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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-AUG-2021
07:47 AM
Dkt. 53 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Plaintiff-Appellee,
v.
SAMANTHA K.K. LABATAD,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Samantha K.K. Labatad aka Samantha
Labatad (Labatad) appeals from the Judgment of Conviction and
Sentence, Notice of Entry (Judgment), entered on December 11,
2017, in the Circuit Court of the First Circuit (Circuit Court).1
A jury found Labatad guilty of Assault in the Third Degree
(Assault Third), in violation of Hawaii Revised Statutes (HRS)
§ 707-712(1)(a) (2014).2 The Circuit Court sentenced Labatad to
1
The Honorable Christine E. Kuriyama presided.
2
HRS § 707-712 provides:
(1) A person commits the offense of assault in the third
degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
(continued...)
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one year probation and three days in jail, with credit for time
served.
On appeal, Labatad contends: (1) the Circuit Court
erred by omitting a mutual affray jury instruction; (2) the
Circuit Court erred by denying Labatad's motion for mistrial
based on prosecutorial misconduct; and (3) there was insufficient
evidence to negate her claim of self-defense.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Labatad's points of error as follows, and vacate and
remand based on instructional error.
The pertinent background is as follows. Plaintiff-
Appellee State of Hawai#i's (State) May 15, 2017 Complaint
against Labatad charged her with Assault Third against Donna
Peake (Peake).3 The subject incident occurred on the evening of
November 1, 2016, at the conclusion of a movie showing at the
Ward Theater in Kaka#ako.
Peake testified that she and her daughter, Courtney
Choy (Daughter), entered the screening room around 6:00 p.m.,
taking seats a few rows from the back, with Peake sitting three
to four seats from the right aisle, and Daughter to her left.
Labatad and her boyfriend, Elijah Morris (Morris), then came,
scooting past them and sitting two seats to their left. As the
previews began, Labatad and Morris started to talk at a
conversational volume, not whispering. Peake shushed them, but
they continued to talk. Morris's phone rang a few times. Peake
2
(...continued)
(2) Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty misdemeanor.
3
The Complaint stated:
On or about November 1, 2016, in the City and County
of Honolulu, State of Hawai#i, SAMANTHA K.K. LABATAD, also
known as Samantha Labatad, did intentionally, knowingly, or
recklessly cause bodily injury to Donna Peake, thereby
committing the offense of Assault in the Third Degree, in
violation of Section 707-712(1)(a) of the Hawai#i Revised
Statutes.
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shushed them again, for at least three times total, and Daughter
also shushed them. The couple did not react.
After the movie ended and credits began to roll, Peake,
Daughter, Labatad and Morris stood up. In the partially-lit
theater, Peake approached the couple and said, "[Y]ou know, you
guys, if you want to talk, talk outside. You know, If [sic]
you're here to watch the movie, watch the movie. You know, in
that, kind of auntie kind . . . ." Morris reacted with a
"humpf," but Labatad "went belligerent." Peake testified that
Labatad said, "[T]his is [sic] United States of America; I can do
whatever I want."
Peake testified that at that moment, Morris was "right
up against" Daughter's face. He was taller, and Peake "feared
for her" so she told Morris, "Don't you touch her." Because
Labatad was "in [Peake's] face" Peake told her, "Don't you touch
me either; don't you touch any of us -- both of us." Labatad
responded: "I can touch you if I want," and poked her three
times on her collarbone, with her right hand.4 Labatad continued
walking away, but "stepped back and said, Here, as a matter of
fact, I'll give you this, 'woom.'" Peake claimed Labatad hit
her, with a closed fist, knocking her off balance. Peake yelled
at Daughter to call the police and screamed in the theater, "Get
this girl, . . . she just punched me; she just assaulted me."
Peake testified that Morris was heading toward the exit
with Labatad following him, when Labatad turned back and punched
Peake again, in the lower right cheek. Labatad and Morris pushed
their way through the crowd and ran out the theater. Peake and
Daughter moved slowly into the lobby, where they talked to
police, theater management, and ambulance personnel, and Peake
gave a written statement to police. Peake was given ice, but
declined ambulance services, although her face was in "throbbing
pain." Peake testified she went to the emergency room the next
morning around 10:30 a.m. During the following week, Daughter
4
Daughter's testimony corroborates that Labatad poked her mother on
the collarbone.
