, was that girl
getting into trouble with drugs, you know, that sort of
thing.
. . . .
THE COURT: In Cross, I would think we’re limited to the
event, the event at issue.
[DPA]: Exactly.
6
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
[DEFENSE COUNSEL]: Well, based upon what she says--
[DPA]: She cannot--“Were you using the drugs on March
27th?” and the answer is going to be no, and they have to
live with that.
THE COURT: Yeah, until something else comes up, and that
would be in the Defense’s case.
[DPA]: Defense’s side, and when Defense’s side comes up,
they can rebut the testimony with the perception of what
happened in the room, if she had blurry eyes or slurred
speech or if she was acting funny, whatever, but they
cannot go into past drug use, history of drug use, or any
kind of “I know she was using drugs even though she looked
normal because she always uses drugs,” you know, so I want
to make sure that the rebuttal is also limited to
perception of what happened in this room.
. . . .
I’d also like to point out . . . there’s a portion of why I
filed Notice of Intent. If it does come out and it’s
pretty much irreparable and the jury here hears Defendant’s
testimony about any kind of allegations of prior drug use
or whatever that goes beyond the scope of that event, State
should be allowed to question Defendant and bring it up
that they were doing it together over that period of time.
THE COURT: Oh, yeah, it’s fair Cross. Both of you have a
right to fair Cross, and credibility is always, obviously,
an issue in addition to what happened that night or that
day.
[DPA]: I’m sorry. Not just that day, but if the history of
drug use--
THE COURT: I understand what you’re saying. No, you have
the right to fair Cross, and [Defense Counsel] has a right
to fair Cross.
[DPA]: And this goes to her state of mind.
THE COURT: Okay, I think we’ve talked about No. 1. I think
we understand where we are.
(Emphases added.)
After ruling on the State’s remaining motions in
limine, the court considered Salavea’s motion to exclude the
evidence that was the subject of the State’s Notice. The
7
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
following exchange took place with regard to Salavea’s history
of drug use in 2014 and 2015:
THE COURT: Okay. Defendant’s drug use in 2014 and 2015, is
that something you still want at this point?
[DPA]: Well, yes. If they open the door through bringing
up the whole history and everything else[.]
(Emphasis added.)
The court then considered Salavea’s Notice. The court
stated that “[Salavea]’s Notice of Intent will be granted,
assuming the evidence is that [the CW] . . . was using ice at
about 1:30, and that’s when this incident occurred, and I’m
hearing that from the lawyers. I guess that comes in to show
perception and recall.”3
At trial, the CW testified that she was living with
her parents and her six-year-old daughter in a secured apartment
building at the time of the incident. An electronic fob was
needed in order to access the building. She had lost her
original fob in June 2014 but did not know where she lost it.
According to the CW, she reported her fob as lost and had it
replaced but did not deactivate the misplaced fob because she
thought she might find it at some point.
3
Crystal methamphetamine is “commonly known as ice” in Hawai‘i.
H. Stand. Comm. Rep. No. 495–04, in 2004 House Journal, at 1603.
8
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The CW also testified that she and Salavea had been
close friends and had known each other for six years. The CW
was godmother to one of Salavea’s children and had been the maid
of honor at her wedding. She and Salavea would meet every once
in a while and do family activities together such as taking
their kids to the pool. They were very close but did not always
spend time together, and she had started spending less time with
Salavea at the beginning of 2015. The CW acknowledged that she
let Salavea borrow possessions from her in the past, but she
stated that Salavea borrowed more from her than she did from
Salavea. Prior to March 27, 2015, the last time she had seen
Salavea was earlier that month on March 6, when they went
gambling together, and they had been out all night.
The CW testified that on the afternoon of March 27,
she was at home recovering from a workplace injury to her foot.
The CW stated that she was at her residence that day with her
parents until they left sometime between 1:15 and 1:30 p.m. She
received a call from Salavea around that time but did not answer
the phone. She then fell asleep for a while; when she woke up,
her phone was missing as were some other possessions, including
a tablet and a backpack containing her wallet. The CW called
her mother on the landline to see if she had seen her phone, but
9
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
her mother said she had not.4 She went downstairs to building
security and reviewed surveillance footage of the elevators
going up to her floor. The footage showed Salavea entering the
building and making her way to the floor on which the CW
resided. It then showed Salavea reentering the elevator and
exiting the building carrying the missing backpack. The CW
testified that she had not given Salavea permission to enter her
home or to take her backpack.
Ray Pavao, a security guard at the CW’s apartment
complex, testified that around 7:00 p.m. on March 27, 2015, the
CW reported that someone had possibly come into her unit and
taken some of her belongings. He and the CW reviewed the
security footage together. Michael Bryant, a security
supervisor at the CW’s apartment complex testified that he
reviewed the record of fob usage between March 1 and March 31,
2015 on the apartment computer system, and one fob registered to
the CW was used only three times, all on the afternoon of March
27, 2015. Additionally, Bryant stated that the record of fob
purchases by residents showed that the CW had purchased another
4
The CW’s mother corroborated this statement in her testimony.
The CW’s mother also testified that when she returned to the apartment the CW
was “speak[ing] okay.”
10
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
fob on June 27, 2014, but there was no record that a fob
assigned to the CW was deactivated.
Salavea testified that she went to the CW’s residence
on the afternoon of March 27, 2015, because she was returning
the CW’s house key to her, which she said the CW had left in
Salavea’s car earlier that month on March 6. Salavea stated
that she called the CW around noon on March 27 to tell her that
she was in town and was going to stop by to drop off the CW’s
house key. The CW told her to park in the CW’s designated
parking stall and come upstairs. Salavea testified that she
then went to the CW’s apartment where she met and spoke with the
CW. After speaking with the CW, she borrowed a pair of slippers
and a backpack from her and left the apartment. Salavea
identified the backpack that she borrowed as the same backpack
shown in the surveillance footage. The following exchange then
took place:
[DEFENSE COUNSEL]: Did anything else occur between the two
of you while you were there?
SALAVEA: Can you--what do you mean?
[DEFENSE COUNSEL]: Let me ask you this. How long did you
stay there?
SALAVEA: Not long ‘cause my friend was in the car waiting.
[DEFENSE COUNSEL]: So did anything else occur before you
left? You borrowed her sneakers, her backpack.
SALAVEA: Well, she told me not to take her bag ‘cause she
was going to use it, so I told her that I wanted to use it
11
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
and she can come to my house and get it when she’s not out
of it.
[DEFENSE COUNSEL]: And did she seem alert on that occasion
when you said “when she’s not out of it”?
[DPA]: Objection, Your Honor.
[DEFENSE COUNSEL]: I’ll rephrase.
[DPA]: And I’m also objecting to the last answer.
THE COURT: To the last answer? There was no answer.
[DPA]: The basis is hearsay.
THE COURT: Oh, to the last answer. All right. Well, it is
hearsay. I’ll strike that last answer by the witness, and
the jury will disregard it.
[DEFENSE COUNSEL]: I’m sorry. The portion that her friend
said to her?
THE COURT: This thing about “she didn’t want me to use it.”
[DPA]: No, the last portion, the last portion of the
answer, what Defendant is saying she told her. It’s
basically self-serving hearsay that is adduced by
Defendant--
THE COURT: And I’m striking it as hearsay, the whole
answer.
[DPA]: No, only starting with “I told her,” so when she was
not given permission to use the bag, I’m not asking to
strike that.
THE COURT: “She told me,” everything after that in the last
answer is stricken. Jury will disregard it.
[DEFENSE COUNSEL]: Very well. So on that occasion, did you
leave with her backpack?
SALAVEA: Yes.
[DEFENSE COUNSEL]: And you left with her footwear?
SALAVEA: Her slippers.
[DEFENSE COUNSEL]: Where did you go from there?
SALAVEA: We went to Popeye’s so my friend could use the
bathroom and grab something to eat, and then we went back
to the west side, my house.
12
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Defense counsel did not attempt to rephrase the question that
drew the State’s hearsay objection. At no point did defense
counsel inquire, nor did Salavea testify, about whether the CW
was using or under the influence of methamphetamine while
Salavea was there.
Salavea also testified that she had borrowed backpacks
and shoes from the CW in the past. On cross-examination, the
DPA questioned Salavea about her intent to return the bag to the
CW. Salavea explained that she had asked her husband to return
the bag, but he had been unable to contact the CW.5 The
prosecutor then questioned Salavea about her statement that the
CW had told her not to borrow the bag because the CW wanted to
use it. Specifically, the prosecutor asked if Salavea thought
it was “okay” for her to borrow the bag, even though the CW told
her not to take it, because she had borrowed items from the CW
previously without express permission. Salavea responded that
the CW “was there” but acknowledged that it was not okay to take
the bag without express permission. After this acknowledgement,
the DPA asked Salavea, “So it wasn’t okay to take it?” and
Salavea responded, “No, it wasn’t.” The DPA then stated, “So it
was a theft?” and Salavea said, “Yeah.”