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took photographs of Peake's face to show bruising on Peake's
right cheek.
Daughter's testimony mostly corroborated the relevant
details of Peake's story. Daughter saw Labatad poke Peake and
throw a drink at her. Daughter said Peake asked her to call 911
after being poked, and while Daughter was on the phone Daughter
heard Peake say Peake had been punched; Daughter did not see the
hit but saw Peake "gripping her cheek" and saying she'd been
punched.
Labatad and Morris admitted at trial they talked during
the movie, despite knowing that they weren't supposed to. Morris
said after the movie, Peake and Daughter moved towards them and
were preventing them from exiting the row, but not creating a
barrier. Peake "verbally confronted" them "along the lines of us
being disruptive and how we shouldn't be, kind of scolding us."
Morris continued to exit the row when Morris saw, out of the
corner of his eye, "popcorn in the air and, like a -- a
scuffle[,]" so he turned around and saw Peake and Labatad
"yelling at each other." Then he heard Peake saying, "[S]he hit
me; she hit me." Morris "grabbed" Labatad and said, "Let's go."
They exited the theater.
Labatad testified that she was apologetic when Peake
came over, but admitted saying it was a free country. "She was
looking at me frustratedly. So . . . Yes; I'm sorry you feel
that way; this is America; I do have a right to freedom of
speech." Labatad claimed she did not yell at Peake or move her
body. "I guess I did feel bad for disturbing her, because that's
when I realized, like, the shushes were directed towards . . . me
and [Morris], like, figuring out that I really was being
inconsiderate. So I did apologize to her." Labatad stated that,
"[I]t totally pissed [Peake] off. . . . [S]he made this really
angry face at me, like she was going to do something." Labatad
explained that she and Morris had passed Peake, and Morris was
passing in front of Daughter, "just trying to leave and avoid any
problems . . . ." Labatad said it was then that she got hit: "I
just felt, like, a really brute force, blunt strike to the back
of my head, like somebody had hit me with their fist or their
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elbow. It was a really forceful blow, and it, like, put me in
shock." When cross-examined, Labatad could not pinpoint whether
the impact was to her head. Labatad described her reactions as
follows:
I put my arms up -- both arms up like this . . . . [M]y body
was, like, a -- in a cross . . . .
. . . .
With both my arms out super wide, I, like, 180 spinned [sic]
around as fast as I could because the person, whoever it was,
which I would assume it would be [Peake] -- I assumed that it
wouldn't stop there because the physical violence has already
started.
She spun around "with my arms out like this in attempt to push
away and ward off . . . whoever hit me behind me." Labatad
testified that after she had turned around, "I seen her [(Peake)]
behind me, and I seen that I did strike her across her temple –-
side temple and cheek of the face" with Labatad's right hand.
Labatad said her hand was open, and she hit Peake with the back
of her hand. Labatad rushed past Daughter, "because I've been
struck and I've strucken [sic] [Peake] back." Peake followed her
out into the aisle, yelling "assault." Labatad denied telling
Peake she could touch her if she wanted or poking Peake. Labatad
denied that she hit Peake a second time. Labatad claimed that
when Peake followed her, Labatad threw the liquid contents of her
cup at Peake. Morris then turned back toward Daughter and told
her, "Control your mother." Labatad told the movie theater
attendant as she left, "I defended myself; this is self-defense."
Labatad did not file a police report.
On September 20, 2017, the day that voir dire was
scheduled to begin, the prosecutor informed the Circuit Court
that she had learned that Morris had five outstanding district
court bench warrants, and that she informed defense counsel that
the sheriffs might serve Morris that day, if he appeared to
testify. Defense counsel expressed concern that the prosecutor
notified the sheriffs about the warrants and stated: "I think we
need to take steps to prevent it from somehow tainting this case
or tainting this jury." Defense counsel requested that the
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Circuit Court communicate concerns "through court staff with the
sheriff's office . . . ." The Circuit Court indicated that it
would do so, as follows:
THE COURT: Okay. I agree with both of you. It's
important that the trial proceed as scheduled without any
negative impact from [Morris] appearing at court and
testifying and/or being picked up on these outstanding
District Court traffic warrants.
I am willing to contact the sheriff's office. Again,
I can only ask. They need to do the job they have to do,
and I am not going to tell them otherwise. But I am going
to request that if he does show up to court to testify today
that he be allowed to come to –- into court and testify.
What happens once he leaves the courtroom is something that
is out of my hands. Again, I cannot interfere with their
ability to do their job.
I will do my best to ensure that nothing that happens is
done in the presence of the jury. By that point, the jury will
have been empaneled.
Later that day, the court clerk spoke with a deputy
sheriff who wanted more information so the sheriff could track
down the warrants to determine who, if anyone, would be trying to
serve them. Defense counsel did not object to the warrant
numbers being given to the sheriffs, but stated he was "in no way
asking or endorsing that they take personal action to serve these
warrants." The Circuit Court instructed the clerk to tell the
deputy that the Court requested that Morris be allowed, "to
testify without incident, and . . . to make sure that the jurors
are not negatively impacted or tainted in any way." The Circuit
Court stated, "I don't think it's appropriate for the Court to
say, you know, 'don't serve the warrants' or 'serve the
warrants.' That's entirely up to them."
The court clerk provided the sheriffs with the warrant
information, along with Morris's date of birth. The judge, via
speaker phone, "instructed the deputy sheriff that the Court's
request was that [Morris] be allowed to testify today without
incident and that the Court did not want the proceeding tainted
or negatively impacted any -- in any way, shape, or form. And
that would include the prospective jurors." The deputy asked if
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the court staff would call once Morris had testified; the court
refused.
Peake testified the next morning, on September 21,
2017. Some time before the lunch recess, the Circuit Court
learned that Morris had been picked up on the outstanding
warrants; and defense counsel expressed concern that he would not
be available to testify.
Before reconvening after lunch, the Circuit Court heard
testimony from two deputy sheriffs and Labatad's mother,
regarding circumstances surrounding the service of the warrants
on Morris. Deputy Sheriff Stephen Huynh (Huynh) told the Circuit
Court that he and his partner, Deputy Sheriff Kimbrel Kim (Kim),
arrested Morris on outstanding warrants at approximately 10:30
a.m., "five minutes, give or take." The sheriffs took Morris
into custody in the witness room, approximately two rooms away
from the courtroom. A woman, later identified as the defendant's
mother, Tammie Labatad, was in the room with Morris. Someone
leaving the courtroom would have to pass the witness room to exit
the building. The deputies said they left the witness room door
"slightly open."5 Three other deputies were outside, along with
other people whom Huynh believed were involved with another case
because they sat on the benches further down the hall. The
deputies handcuffed Morris behind his back, and without incident,
escorted him down the hallway, downstairs and then took him to
the Sheriff Receiving Booking Station in Kaka#ako.
Tammie Labatad testified that one sheriff was standing
in the foyer, and another, identified as Kim sat, in plain
clothes, next to her in the back of the courtroom. She was in
the courtroom for five or ten minutes when both sheriffs
"disappeared." She said she understood that the sheriffs were
"supposed to take [Morris] after he testified." She said from
the time she noticed the sheriffs were gone, and the time Morris
had been taken from the courthouse, was 15 to 20 minutes.
Huyhn testified that the deputy prosecuting attorney
notified him in person the day before to serve the warrants. The
5
Tammie Labatad testified that the door was wide open.
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prosecutor also requested a "standby" because "last time there
was some disruptive –- or arguing going around –- going on with
two females." Huyhn said the deputies chose the location to
serve the warrants. Huyhn said they made an effort to make the
arrest on the bench warrants outside the presence of the jurors,
and "[a]s far as I know, they were –- I was understanding the
jurors are all in here at the time of the arrest."
At the conclusion of the testimony regarding the
service of the bench warrants, defense counsel moved for a
mistrial, arguing that there was no conclusive evidence that the
jury did not see the arrest. The defense alleged the "bigger
problem" and basis for the mistrial was because the prosecutor
took "affirmative steps" to have the warrants served, which
intimidated Morris and constituted "an attempt to influence the
outcome of this case . . . ."
The prosecutor disputed the allegation, asserting that
she told the sheriffs that Morris "must be made available for
trial; you can't just pluck him and hold him for the whole day."
The prosecutor argued that when the arrest for the warrants
occurred, the jury was in the courtroom listening to a witness,
and there was no evidence that "their attention was elsewhere."