5
Salavea also testified that she had been unable to return the
CW’s backpack herself because she was incarcerated, but she had told the
police where the CW’s backpack was located after she was arrested.
13
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
At the conclusion of the evidence, the court
instructed the jury on the elements of burglary in the first
degree and the included offenses of criminal trespass in the
first degree and theft in the fourth degree.
During closing arguments, the DPA made the following
statements:
[DPA]: The Defendant in this case, Cari Salavea, is guilty
of Burglary in the First Degree, not just of Trespass or
Theft but of Burglary in the First Degree, and the reason
why is because she entered unlawfully into [the CW’s] house
with intent to commit a crime, with intent to steal. [The
CW] told you the truth. [The CW]’s testimony was credible.
THE COURT: Well, the State submits.
[DPA]: Thank you. The State submits that [the CW]’s
testimony is credible because it is corroborated by other
evidence, because it makes sense, and because you, as the
judges of everybody’s demeanor and looking at those factors
that are given to you in the jury instructions, can assess
for yourself whether it makes sense or not.
. . . .
Defendant’s story that she had permission to go in and she
had somehow thought it was okay and that [the CW]
cooperated with her and [the CW] let her do all of that is
not credible. It’s not credible, it’s a lie, because it
doesn’t make any sense.
[W]hat you need to focus on and this is how the State
submits to you that it’s proven that Defendant’s story
doesn’t add up--is the whole story by Defendant that the
fob was lost by [the CW] on March 6th does not hold, does
not hold up. That’s a lie, and from there, it follows that
she was concealing the fob, she was deliberately holding on
to that fob secretly so she could go in her own time at her
own convenience and take from [the CW].
[The CW] told you and she was very frank with you, she
explained in details what happened to her fob. She told
you she lost that fob as far as almost a year prior to this
incident in March, and that testimony was corroborated by
Ray Pavao. That testimony was corroborated by the records
that she got an additional fob, she got the second fob.
14
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
. . . .
What does that mean? That shows you that [the CW] told you
the truth. She told you she lost the fob and she got one
on June 27th. The records show that she got her
replacement fob on June 27th. That directly contradicts
Defendant’s story that [the CW] lost it in the car, and
from there, everything crumbles, everything the Defendant
tells you is not true.
. . . .
So, ladies and gentlemen, for these reasons, State submits
to you that Defendant is guilty as charged of Burglary in
the First Degree, not just of Trespass or Theft. It’s a
Burglary in the First Degree because Defendant, by lying
about how the fob situation went up, she concealed that
fob, she went there specifically with an intent to commit
the crime because she have both motive and opportunity.
(Emphases added.)
During the defense’s closing argument, defense counsel
made the following statements:
[DEFENSE COUNSEL]: If I may leave you with a suggestion of
evaluating the evidence in this case, it would be this.
You recall that just before our lunch break, [Salavea] went
on the witness stand, and the Deputy Prosecutor asked her
whether she didn’t take the Roxy bag without permission and
whether that wasn’t indeed theft, and [Salavea] broke down,
she was in tears, and that’s, I suggest-–
[DPA]: Objection, Your Honor. This is not in evidence, and
it’s personal statement.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And that’s because it probably didn’t
even occur to her that that playful little act might be
viewed by the law as a theft. Now, the Government would
have you believe that [Salavea], being that type of person,
would take all of her friend’s valuables, and it’s just not
borne out by the evidence. Something occurred between
these two women, but it wasn’t a burglary.
Then, during rebuttal, the State made the following
statements:
[DPA]: Ladies and gentlemen, what Defense Counsel was just
doing was trying to appeal to your sense of pity or some
15
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
kind of sense, you know, for Defendant, and that’s
improper. You are given an instruction that you should not
be influenced by that.
. . . .
Now, if you look at who is more likely to cook up a story,
that was a good suggestion, and State submits to you that
one of the guiding, multiple guiding factors are on page 8
of your jury instructions where Judge Ahn did read to you
the multiple factors that you may consider in determining
whether a person is telling the truth or not.
One of them is the witness’ manner of testifying. That is
significant. You saw how [the CW] testified. I don’t know
if calling her sophisticated is kind of an overstatement.
That’s your judgment entirely. She may not have looked as
sophisticated as [Defense Counsel] is claiming, but she was
very forthright, she was very forthright about how she
felt.
And she also told you frankly that they were close friends.
She was disappointed with how their relationship went, but
she also did express no bias or no reason or no negativity
towards Defendant even though I asked her hard questions.
I was kind of asking her, you know, like, how did you feel,
what was your, you know, what was your feeling towards
relapsing, gambling every time you met with Defendant. She
was very, she was very mild as far as when--
THE COURT: The State submits. The State submits.
[DPA]: State submits her testimony was not in any way
showing any animosity. If anything, she felt betrayed and
disappointed. She had nothing against Cari. Even after
this incident, she did not--she has no claim that there was
some kind of reason for her to feel specific animosity
towards her friend. She was also very frank and forthright
how she described what happened to her when she discovered
things were missing. She told you in details how she was
trying to call her phone, and it went to ringing first,
then voicemail.
. . . .
But why would she go to Ray and look at that video to try
to figure it out if in fact it happened the way Cari says
it happened? Cari Salavea is not a truthful witness.
Another factor is interest, if any, in the result of this
case. Of course, every Defendant has a lot of interest in
the result of the case, and that’s natural, but you cannot
disregard it. It’s still there. There is interest and
bias. Defendant has a lot of interest what’s at stake,
while [the CW], why would [the CW] go through all of this
16
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
and why would [the CW] go and make up a story if it was not
what happened? There was no evidence by Defendant why is
it that [the CW] would do it, and there was no evidence
from [the CW], even though we pushed her, both of us, that
she had any reason to tell this story. She told you the
truth.
THE COURT: Well, the State submits.
[DPA]: State submits she told you the truth.
THE COURT: Strike that “She told you the truth.” What is
your argument? Jury will disregard that part of the
argument.
[DPA]: Okay.
(Emphases added.)
The jury found Salavea guilty of burglary in the first
degree. On April 19, 2016, the circuit court sentenced Salavea
to ten years of imprisonment, with a mandatory minimum term of
four years and six months (amended judgment). Salavea timely
appealed from the amended judgment to the Intermediate Court of
Appeals (ICA).6
On appeal, Salavea contended that her conviction
should be vacated or reversed because (1) defense counsel was
ineffective for failing to adduce the evidence of the CW’s drug
use at the time of the incident; (2) the DPA committed
prosecutorial misconduct during closing argument; and (3) the
State’s evidence was insufficient to support her conviction. In
regard to her second point of error, Salavea argued that the DPA
6
Salavea’s counsel on appeal was not counsel at trial.
17
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
committed misconduct by offering a personal opinion about
Salavea’s credibility and the credibility of the State’s
witnesses, personally attacking defense counsel and accusing
counsel of misconduct, and implying that Salavea was obligated
to adduce evidence undermining the CW’s credibility, thereby
improperly shifting the burden of proof to the defense.
II. ICA PROCEEDINGS
The ICA first considered Salavea’s contention that the
assistance of counsel at trial was ineffective.7 The ICA found
that defense counsel’s failure to adduce evidence of the CW’s
use of methamphetamine at the time of the alleged crime was a
deliberate tactical decision. Citing the motions in limine
hearing, the ICA determined that any allegations about the CW’s
prior drug use would have opened the door to evidence about
Salavea’s history of drug use. On this basis, the ICA concluded
defense counsel chose not to adduce the evidence of the CW’s
drug use at the time of the incident in order to avoid the
introduction of evidence of Salavea’s history of drug use.
The ICA then considered Salavea’s contention that
several statements made by the DPA during closing argument
7
The ICA’s memorandum opinion can be found at State v. Salavea,
No. CAAP-XX-XXXXXXX, 2019 WL 763475 (App. Feb. 4, 2019) (mem.).
18
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
constituted prosecutorial misconduct.8 Although the DPA had
characterized the CW’s testimony as the truth and Salavea’s
testimony as a lie, the ICA observed that the DPA described in
detail how the evidence adduced at trial made the CW’s testimony
more credible than that of Salavea. In addition, the ICA stated
that the “Circuit Court gave numerous prompt curative
instructions (‘the State submits’), struck the DPA’s statement
that ‘She told you the truth’ and instructed the jury to
‘disregard that part of the argument.’” The ICA also noted that
the jury instructions informed the jury that the lawyers’
statements or arguments were not evidence. Finally, the ICA
concluded that the use of the word “lie” by the DPA during
closing argument was not misconduct at the time of trial, as
State v. Austin, 143 Hawai‘i 18, 422 P.3d 18 (2018), was decided
after the trial in this case and had created a new rule, and
therefore it should be given only prospective application.9
Second, the ICA reviewed Salavea’s contention that the
DPA improperly shifted the burden of proof by arguing there “was
8
Although Salavea’s counsel failed to object to the DPA’s
statements at trial, the ICA reviewed the allegations of prosecutorial
misconduct under the plain error doctrine.
9
In Austin, this court held that prosecutors were prohibited from
using the word “lie” or its derivatives when discussing the credibility of a
defendant or witness’s testimony during closing argument. Austin, 143 Hawai‘i
at 56, 422 P.3d at 56.
19
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
no evidence by Defendant why is it that [the CW] would [tell
this story].” The ICA concluded that the DPA had not improperly
shifted the burden of proof but merely argued that the CW’s
credibility had not been impeached by any evidence of bias or
motive for untruthfulness. Further, the ICA stated, the jury
instructions informed the jury that Salavea had no duty or
obligation to call any witnesses or produce any evidence.
Third, the ICA considered whether it was improper for
the DPA to argue that Salavea had lied simply because she was
the defendant in a criminal case. The ICA acknowledged that
this court, in State v. Basham, had found that it is improper
for a prosecutor in summation to make generic arguments
regarding credibility based solely upon the status of a
defendant. (Citing State v. Basham, 132 Hawai‘i 97, 319 P.3d 1105
(2014)). The ICA found that the DPA in this case did not
violate the holding in Basham because the DPA “did not make a
generic tailoring argument” and the comments were harmless
beyond a reasonable doubt because the DPA also described how the
evidence adduced at trial made the CW’s testimony more credible
than that of Salavea.
Lastly, the ICA addressed Salavea’s contention that
the DPA committed misconduct by accusing defense counsel of
improperly influencing the jury during closing argument. The
20
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
ICA concluded that the DPA was merely reminding the jury about
the court’s instruction that it should not allow pity for the
defendant or prejudice against the defendant to influence its
determination in response to what could reasonably have been
interpreted as defense counsel’s attempt to have the jury take
pity on Salavea. Thus, the ICA held that the DPA’s comments
about defense counsel’s conduct were proper.10
The ICA accordingly affirmed the circuit court’s
judgment.
III. STANDARDS OF REVIEW
A. Ineffective Assistance of Counsel
When a defendant first raises the issue of ineffective
assistance of counsel on direct appeal, the appellate court may
consider the merits of the appeal de novo if the record is
“sufficiently developed to determine whether there has been
ineffective assistance of counsel[.]” State v. Silva, 75 Haw.
419, 439, 864 P.2d 583, 592 (1993).
B. Prosecutorial Misconduct
A defendant’s contention on direct appeal that
prosecutorial misconduct resulted in the denial of the
defendant’s right to a fair trial is a question of
10
The ICA also considered and rejected Salavea’s contention that
the evidence adduced at trial was insufficient to support her conviction.
21
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
constitutional law, which we review de novo. State v.
Underwood, 142 Hawai‘i 317, 325, 418 P.3d 658, 666 (2018).
C. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the
evidence, evidence adduced in the trial court must be considered
in the strongest light for the prosecution. State v. Kalaola,
124 Hawai‘i 43, 49, 237 P.3d 1109, 1115 (2010). “The test on
appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the
conclusion of the trier of fact.” Id. (quoting State v. Richie,
88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1997)).
IV. DISCUSSION
A. The Assistance of Salavea’s Trial Counsel Was Ineffective.
Article I, section 14 of the Hawai‘i Constitution and
the Sixth Amendment to the United States Constitution provide
defendants in a criminal proceeding with the right to the
effective assistance of counsel at every critical stage of the
prosecution. State v. Pitts, 131 Hawai‘i 537, 541, 319 P.3d 456,
460 (2014). Violation of an accused’s constitutional right to
effective assistance of counsel warrants the irrebuttable
presumption of prejudice. State v. Antone, 62 Haw. 346, 349,
615 P.2d 101, 105 (1980). A conviction will be vacated,
therefore, if the defendant was denied effective assistance of
22
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
counsel at trial. State v. Aplaca, 74 Haw. 54, 73, 837 P.2d
1298, 1308 (1992).
The standard for determining the adequacy of counsel’s
representation is whether, when viewed as a whole, the
assistance provided is “within the range of competence demanded
of attorneys in criminal cases.” State v. Cordeiro, 99 Hawai‘i
390, 405, 56 P.3d 692, 707 (2002). First, a defendant must show
that there were specific errors or omissions reflecting
counsel’s lack of skill, judgment, or diligence. Antone, 62
Haw. at 348, 615 P.2d at 104. Second, the defendant must
establish that these errors or omissions resulted in either the
withdrawal or substantial impairment of a potentially
meritorious defense. Id. at 348-49, 615 P.2d at 104; State v.
DeLeon, 131 Hawai‘i 463, 478-79, 319 P.3d 382, 397-98 (2014).
The second prong of this test is satisfied if the
defendant shows a possible impairment of a potentially
meritorious defense. DeLeon, 131 Hawai‘i at 479, 319 P.3d at
398. The defendant does not need to show the impairment was
probable nor prove that the defendant suffered actual prejudice.
Id.; Briones v. State, 74 Haw. 442, 465, 848 P.2d 966, 977
(1993). Specific actions or omissions that are alleged to be
erroneous but that had an obvious tactical basis for benefitting
the defendant’s case will not be subject to further scrutiny.
23
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
State v. Pacheco, 96 Hawai‘i 83, 93, 26 P.3d 572, 582 (2001).11
If, however, the alleged error or omission had no obvious basis
for benefitting the case and resulted in the withdrawal or
impairment of a potentially meritorious defense, then the
assistance of defendant’s counsel was constitutionally
inadequate. State v. Smith, 68 Haw. 304, 309-11, 712 P.2d 496,
500-01 (1986).
Salavea alleges that the assistance of her appointed
trial counsel was ineffective because counsel failed to adduce
evidence of the CW’s drug use at the time of the alleged crime.
Before trial, Salavea’s counsel had filed a notice of intent
stating that the defense would adduce evidence at trial that the
CW was in the process of using methamphetamine at the time of
the alleged offense. Salavea’s Notice indicated that the CW’s
drug use was relevant because it undermined the reliability of
her perception and memory of the event. Additionally, at the
pretrial hearing held on the day trial commenced, defense
counsel indicated an intention to adduce evidence of the CW’s
drug use at the time of the incident.
11
It is noted, however, that where “trial counsel makes a critical
tactical decision which would not be made by diligent, ordinarily prudent
lawyers in criminal cases, the right to effective assistance of counsel may
be denied.” Antone, 62 Haw. at 352, 615 P.2d at 106.
24
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
At trial, during her direct examination, Salavea
testified to her account of what transpired at the CW’s
residence on the day of the incident. As she finished
explaining what occurred in the CW’s apartment, defense counsel
asked Salavea whether “anything else occurr[ed] before you
left?” Salavea responded that “she told me not to take her bag
‘cause she was going to use it, so I told her that I wanted to
use it and she can come to my house and get it when she’s not
out of it.” (Emphasis added.) Defense counsel then asked
Salavea “did she seem alert on that occasion when you said ‘when
she’s not out of it?’”
This question drew an objection from the DPA, who
stated the objection was based on hearsay and was directed to
both the question and Salavea’s last answer. The court
sustained the State’s objection and struck everything after “she
told me” in Salavea’s previous answer.12 Defense counsel did not
repeat the question about whether the CW seemed alert on that
occasion or ask Salavea to explain what she meant by “when she’s
not out of it,” nor did counsel make any other attempts to
12
The full stricken statement was as follows: “Well, she told me
not to take her bag ‘cause she was going to use it, so I told her that I
wanted to use it and she can come to my house and get it when she’s not out
of it.”
25
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
elicit evidence that the CW was using or under the influence of
methamphetamine at the time of the incident.
It is clear that defense counsel was pursuing
elicitation of the CW’s use of methamphetamine during the
incident but appears to have been confounded by the State’s
hearsay objection. Defense counsel did not then rephrase the
question in a way that would not elicit hearsay and entirely
dropped this line of inquiry. The evidence of the CW’s use of
methamphetamine at the time of the incident, however, clearly
could have been elicited without the use of hearsay by simply
asking Salavea to state what she saw in the immediate area of
the CW, to describe the CW’s appearance and physical actions,
and to recount whether the CW was able to converse or think
coherently. None of these questions were asked. The ability to
ask basic questions of this nature is obviously “within the
range of competence demanded of attorneys in criminal cases.”13
Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707.
13
We also note that although the court sustained the DPA’s
objection on the basis of hearsay, the statements made by the CW and Salavea
regarding the taking of the bag were not hearsay because they had independent
legal significance. State v. Villena, 140 Hawai‘i 370, 378, 400 P.3d 571, 579
(2017) (“It is well-settled that statements of independent legal significance
are not hearsay.”). The statements were directly relevant to whether Salavea
believed that she had permission to take the bag, and therefore they had
legal significance independent from the truth of the matter asserted. See
Island Directory Co. v. Iva’s Kinimaka Enters., Inc., 10 Haw. App. 15, 21-22,
859 P.2d 935, 939 (1993) (holding that statements that constitute the offer,
acceptance, or terms of a contract are not hearsay because the making of such
(continued. . .)