The Circuit Court noted that Morris had appeared on the
first day of trial, September 20, 2017, knowing that he had
outstanding warrants. The Circuit Court also observed that
Morris appeared again that morning at 10:00 a.m., pursuant to the
Court's order that he return to testify. After Morris was booked
for the warrants, he again returned to the courthouse to testify.
Defense counsel interpreted the Circuit Court's
instruction that Morris be allowed to testify as an order that
Morris was "not to be touched until after he testified."
(Emphasis added). The Circuit Court corrected him, however,
clarifying that it was a request and not an order, and stating
that: "it would be up to the sheriff's office or HPD to dispense
with the warrants as they . . . were required to do." The
Circuit Court found it was speculative to say whether Morris had
been intimidated by the possibility of arrest. The Circuit Court
also placed its own observations regarding the service of the
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bench warrant on the record, as follows. The judge noted she had
a vantage point of the courtroom. Deputy Kim was in plain
clothes seated in the back of the courtroom, and the jurors could
not see the other sheriff in the vestibule. The Circuit Court
found that Morris was taken into custody outside of the presence
or hearing of the jurors, as the jurors were listening to cross-
examination, the arrest was done without incident, and anyone in
the hallway observing the arrest were not the jurors for this
case. The Circuit Court concluded that the trial had not been
tainted and denied the motion for mistrial.
On September 22, 2017, before the jury was instructed
and closing arguments, defense counsel informed the court that
Labatad told him that there was "a potential interaction" during
the break between Morris and two people believed to be relatives
of Peake, asking him why he was arrested the previous day.
Defense counsel asked that the jurors be polled individually with
the question he proposed: "Have you heard of or were you made
aware of anybody being arrested in the courthouse yesterday?"
This was done, and each juror answered in the negative. Although
defense counsel announced he was "satisfied regarding that
issue[,]" he renewed the objection for mistrial based on "the
related issue of the impropriety and the possible . . .
tampering" based on the "fact and circumstances leading to the
arrest itself." The motion was again denied.
With regard to jury instructions, both the State and
Labatad had submitted proposed jury instructions that included an
instruction on Mutual Affray, taken from Hawai#i Standard Jury
Instruction Criminal (HAWJIC) 9.21A, which reads:
If you find that the prosecution has proven the
offense of Assault in the Third Degree beyond a reasonable
doubt, then you must also determine whether the prosecution
has proven beyond a reasonable doubt that the fight or
scuffle was not entered into by mutual consent. This
determination must be unanimous and is to be indicated by
answering "Yes" or "No" on a special interrogatory which
will be provided to you.
While settling jury instructions, both the State and Labatad
withdrew their respective requests for the Mutual Affray
instruction. The jury was instructed on the elements of Assault
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Third, without Mutual Affray, and self-defense. The jury found
Labatad guilty of Assault Third. Labatad timely appealed.
Mutual Affray Instruction
Labatad first contends the Circuit Court plainly erred
by failing to instruct the jury on the mitigating defense of
Mutual Affray. Even though the proposed jury instruction was
withdrawn by both defense counsel and the prosecutor, Labatad
argues that there was evidence that Peake's injury was inflicted
in a fight entered into by "mutual consent" when Peake confronted
Labatad, hit her first from behind, and Labatad struck back in
self-defense. This contention has merit.
"When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read
and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading." State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d
974, 981 (2006) (quoting State v. Gonsalves, 108 Hawai#i 289,
292–93, 119 P.3d 597, 600–01 (2005)). Because it is the duty of
the trial court to properly instruct the jury, "once
instructional error is demonstrated, [the court] will vacate,
without regard to whether timely objection was made, if there is
a reasonable possibility that the error contributed to the
defendant's conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt." Id. at
337, 141 P.3d at 984 (footnote omitted).
"Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual consent,
in which case it is a petty misdemeanor." HRS § 707-712(2).
Mutual Affray "is not a lesser included offense of Assault in
the Third Degree," but is a "mitigating defense that reduces the
offense of Assault in the Third Degree to a petty misdemeanor."
State v. Kikuta, 125 Hawai#i 78, 95-96, 253 P.3d 639, 656-57
(2011) (citing HRS § 707-712(2)). The Kikuta Court held that a
trial court "must submit a mutual affray instruction to the jury
where there is any evidence in the record that the injury was
inflicted during the course of a fight or scuffle entered into
by mutual consent, as indicated in HAWJIC 9.21." Id. at 96, 253
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P.3d at 657 (emphasis added). "[C]onsent" includes implied
consent. Id. Consent may be "inferred from one's conduct" or
may be "implied from an individual's words, gestures, or
conduct." Id. (citations, internal quotation marks omitted).