26
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In its review of Salavea’s contention that her counsel
provided ineffective assistance, the ICA concluded that defense
counsel made a strategic decision not to inquire about the CW’s
drug use at the time of the incident to avoid opening the door
to evidence of Salavea’s past drug use. The dissent similarly
concludes that evidence of the CW’s drug use at the time of the
incident would have opened the door to Salavea’s history of drug
use. Dissent at 26. The “opening the door” doctrine, which has
never been adopted in this jurisdiction, provides that when one
party introduces inadmissible evidence, the opposing party may
respond by introducing inadmissible evidence on the same issue.
State v. Lavoie, 145 Hawai‘i 409, 422-24, 453 P.3d 229, 242-44
(2019). Here, the circuit court had ruled that evidence of drug
use at the time of the incident, by either party, was
admissible. Thus, evidence of drug use at the time of the
incident could not have opened the door to evidence of either
party’s history of drug use.14 See State v. Fukusaku, 85 Hawai‘i
(. . .continued)
statements are in themselves relevant). Counsel’s failure to appropriately
respond to the DPA’s objection regarding this critical verbal exchange
between the CW and Salavea further demonstrates that the legal assistance
provided by defense counsel was not within the range of competence required
of attorneys in criminal cases.
14
Because evidence of drug use at the time of the incident was
admissible, like the evidence discussed in Lavoie and Fukusaku, the “opening
the door” doctrine was never applicable to this case. Accordingly, for the
(continued. . .)
27
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
462, 497, 946 P.2d 32, 67 (1997) (“[E]ven if we were to adopt
the doctrine of curative admissibility, it would not be
applicable to the present case.”). As the State maintained at
the pretrial hearing, “whether [the CW] was using drugs at the
time of the incident [is] a separate issue” from the CW’s and
Salavea’s past drug use.15
The dissent also theorizes that counsel made a
tactical decision to terminate the inquiry into the CW’s drug
use at the time of the incident because counsel determined that
the evidence had “negligible value” and was “not worth the
risk.” Dissent at 27. This is refuted by Salavea’s Notice,
defense counsel’s representation on the day of trial that
counsel would adduce the evidence of drug use at the time of the
incident, counsel’s actual attempt to adduce the evidence that
drew the State’s hearsay objection, and the universal
recognition of the importance of such evidence. See Addison M.
(. . .continued)
same reasons stated in Lavoie, this case does not require us to consider
whether the doctrine should be adopted in this jurisdiction. Lavoie, 145
Hawai‘i at 424 n. 29, 453 P.3d at 244 n.29.
15
The dissent describes the State’s Notice as being a response to
Salavea’s Notice, implying the notices were filed contemporaneously. Dissent
at 25 (“When Salavea noticed her intention . . . the State filed a
Notice[.]”). Salavea’s Notice was filed on June 22, 2015, and the State’s
Notice was filed over four months later on November 13, 2015. Indeed, the
DPA stated that the issue of drug use at the time of the incident was “a
separate issue” from the evidence identified in the State’s Notice and
represented to the court that drug use at the time of the incident was not
the subject of the State’s Notice.
28
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Bowman, Hawaii Rules of Evidence Manual § 611-2[4][B], at 6-75
(2018-2019 ed.) (“Ability to perceive and remember a relevant
event are the ingredients of a witness’ personal knowledge,
which is the basic condition of testimonial competency.”).
Indeed, Salavea’s prior counsel, the Office of the Public
Defender, considered the CW’s substance abuse so significant to
Salavea’s defense that counsel’s declaration to the court stated
that counsel was ethically obligated to raise the evidence
during the trial. This ethical obligation required the public
defender’s office to withdraw as Salavea’s counsel because of
its ongoing representation of the CW in another matter.
Moreover, Salavea was entitled to cross-examine the CW
as to her use of drugs at or near the time of the incident to
the extent that it affected her ability to accurately perceive
or recall what had occurred. State v. Calara, 132 Hawai‘i 391,
402, 322 P.3d 931, 942 (2014) (“[A] defendant is entitled to
cross-examine a witness concerning the witness’s drug use and
addiction at or near the time of the incident to the extent that
it affected [the witness’s] perception or recollection of the
alleged event[.]” (second alteration in original) (internal
quotation marks omitted)); State v. Sabog, 108 Hawai‘i 102, 111,
117 P.3d 834, 843 (App. 2005) (“For purposes of discrediting a
witness, drug-use evidence is admissible to the extent it shows
29
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the witness was under the influence of drugs at the time of the
occurrence as to which the witness testifies[.]” (quoting State
v. Osby, 793 P.2d 243, 247 (Kan. 1990))).
The dissent further argues that defense counsel made a
tactical decision to terminate the inquiry because counsel was
unable to complete it without eliciting testimony about prior
drug use. Dissent at 27-28. This inability is precisely what
illustrates the ineffectiveness of Salavea’s trial counsel. As
with the elicited “hearsay,” counsel could have asked simple
questions about what Salavea observed in the CW’s immediate
area, the CW’s appearance and physical actions, and whether the
CW was able to converse or think coherently. Such testimony
would not have opened the door to Salavea’s prior drug use. It
is self-evident that the ability to ask basic questions of this
nature is “within the range of competence demanded of attorneys
in criminal cases.” Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707.
Thus, contrary to the conclusions of the ICA and the dissent,
counsel’s failure to adduce the evidence of drug use was not a
strategic decision because it did not have any tactical basis
for benefitting Salavea’s case.16 Smith, 68 Haw. at 309-11, 712
16
The dissent makes the strained and incongruous contention that
defense counsel’s failure to adduce evidence of drug use at the time of the
incident in fact benefitted Salavea’s defense because Salavea’s testimony
would have been “in complete contradiction to the testimony of several
(continued. . .)
30
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
P.2d at 500-01 (concluding that defense counsel’s questioning
did not have an obvious basis for benefitting the defendant’s
case).
In order for the assistance of counsel to be
constitutionally inadequate, the omission or error must result
in the substantial impairment or withdrawal of a potentially
meritorious defense. Aplaca, 74 Haw. at 67, 837 P.2d at 1305.
In Aplaca, we considered whether defense counsel’s failure to
investigate potential witnesses was an omission that reflected
counsel’s lack of skill, judgment, or diligence and whether the
omission substantially impaired a potentially meritorious
defense. Id. at 66-68, 837 P.2d at 1305-06. In concluding that
counsel’s omission did have this result, we highlighted the fact
that the outcome of the case depended on the credibility of the
defendant and the complaining witness. Id. at 72, 837 P.2d at
(. . .continued)
witnesses.” Dissent at 26. The dissent points to the CW’s mother’s
statement that the CW was “speak[ing] okay” when she returned to the
apartment and Pavao’s statement that the CW “looked normal” when the CW
reported the incident around 7:00 p.m. that evening. Dissent at 26-27.
Apparently, according to the dissent, a single statement that someone is
“speaking okay” refutes methamphetamine use or being under its influence
during the incident, as does Pavao’s observation that the CW “looked normal”
several hours later. The dissent’s pure speculation provides no basis to
conclude that defense counsel’s failure to adduce this evidence provided any
tactical benefit to the defense, let alone a benefit that is so obvious that
it precludes our review of this alleged error, which is what our law
requires. Briones, 74 Haw. at 462-63, 848 P.2d at 976 (“[A]ctions or
omissions alleged to be error but which had an obvious tactical basis for
benefitting the defendant’s case will not be subject to further scrutiny.”
(emphasis added and omitted)).
31
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
1308. We noted that “if trial counsel had reviewed the
subpoenaed materials and interviewed witnesses . . . he could
have produced testimony that would have indicated that [the
complaining witness] was not a truthful person.” Id. at 73, 837
P.2d at 1308. Although the exact effect of the prospective
witnesses on the trial court’s assessment of the complaining
witness and the defendant’s credibility could not be predicted,
this court stated in its decision that “we firmly believe that
such testimony could have had a direct bearing on the ultimate
outcome of the case.” Id. The Aplaca court thus concluded that
trial counsel’s error resulted in the substantial impairment of
a potentially meritorious defense and the denial of the
defendant’s right to the effective assistance of counsel.17 Id.;
accord State v. Silva, 75 Haw. 419, 442-43, 864 P.2d 583, 594
(1993) (holding that the failure to subpoena a witness that
“could have significantly bolstered Silva’s version of the
incident” resulted in substantial impairment of defense); State
v. Wakisaka, 102 Hawai‘i 504, 517, 78 P.3d 317, 330 (2003)
17
The dissent argues that the holding in Aplaca is inapposite
because other evidence adduced at trial corroborated components of the CW’s
testimony. Dissent at 30-31. However, none of the other evidence went to
the critical issues in this case: what transpired in the apartment and
Salavea’s subjective intent with regard to the backpack. Indeed, the dissent
acknowledges that the primary issue was “Salavea’s own subjective intent.”
Dissent at 29-30.
32
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
(determining that defense counsel’s line of questioning would
not have benefitted the defense and that it reflected a lack of
skill or judgment).
In this case, Salavea’s defense depended on the
credibility of Salavea and the CW. Only Salavea and the CW
testified to what occurred in the CW’s apartment. The testimony
of the other witnesses called by the State was primarily used to
corroborate other aspects of the CW’s testimony. Additionally,
defense counsel’s error was a failure to adduce evidence that
the CW was using methamphetamine at the time when the offense
allegedly occurred, which certainly may have significantly
affected the reliability of the CW’s account. Calara, 132
Hawai‘i at 402, 322 P.3d at 942 (holding that drug use and
addiction at or near the time of the incident is admissible to
impeach the witness’s perception or recollection of events); see
also Sabog, 108 Hawai‘i at 111, 117 P.3d at 843.
The dissent contends that the CW’s credibility was
immaterial to the jury’s verdict because Salavea’s own evidence
“incriminated her.” Dissent at 31. This is incorrect. Salavea
testified that she only intended to borrow the CW’s property,
and although she knew the CW had told her not to take the
backpack, she believed that it was permissible for her to borrow
33
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
it because this type of borrowing was within the norms of their
friendship.
In support of the assertion that the CW’s testimony
was immaterial to the jury’s determination, the dissent
misconstrues Salavea’s testimony at trial to reach the
conclusion that Salavea effectively confessed to the crime on
the stand. Dissent at 29. The dissent cites the exchange
during Salavea’s cross-examination in which the prosecutor
questioned Salavea about her intent to return the bag. Dissent
at 29 n.7. During that exchange, the DPA asked Salavea about
her statement that the CW had told her not to take the bag, and
Salavea explained that they were mutual friends and had
exchanged items in the past. The DPA asked Salavea whether she
thought it was okay to take the bag, even though the CW had told
her not to, because Salavea had taken items from the CW without
permission in the past.18 Salavea responded that the CW was
there at her apartment when she borrowed the bag, clearly
implying that the CW would have spoken up if Salavea’s borrowing
of the backpack were not permitted. The DPA then asked Salavea
whether it was okay to take the bag without permission, and
18
The DPA’s question misstated Salavea’s prior testimony. Salavea
had testified on direct examination that she had once borrowed a backpack
from the CW’s residence after she called the CW and received permission.
34
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Salavea acknowledged that it was not okay to take the bag after
the CW told her that she wanted to use it. The DPA asked
Salavea, “So it was a theft?” and Salavea said, “Yeah.”
Salavea’s agreement on cross-examination with the
prosecutor’s formulation of “theft” is plainly not a confession
to the felony offense of burglary in the first degree or the
crime of theft. Salavea’s acknowledgement during cross-
examination that it was wrong to take the CW’s backpack without
express permission is consistent with her testimony that she
believed it was permissible at the time of the incident.19
Moreover, the dissent’s contention disregards Salavea’s
testimony that she intended only to borrow the bag. See State
v. Kahinu, 53 Haw. 646, 648, 500 P.2d 747, 750 (1972) (vacating
the defendant’s burglary conviction because the evidence did not
establish “the requisite element of intent to commit larceny or
any felony” as a matter of law (emphasis added)).
Salavea and the CW had been close friends for six
years to the extent the CW was the godmother to one of Salavea’s
19
The dissent’s conclusion that the CW’s testimony was immaterial
relies on the assertion that Salavea testified that she knew “on the day of
the incident” that it was wrong to take the bag and that it “amounted to
theft.” Dissent at 29. As discussed, in light of the entirety of Salavea’s
testimony, the jury could have found that a reasonable doubt existed as to
whether Salavea had the subjective intent to steal the CW’s property at the
time it was taken, despite Salavea’s response to the DPA’s formulation.
35
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
children and she had been the maid of honor at Salavea’s
wedding. Both the CW and Salavea testified that they
occasionally exchanged items or borrowed from one another.
Salavea’s adoption of the DPA’s formulation of “theft” did not
prevent the jury from concluding that there was reasonable doubt
as to whether Salavea subjectively intended to steal the CW’s
property, even though she admitted that she took the backpack
without express permission.20 There was substantial evidence
before the jury about the nature of their relationship and their
history of exchanging personal possessions. The evidence before
the jury permitted the inference that Salavea did not intend to
steal the backpack at the time she took it and that she intended
to return it. The dissent’s assertion that Salavea’s own
testimony incriminated her to such a degree that the CW’s
20
The dissent’s contention demonstrates why attorneys are
prohibited from eliciting legal conclusions from witnesses. See Samson v.
Nahulu, 136 Hawai‘i 415, 429, 363 P.3d 263, 277 (2015) (citing HRE Rule 704
and stating that a witness may not give opinions on questions of law as that
would amount to legal conclusions). It is incorrect for the dissent to
assert that Salavea admitted that she had the subjective intent requisite to
theft, a legal conclusion, solely because Salavea, a layperson, accepted the
DPA’s assertion that taking property without express permission is “theft.”
Dissent at 43. Salavea’s acceptance of the DPA’s proffered definition of
“theft” was not an admission that she had the subjective intent requisite to
the actual crime of theft.
36
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
testimony was immaterial to the jury’s determination is without
merit.21
Unquestionably, the most critical evidence in this
case contradicting Salavea’s account of the incident was the
testimony of the CW. If defense counsel had adduced evidence
that caused the jury doubt or hesitancy regarding the CW’s
perception or recollection of the incident, the jury may have
discredited the CW’s account. This evidence went to the heart
of Salavea’s defense, which turned on the credibility of the
CW’s or Salavea’s version of the events. Ultimately, as in
Aplaca, “the outcome of the case depended on the credibility” of
the CW and Salavea. 74 Haw. at 72, 837 P.2d at 1308; accord
Silva, 75 Haw. at 442-43, 864 P.2d at 594.
Because the CW’s testimony was critical to the State’s
case, we are left with the firm belief that the failure of
Salavea’s counsel to elicit testimony that the CW was using or
under the influence of methamphetamine at the time of the
alleged offense resulted in the possible impairment or
withdrawal of a potentially meritorious defense. Wakisaka, 102
Hawai‘i at 516, 78 P.3d at 329 (“[Defendant] need only show a
possible impairment of a potentially meritorious defense, not
21
It is also noted that the State’s closing argument focused on the
credibility of the competing narratives of the incident, and the DPA
repeatedly argued that the CW’s testimony was more credible than Salavea’s.
37
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
probable impairment or actual prejudice.”). Defense counsel’s
failure to adduce the evidence of the CW’s drug use at the time
of the incident did not have an obvious tactical basis for
benefitting Salavea’s case. This error demonstrated counsel’s
lack of skill and judgment, and it resulted in the possible
impairment of a potentially meritorious defense. Counsel’s
representation, when viewed as a whole, was not within the range
of competence “demanded of attorneys in criminal cases,” and
thus Salavea was denied her right to the effective assistance of
counsel.22 Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707.
22
The dissent appears to contend that a single “failure to adduce
testimony at trial” can never render counsel’s assistance ineffective.
Dissent at 37. The relevant inquiry is not the number of errors defense
counsel makes, but whether counsel’s error possibly impaired a potentially
meritorious defense. This court held in Aplaca that counsel’s failure to
investigate potential witnesses and review discovery materials prevented
relevant impeachment testimony from being adduced at trial, which possibly
impaired a potentially meritorious defense, and we therefore concluded that
counsel’s assistance was ineffective. 74 Haw. at 72-73, 837 P.2d at 1307-08.
This court further held that defense counsel made an error that reflected
counsel’s lack of skill and judgment specifically because of a failure to
overcome an objection to testimony at trial. Id. at 71-72, 837 P.2d at 1307
(“[W]hen Aplaca’s trial counsel called Captain Watkins as a witness, the
State objected and requested an offer of proof. Trial counsel’s failure to
make an offer of proof further demonstrated his lack of skill and judgment.”
(emphasis added)).
Here, defense counsel’s failure to adduce the evidence impeaching
the CW’s credibility had no tactical basis for benefitting Salavea’s defense,
let alone an obvious one. Just as the defense attorney’s failure in Aplaca
to make an offer of proof had no tactical basis, here defense counsel’s
failure to overcome the hearsay objection was obviously not a tactical
decision, it provided no tactical benefit to Salavea’s defense, and it
possibly impaired a potentially meritorious defense.
38
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
B. Salavea’s Allegations of Prosecutorial Misconduct.
Salavea also contends that the prosecutor made
multiple statements during closing argument that constituted
prosecutorial misconduct. None of these statements were
objected to by the defense, although the circuit court sua
sponte interjected in several instances. In State v. Smith,
after concluding that there were errors reflecting defense
counsel’s lack of skill or judgment and that the errors
substantially impaired a potential meritorious defense, we
stated “there [was] more in the record to support the claim that
counsel’s performance at trial was not within the range of
competence expected of Hawaii lawyers in criminal cases.” 68
Haw. at 312-13, 712 P.2d at 502. Similarly, our review in this
case of the contentions of prosecutorial misconduct, which were
not subject to objection, bolsters the conclusion that the
assistance provided by Salavea’s trial counsel, when viewed as a
whole, was not within the range of competence demanded of
attorneys in criminal cases. Cordeiro, 99 Hawai‘i at 405, 56
P.3d at 707. Additionally, we consider the assertions of
prosecutorial misconduct to address the ICA’s interpretation of
applicable precedent and to provide guidance in the event these
matters arise during subsequent proceedings. State v. Basham,
132 Hawai‘i 97, 112, 319 P.3d 1105, 1120 (2014) (“In order to
39
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
provide guidance to the circuit court and the parties on remand,
we address Basham’s remaining claims of prosecutorial
misconduct.”); Wakisaka, 102 Hawai‘i at 518, 78 P.3d at 331
(“Although the [determination of prosecutorial misconduct and
ineffective assistance of counsel] are dispositive of this case,
we address the court’s exclusion of much of [the expert’s]
proffered testimony in order to provide some guidance on
retrial.”).