The Kikuta Court determined from its review of the conflicting
testimonies of the defendant and the complainant, that "there
was some evidence adduced from which Complainant's consent to
affray may be implied" and thus, the Mutual Affray instruction
should have been given. Id.
In this case, the record does not indicate why defense
counsel and the prosecutor chose to withdraw their respective
proposed Mutual Affray instructions. However, their reasons are
inconsequential given that where there is any evidentiary support
for a defense, the Circuit Court must instruct the jury on it.
Kikuta, 125 Hawai#i at 96, 253 P.3d at 657. This is so even if
the defendant explicitly waives such an instruction. See State
v. Adviento, 132 Hawai#i 123, 139, 319 P.3d 1131, 1147 (2014)
(holding that a trial court must sua sponte instruct on the
mitigating defense of extreme mental or emotional disturbance in
a murder prosecution, where the defense was raised by the
evidence, even though neither side requested such instruction).
Here, there was evidence in the record supporting
Mutual Affray where Labatad testified that Peake confronted her,
hit her on the back of the head, and "came after her[.]" It is
undisputed that Peake initiated the encounter by approaching
Labatad and Morris to confront them for their talking during the
movie. Labatad's testimony that Peake hit her first, however,
meets the threshold "any evidence" standard that Peake could have
consented to a fight or scuffle, and thus, the Mutual Affray
instruction was required. Kikuta, 125 Hawai#i at 96, 253 P.3d at
657.
Without the Mutual Affray instruction and a special
interrogatory about mutual affray,6 the jury did not consider,
6
HAWJIC 9.21C, Assault Third by Mutual Affray Special
Interrogatory: HRS § 707-712(1)(a), provides as follows: "Did the
prosecution prove beyond a reasonable doubt that the fight or scuffle was not
(continued...)
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once they determined Labatad was guilty of Assault Third, whether
the parties may have mutually consented to engaging in a fight or
scuffle. "In a jury trial, the jury is the trier of fact and,
thus, is the sole judge of the credibility of the witnesses and
the weight of the evidence." State v. Jhun, 83 Hawai#i 472, 483,
927 P.2d 1355, 1366 (1996) (citation omitted). Given the
conflicting evidence, there is "a reasonable possibility that the
error" of omitting the Mutual Affray instruction and a special
interrogatory on Mutual Affray contributed to the jury's guilty
verdict on Assault Third as a misdemeanor, rather than as a petty
misdemeanor. Kikuta, 125 Hawai#i at 97, 253 P.3d at 658 (quoting
Nichols, 111 Hawai#i at 337, 141 P.3d at 984); see State v.
Henley, 136 Hawai#i 471, 479, 363 P.3d 319, 327 (2015) (holding
that "we cannot say that the omission of the mutual affray
instruction was harmless beyond a reasonable doubt, as it is
possible, on this record, that given a choice between convicting
Henley on misdemeanor Third Degree Assault and the mitigated
offense of petty misdemeanor assault, the jury could have
convicted Henley on the latter."). Accordingly, we cannot
conclude that the omission of the Mutual Affray instruction and
special interrogatory about Mutual Affray was harmless beyond a
reasonable doubt. Thus, the Circuit Court plainly erred by
failing to instruct the jury on the mitigating defense of Mutual
Affray.
Denial of motions for mistrial
Labatad contends that the Circuit Court "abused its
discretion in denying the motion for mistrial where [the
prosecutor] engaged in prosecutorial misconduct by causing the
bench warrants to be served on [Morris] at court in violation of
the de facto ruling of the court prohibiting such action."
Labatad argues the prosecutor breached her duty of candor to the
Circuit Court by being evasive and vague about when and how the
bench warrants would be issued when she "caused bench warrants to
be served" during trial. This contention is without merit.
6
(...continued)
entered into by mutual consent? (Your answer to this question must be
unanimous.) Yes _____ No _____"
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"The denial of a motion for mistrial is within the
sound discretion of the trial court and will not be upset absent
a clear abuse of discretion[,]" and the trial court "abuses its
discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant." State v. Lagat, 97
Hawai#i 492, 495, 40 P.3d 894, 897 (2002) (internal quotation
marks and citations omitted).