When reviewing allegations of prosecutorial
misconduct, the following factors are considered: (1) the nature
of the conduct; (2) the promptness of a curative instruction;
and (3) the strength or weakness of the evidence against the
defendant. State v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231,
1238 (1999). Salavea submits that there are four separate bases
to conclude that the State committed prosecutorial misconduct
during closing argument.
1. Expression of Personal Opinion
Salavea contends that the prosecuting attorney
improperly offered a personal opinion that the CW was a credible
witness and that Salavea was not credible. During closing
argument, a prosecutor is permitted to draw reasonable
inferences from the evidence and wide latitude is allowed in
discussing the evidence. State v. Underwood, 142 Hawai‘i 317,
40
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
326, 418 P.3d 658, 667 (2018). But 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.” Basham, 132 Hawai‘i at 115, 319 P.3d
at 1123 (internal quotation marks omitted); see also Cordeiro,
99 Hawai‘i at 424-25, 56 P.3d at 726-27; State v. Clark, 83
Hawai‘i 289, 304, 926 P.2d 194, 209 (1996); State v. Marsh, 68
Haw. 659, 60-61, 728 P.2d 1301, 1302 (1986). Prosecutors may,
however, cite to specific facts or evidence indicating the lack
of trustworthiness of the witness or defendant when discussing a
witness or defendant’s testimony during summation. State v.
Walsh, 125 Hawai‘i 271, 295, 260 P.3d 350, 374 (2011) (stating
that the “prosecution is free to refer to the specific
inconsistencies and contradictions in a defendant’s testimony or
with other evidence”). A statement about a witness’s
credibility that is made without reference to the evidence or
facts supporting the assertion amounts to an expression of
personal opinion.23 Basham, 132 Hawai‘i at 118, 319 P.3d at 1126
(noting that the prosecutor’s argument that the defendant had
23
It is noted, however, that a statement may improperly imply a
personal opinion or special knowledge even if specific facts or evidence are
invoked. See Am. Bar Ass’n, Criminal Justice Standards for the Prosecution
Function, Standard 3-6.8(b) (4th ed. 2017) (“The prosecutor should not argue
in terms of counsel’s personal opinion, and should not imply special or
secret knowledge of the truth or of witness credibility.”).
41
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
“no reason to tell you the truth” was improper because it was
not based on the evidence or a reasonable inference drawn from
the evidence).
This principle is based on the rationale 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 an attorney from the cause being
argued. Basham, 132 Hawai‘i at 115, 319 P.3d at 1123. Further,
a personal opinion as to the veracity of a witness’s testimony
impermissibly usurps the jury’s role as the assessor of witness
credibility. State v. Austin, 143 Hawai‘i 18, 52, 422 P.3d 18,
52 (2018). Conclusory opinions regarding a witness’s
credibility are inadmissible because the jury is fully capable
of making the connections to the facts of the particular case
before them and drawing inferences and conclusions therefrom.
Id.
Salavea identifies the following statements as
improper expressions of personal opinion as to the credibility
of the CW:
1) “[The CW] told you the truth.”
2) “[The CW]’s testimony was credible.”
3) “[The CW] told you and she was very frank with
you[.]”
42
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
4) “[The CW] was very forthright, she was very
forthright about how she felt. And she also told you
frankly that they were close friends.”
5) “She was also very frank and forthright how she
described what happened to her when she discovered
things were missing.”
6) “[The CW] told you the truth.”
Additionally, Salavea contends that statements such as the
following were improper expressions of personal opinion as to
Salavea’s credibility:
1) “Defendant’s story that she had permission to go in
and she had somehow thought it was okay and that [the
CW] cooperated with her and [the CW] let her do all
of that is not credible. It’s not credible, it’s a
lie because it doesn’t make any sense.”
2) “[T]he whole story by Defendant that the fob was lost
by [the CW] on March 6th does not hold, does not hold
up. That’s a lie, and from there, it follows that
she was concealing the fob, she was deliberately
holding on to that fob secretly so she could go in
her own time at her own convenience and take from
[the CW].”
3) “The records show that [the CW] got her replacement
fob on June 27th. That directly contradicts
Defendant’s story that [the CW] lost it in the car,
and from there, everything crumbles, everything the
Defendant tells you is not true.”
4) “It’s a Burglary in the First Degree because
Defendant, by lying about how the fob situation went
up . . . went there specifically with an intent to
commit the crime[.]”
5) “Cari Salavea is not a truthful witness.”
(Emphases added.)
Our review of the DPA’s closing argument discloses
that at least two of these statements bolstered the CW’s
43
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
credibility without any reference to the evidence supporting the
assertion.24 Similarly, the DPA attacked Salavea’s credibility
at least twice without prior reference to the evidence.25 The
DPA also repeatedly asserted that Salavea had lied, a statement
this court has found to be such a strong expression that it
necessarily reflects the personal opinion of the speaker.
Austin, 143 Hawai‘i at 56, 422 P.3d at 56; see also Basham, 132
Hawai‘i at 113, 319 P.3d at 1121 (citing Domingo-Gomez v. People,
125 P.3d 1043, 1050 (Colo. 2005)). These assertions about the
credibility of Salavea and the CW were not directly linked to
24
The first two statements, in which the DPA stated that the CW
told the truth and her testimony was credible, were made at the beginning of
closing argument before the DPA referenced any of the evidence adduced at
trial. Similarly, near the end of rebuttal, the DPA again asserted that the
CW told the jury the truth without reference to the evidence. This caused
the court, for the fourth time, to sua sponte interject, “Well, the State
submits.” The prosecutor then revised the statement: “The State submits she
told you the truth.” The court then struck the statement and instructed the
jury to disregard it. These statements were clear expressions of the DPA’s
personal opinion because they did not reference the evidence supporting the
assertion. We do not address the propriety of the other statements Salavea
identifies. The dissent does not contest that the DPA failed to reference
the evidence supporting these assertions but argues nonetheless that they
were appropriate because they were “rooted in the context of evidence.”
Dissent at 43. This explanation does not address the underlying misconduct
of the DPA expressing an improper personal opinion. Basham, 132 Hawai‘i at
115-16, 319 P.3d at 1123-24.
25
The first statement that Salavea’s version of the events was not
credible and was a lie was made prior to any reference to the evidence from
which this inference could be drawn. Likewise in the fourth statement, the
DPA asserted that Salavea had lied about how she got the CW’s fob before
referencing the relevant evidence. In total, the DPA, without objection,
stated Salavea lied or was lying three times during closing argument. As
with the statements regarding the CW, the DPA’s statements about Salavea’s
credibility that were made without reference to the evidence amounted to
expressions of the DPA’s personal opinion. We do not consider whether the
DPA’s other assertions about Salavea’s credibility were appropriate.
44
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the evidence and therefore amounted to expressions of personal
opinion.26 Basham, 132 Hawai‘i at 118, 319 P.3d at 1126; Walsh,
125 Hawai‘i at 295, 260 P.3d at 374.
With respect to the DPA’s use of the word “lie” during
closing argument, the ICA observed this court’s proscription in
Austin of the use of the term “lie” and its derivatives during
closing argument created a new rule that applied only on a
prospective basis. And therefore, the ICA concluded that it was
not misconduct for the DPA to use the term “lie” at the time of
Salavea’s trial. The dissent also appears to conclude that the
DPA could not have committed misconduct by asserting that
Salavea lied because Salavea’s trial took place before our
decision in Austin. Dissent at 42. While it is correct that
our proscription of the word “lie” was prospective, it does not
follow that it was appropriate to use the word “lie” at the time
of Austin or Salavea’s trial. Indeed, in Austin, this court
found that the prosecutor’s use of the term “lie” during
Austin’s trial was improper under applicable precedent. Austin,
143 Hawai‘i at 51, 422 P.3d at 51 (citing Basham, 132 Hawai‘i at
113, 319 P.3d at 1121; State v. Pacheco, 96 Hawai‘i 83, 95, 26
P.3d 572, 584 (2001)).
26
The impropriety of the DPA’s statements is underscored by the
circuit court’s multiple interjections during the DPA’s closing argument.
45
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Further, this court recognized that such assertions
could amount to an expression of a prosecutor’s personal opinion
long before we proscribed the use of the word “lie” during
closing argument. Marsh, 68 Haw. at 660-61, 728 P.2d at 1302-
03. In Marsh, this court held that the prosecutor committed
misconduct (1) by making the following assertions about 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”; and (2) by arguing as
to the alibi witnesses’ credibility: “You should entirely
disregard their testimony because, if you will remember, every
one of them lied on the stand[.]” Id. at 660, 728 P.2d at 1302.
Although there was no objection to these assertions, the Marsh
court, in light of these and similar statements, noticed plain
error and vacated the conviction. Id.
In this case, the manner in which the DPA used the
word “lie” implicitly expressed a personal opinion as to the
veracity of Salavea’s testimony, which has always been improper.
Id. at 660-61, 728 P.2d at 1302-03. The mere fact that the DPA
was not prohibited from using the term “lie” during closing
argument does not mean that misconduct was not committed. The
underlying impropriety of expressing a belief that a witness has
lied clearly predates our decision in Austin. See Basham, 132
46
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Hawai‘i at 113, 319 P.3d at 1121; Clark, 83 Hawai‘i at 304, 926
P.2d at 209; Marsh, 68 Haw. at 660-61, 728 P.2d at 1302-03.
Thus, the ICA erred in concluding that it was not misconduct for
the DPA to use the term “lie” during closing argument at the
time of trial in this case, and the dissent similarly errs in
reaching the same conclusion. Austin, 143 Hawai‘i at 51, 422
P.3d at 51; Basham, 132 Hawai‘i at 113, 319 P.3d at 1121.
The ICA also concluded that the circuit court “gave
numerous prompt curative instructions (‘the State submits’).”
First, only some of the improper statements received an
interjection from the court. Second, the mere statement by the
court that “the State submits,” and then the DPA repeating that
phrase as a preface is insufficient to rectify the improper
credibility opinion as the jury is not informed that the initial
statement is improper or that it should be disregarded. Cf.
State v. Souza, 142 Hawai‘i 390, 403–04, 420 P.3d 321, 334–35
(2018) (“A jury instruction must be specific to the harm
resulting from the error to function as a curative, and a
general, boilerplate instruction will not serve to eliminate the
prejudice.” (citing Basham, 132 Hawai‘i at 111, 319 P.3d at
1119)); State v. Espiritu, 117 Hawai‘i 127, 143, 176 P.3d 885,
901 (2008) (stating that while the court did properly instruct
the jury on the elements of the defense, the instruction could
47
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
not cure the prosecutor’s misstatement of the law “where no
specific curative instruction relating to the misstatements was
given”). Here, the only satisfactory curative instruction given
during closing argument was the single instance that the court
told the jury to disregard the DPA’s stricken statement that the
CW told the jury the truth. Thus, the ICA incorrectly concluded
that numerous, prompt curative instructions remedied the DPA’s
improper statements. The dissent’s conclusion is flawed for the
same reasons.27 See Dissent at 42.
2. Generic Attack on Credibility
Salavea also contends that the DPA committed
misconduct during summation by implying that Salavea had lied
during her testimony purely because she, as the defendant, had
an interest in the outcome. Specifically, the DPA stated that
“every Defendant has a lot of interest in the result of the
case, and that’s natural, but you cannot disregard it. It’s
27
Additionally, the ICA and the dissent reference the general
instruction given to the jury that the statements or arguments made by
lawyers are not evidence. Dissent at 43. However, this general instruction
plainly did not rectify the improper statements of the DPA. As we have
stated in a similar context, because “the instruction did not address the
problematic nature of the prosecutor’s statements” and it was “general in
nature and was delivered to the jury along with a large number of other
standard instructions before closing arguments began,” it failed to serve as
a curative measure for the misconduct. Underwood, 142 Hawai‘i at 327-28, 418
P.3d at 668-69; see also Smith, 68 Haw. at 312, 712 P.2d at 501 (“Where . . .
the success of the asserted defense hinged on defendant’s credibility, we
would be hard put to say instructions from the court probably had the desired
curative effect[.]”); Walsh, 125 Hawai‘i at 294, 260 P.3d at 373.
48
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
still there. There is interest and bias. Defendant has a lot
of interest [in] what’s at stake.”
In Basham, this court held that “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.” 132 Hawai‘i at 118, 319 P.3d at 1126
(internal quotation marks omitted). In its review of the
alleged misconduct in this case, the ICA held that Basham was
not controlling because the Basham court cited to, but did not
expressly overrule, State v. Apilando, 79 Hawai‘i 128, 900 P.2d
135 (1995).28 In support of this conclusion, the ICA cited to
State v. Magbulos, 141 Hawai‘i 483, 413 P.3d 387 (App. 2018),
stating that it had “recently attempted to reconcile this
apparent inconsistency” and concluded that Basham did not
overrule Apilando and should therefore be read narrowly.
However, in Austin, which predated the ICA decision in
this case, this court had already addressed the “apparent
inconsistency” between Basham and Apilando and declared our
disapproval of the ICA’s interpretation in Magbulos. Austin, 43
Hawai‘i at 56 n. 12, 422 P.3d at 56 n. 12. This court
28
In Apilando, this court held that it was not improper for the
prosecutor to argue during closing argument that the defendant had the
highest stake in the outcome of the case and therefore had the greatest
motive to lie. 79 Hawai‘i at 142, 900 P.2d at 149.
49
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
specifically stated that our decision in Basham “overrules any
prior precedents to the extent they are in conflict, and we
express our disapproval of those portions of the Intermediate
Court of Appeal’s recent opinion in State v. Magbulos that
misapprehend and mischaracterize our holding in Basham.” Id.
Thus, the ICA’s reliance on Magbulos in its analysis of this
allegation of prosecutorial misconduct did not follow our
precedent. We therefore again reaffirm that it is improper for
prosecutors to make “generic arguments regarding a defendant’s
credibility” during summation.29 Id.
Looking to the “nature of the alleged misconduct,”
Rogan, 91 Hawai‘i at 412, 984 P.2d at 1238, it is clear that the
DPA’s statement was improper. The DPA specifically referred to
the interest that “every Defendant has . . . in the result of
the case.” (Emphasis added.) By generically referring to every
defendant’s interest in the outcome, the DPA attacked Salavea’s
29
In this case, the ICA also cited its conclusion in Magbulos that
our holding in Basham was inconsistent with the Hawai‘i Standard Jury
Instructions Criminal (HAWJIC), which provide that the jury may consider a
witness’s interest in the result of the case when evaluating the weight and
credibility of the witness’s testimony. Our holding in Basham, however, does
not preclude the prosecution from arguing that the evidence adduced at trial
shows the defendant has a particularized, non-generic interest in the outcome
that affects the credibility of the defendant’s testimony. Basham simply
prohibits the prosecution from making “generic arguments regarding a
defendant’s credibility,” i.e., arguments that are uncoupled from evidence
showing the defendant has a particular interest in the outcome separate from
the generic interest shared by all defendants in criminal cases. Thus,
contrary to the ICA’s conclusion in this case and in Magbulos, Basham is not
inconsistent with the standard HAWJIC.
50
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
credibility solely because of her status as a defendant.30
Basham, 132 Hawai‘i at 117, 319 P.3d at 1125 (“[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.”).
Further, the DPA did not reference any evidence adduced at trial
that could support an inference that Salavea had a
particularized, non-generic interest in the outcome that
affected her credibility. Walsh, 125 Hawai‘i at 295, 260 P.3d at
374 (noting that a prosecutor may refer to specific
inconsistencies and contradictions in a defendant’s testimony or
with other evidence). Thus, the ICA erred in concluding that it
was not misconduct for the DPA to imply that Salavea lied simply
because she was the defendant.
3. Denigration of Defense Counsel
Salavea also contends that the DPA committed
misconduct during closing argument by personally attacking
defense counsel and accusing counsel of attempting to manipulate
the jury. We again look to the nature of the alleged misconduct
to determine whether it was improper. Rogan, 91 Hawai‘i at 412,
984 P.2d at 1238.
We note that in analyzing the generic nature of the DPA’s closing
argument, the dissent addresses only the problematic comment that Salavea had
“a lot of interest [in] what’s at stake” and not the entirety of the DPA’s
improper statement. Dissent at 45.
51
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
A prosecutor engages in misconduct by making comments
during closing argument that impermissibly attack the integrity
of defense counsel or that denigrate the legal profession in
general. State v. Pasene, 144 Hawai‘i 339, 370, 439 P.3d 864,
895 (2019); State v. Klinge, 92 Hawai‘i 577, 595, 994 P.2d 509,
527 (2000). This court recently discussed the particular
dangers posed by a prosecutor’s attacks on defense counsel
during closing argument in Underwood. 142 Hawai‘i at 325–27, 418
P.3d at 666–68. We observed that such attacks are extremely
problematic because “a jury is apt to attach undue weight to a
prosecutor’s disparagement of defense counsel.” Id. at 327, 418
P.3d at 668. We further stated that accusations of this nature
implicate the defendant’s right to a fair trial “because it is a
‘strik[e] at the appellant over the shoulders of his counsel in
an attempt to prejudice the jury against the appellant.’”31 Id.
(alteration in original) (quoting Bell v. State, 614 S.W.2d 122,
123 (Tex. Crim. App. 1981)). Further, attacks on the personal
character of defense counsel are improper because they denigrate
31
Similarly, a disparagement of the defendant that cannot be
inferred from the evidence adduced may improperly prejudice the jury and
implicate the defendant’s right to a fair trial. Basham, 132 Hawai‘i at 113,
319 P.3d at 1121 (noting that it was misconduct to argue that the defendant
had lied to the police about being the driver of a vehicle because the
defendant had not been charged with any misconduct regarding the vehicle and
any evidence that he lied to the police would have been subject to Hawai‘i
Rules of Evidence Rule 404(b) as evidence of “other acts”).
52
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the legal profession--insinuating that defense counsel’s zealous
representation of a client amounts to unethical behavior--and
undermine the adversarial system. Id. As such, disparagement
of defense counsel during closing argument clearly constitutes
prosecutorial misconduct. Id.; Klinge, 92 Hawai‘i at 595, 994
P.2d at 527.
During the defense’s closing argument in this case,
the DPA objected to defense counsel’s statement that Salavea was
in tears at one point during her testimony, contending it was
not in evidence and it was a personal statement.32 The court
overruled the objection. Nonetheless, the DPA in rebuttal
32
The relevant portion of the defense’s closing argument is as
follows:
[DEFENSE COUNSEL]: If I may leave you with a suggestion of
evaluating the evidence in this case, it would be this.
You recall that just before our lunch break, [Salavea] went
on the witness stand, and the Deputy Prosecutor asked her
whether she didn’t take the Roxy bag without permission and
whether that wasn’t indeed theft, and [Salavea] broke down,
she was in tears, and that’s, I suggest-–
[DPA]: Objection, Your Honor. This is not in evidence, and
it’s personal statement.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And that’s because it probably didn’t
even occur to her that that playful little act might be
viewed by the law as a theft. Now, the Government would
have you believe that [Salavea], being that type of person,
would take all of her friend’s valuables, and it’s just not
borne out by the evidence. Something occurred between
these two women, but it wasn’t a burglary.
(Emphasis added.)
53
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
stated that defense counsel had made an improper argument,
asserting to the jury that “Defense Counsel was just . . .
trying to appeal to your sense of pity . . . for Defendant, and
that’s improper.” The DPA’s insinuation that defense counsel
was trying to mislead the jury by making an improper appeal to
the jury’s sense of pity was clearly wrong as a lawyer may
comment on a witness’s appearance and demeanor during their
testimony.33 The ICA concluded that this statement was proper
because the DPA “simply reminded the jury about the Circuit
Court’s instruction in response to what could reasonably have
been interpreted as defense counsel’s attempt to have the jury
take pity on Salavea.” The dissent agrees. Dissent at 49.
This conclusion does not recognize that the DPA did much more
33
The dissent asserts that defense counsel in fact did commit
misconduct by drawing the jury’s attention to Salavea’s demeanor, and thus it
was perfectly appropriate for the DPA to accuse defense counsel of misconduct
during rebuttal. Dissent at 48-49. The dissent also intimates that the
circuit court erred in overruling the DPA’s objection. Dissent at 47-48.
HAWJIC 3.09 (2014) provides in relevant part as follows: “In evaluating the
weight and credibility of a witness’s testimony, you may consider the
witness’s appearance and demeanor[ and] the witness’s manner of
testifying[.]” (Emphases added.) Thus, defense counsel’s comment on Salavea
crying during her testimony clearly was not an improper appeal to the
emotions of the jury. Therefore, the court properly overruled the DPA’s
objection.
More importantly, we reject the dissent’s contention that
misconduct by an attorney during closing argument grants opposing counsel
license to accuse the attorney of misconduct on rebuttal. Dissent at 48-49.
The appropriate response to improper argument is an objection, and the
disposition of an objection is within the discretion of the trial court, not
counsel. The DPA was not permitted to accuse defense counsel of misconduct
simply because the DPA disagreed with the court’s overruling of the
objection, and the dissent’s disagreement cannot retroactively sanction the
DPA’s improper conduct.
54
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
than remind the jury that its decision should not be influenced
by pity for the defendant; the DPA told the jury that defense
counsel had improperly attempted to influence the jury’s
decision by appealing to its sense of pity. This accusation was
clearly incorrect, as the circuit court recognized when it
properly overruled the prosecutor’s objection.34 We reaffirm
that attacks on defense counsel, both express and implied,
constitute prosecutorial misconduct.35 Underwood, 142 Hawai‘i at
327, 418 P.3d at 668; Klinge, 92 Hawai‘i at 595, 994 P.2d at 527.
34
The dissent suggests that the DPA’s accusation of misconduct was
justified because the attack aimed to undermine defense counsel’s argument on
“the primary issue at trial.” Dissent at 48. Defense counsel’s comment
during closing argument was proper as ruled by the trial court. See supra
note 33. Additionally, neither the DPA’s tactical goals nor the criticality
of the subject matter provides acceptable justification for the DPA’s
improper accusation that defense counsel committed misconduct, as our law
makes plainly clear. Pasene, 144 Hawai‘i at 370, 439 P.3d at 895; Underwood,
142 Hawai‘i at 327, 418 P.3d at 668; Klinge, 92 Hawai‘i at 595, 994 P.2d at
527.
35
Salavea also contends that the following statement was an
improper attempt by the prosecutor to shift the burden of proof to the
defense:
[W]hy would [the CW] go through all of this and why would
[the CW] go and make up a story if it was not what
happened? There was no evidence by Defendant why is it
that [the CW] would do it, and there was no evidence from
[the CW], even though we pushed her, both of us, that she
had any reason to tell this story.
Read in isolation, the statement that there “was no evidence by
Defendant why is it that [the CW] would do it” suggests that Salavea
was obligated to adduce evidence that the CW’s account was not
credible. While the preceding and subsequent statements appear to
indicate that the prosecutor was attempting to argue that nothing in
Salavea’s or the CW’s testimony suggested that the CW’s account was
untruthful, the challenged statement improperly suggested that Salavea
had the burden of showing why the CW’s testimony was not credible.
55
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In summary, we conclude that the DPA made several
statements during closing argument that were improper. Because
we have already determined that Salavea’s conviction must be
vacated, we need not consider whether the prosecutorial
misconduct in this case would also warrant vacatur of the
conviction. However, the multiple clear instances of
prosecutorial misconduct during closing argument bolster our
conclusion that the assistance of Salavea’s trial counsel, when
viewed as a whole, was ineffective. Defense counsel did not
make a single objection to any of the DPA’s improper statements
during closing argument, which any competent defense attorney
should have done. Smith, 68 Haw. at 312-13, 712 P.2d at 502
(noting that other instances of inadequate performance in the
record bolstered the court’s conclusion that trial counsel’s
assistance was ineffective). Additionally, despite several
interjections by the court, the defense attorney still did not
apprehend the improprieties in the DPA’s closing argument and
made no objections at all.36 Clearly, counsel’s failure to make
objections and move to strike the various instances of
36
This court has observed that in order to fulfill their duties as
advocates and provide effective assistance, lawyers must ensure that their
knowledge of relevant case law is up-to-date. Batalona v. State, 142 Hawai‘i
84, 96, 414 P.3d 136, 148 (2018).
56
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
misconduct was not within the range of competence demanded of
attorneys in criminal cases.37
V. CONCLUSION
Based on the foregoing, we vacate the ICA’s Judgment
on Appeal entered on July 9, 2019, and the circuit court’s
amended judgment. The case is remanded to the circuit court for
further proceedings consistent with this opinion.
Randall H. Hironaka /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Sonja P. McCullen
for respondent /s/ Michael D. Wilson
37
Salavea also contends that the evidence adduced at trial was
insufficient to support her conviction for burglary in the first degree.
Specifically, Salavea argues there was not substantial evidence that she
entered the CW’s apartment unlawfully or that she had the intent to commit a
crime therein at the time of her entry. Although our conclusion that the
ineffective assistance of defense counsel requires that Salavea’s conviction
be vacated, challenges to the sufficiency of the evidence must always be
considered on appeal as “the [d]ouble [j]eopardy [c]lause bars retrial of a
defendant once a reviewing court has found the evidence at trial to be
legally insufficient to support a conviction.” State v. Kalaola, 124 Hawai‘i
43, 59, 237 P.3d 1109, 1125 (2010) (alterations in original) (quoting State
v. Malufau, 80 Hawai‘i 126, 132, 906 P.2d 612, 618 (1995)). In considering
Salavea’s contention, the evidence is viewed in the light most favorable to
the prosecution. Id. at 46 n.2, 237 P.3d at 1112 n.2. Upon review, we
conclude that there was substantial evidence that Salavea intended to use the
CW’s misplaced fob to enter her apartment and take her property without
permission. Thus, there was sufficient evidence to support every material
element of the offense that underlies Salavea’s conviction.
57