In this case, the record reflects that there was no
court order prohibiting the service of Morris's bench warrants
during trial. Nor does the record reflect that there was a "de
facto ruling" prohibiting the service of Morris's bench warrant
during trial, as Labatad claims. The record indicates that the
Circuit Court "made a request" to the sheriffs, that Morris be
allowed to testify, and that "[a]fter he testified, it would be
up to the sheriff's office or HPD to dispense with the warrants
as they . . . were required to do." Much of defense counsel's
argument below appears to be based on counsel's misimpression
that the Circuit Court had issued an order prohibiting the
warrants from being served until after Morris testified --
although the record shows no such order was issued. The Circuit
Court corrected Labatad's counsel more than once about this
mischaracterization of the court's action, clarifying that it had
communicated a "request" to the sheriffs, and this "request" was
not a court order.7 Because the factual premise for Labatad's
mistrial argument is not supported by the record, Labatad's
contention is without merit.
In addition to the "de facto" ruling argument that we
have rejected, Labatad also claims that "the basis for the
7
In its oral findings ruling on the mistrial, the Circuit Court
stated, "I made the request. It was not a court order." Later, during the
same hearing, in response to defense counsel again referring to the "request"
as an order, the court again corrected him:
[DEFENSE COUNSEL]: Well, I just wanted to make clear that
I'm not trying to second-guess what the Court's orders were
yesterday in terms of what was notified to the sheriffs.
THE COURT: I'm sorry. It wasn't an order. It was a
request.
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mistrial alleged herein is [the prosecutor's] misconduct," due to
her "willful violation of the court's de facto order and
deliberate lack of candor" regarding her role in the service of
the warrant. However, the Circuit Court did not make any
findings regarding the prosecutor's conduct in the service of the
bench warrants in this case; nor were there any findings
regarding any "lack of candor" by the prosecutor. Labatad did
not request the Circuit Court to make such findings below.
Labatad's arguments on appeal also refer to "prosecutorial
misconduct," but the record below shows that Labatad never argued
or referenced the term "prosecutorial misconduct." Labatad
generally alleged impropriety by the prosecutor, but did not
specifically make the "prosecutorial misconduct" argument to the
Circuit Court that she now raises on appeal. Thus, because
"prosecutorial misconduct" was not raised below, the Circuit
Court did not enter any findings or conclusions regarding
prosecutorial misconduct. We conclude that the record is
inadequate for appellate review of prosecutorial misconduct
because these specific arguments were not raised below, and are
waived. See State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940,
947 (2003) (legal issues and arguments not raised below are
deemed waived on appeal).
Even if we were to consider Labatad's prosecutorial
misconduct argument on its merits, the record here does not show
that Labatad was denied her right to a fair trial where Morris
testified, and Morris's arrest did not occur in the presence or
hearing of any jurors. "Prosecutorial misconduct warrants a new
trial or the setting aside of a guilty verdict only where the
actions of the prosecutor have caused prejudice to the
defendant's right to a fair trial." State v. Mara, 98 Hawai#i 1,
16, 41 P.3d 157, 172 (2002) (quoting State v. Clark, 83 Hawai#i
289, 304, 926 P.2d 194, 209 (1996)). Labatad argues that
"dismissal in this case should be with prejudice" and
reprosecution barred, under the standard set forth in State v.
Rogan, 91 Hawai#i 405, 423, 984 P.2d 1231, 1249 (1999) where "the
prosecutorial misconduct is so egregious that, from an objective
standpoint, it clearly denied a defendant his or her right to a
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fair trial." While Labatad did not cite any authority on the
issue of prosecutorial misconduct in the service of warrants
during trial, the Hawai#i Supreme Court has stated that the
government "may not, by its own conduct, render a material
witness unavailable to the defendant." State v. Bullen, 63 Haw.
27, 29, 620 P.2d 728, 730 (1980) (citing Washington v. Texas, 388
U.S. 14 (1967) (other citations omitted).8 In this case,
however, there are no factual findings establishing what the
State's conduct was in facilitating the service of the bench
warrants on Morris. The record here is insufficient to review
whether there was any prosecutorial misconduct that was "so
egregious" under Rogan, 91 Hawai#i at 423, 984 P.2d at 1249, to
warrant a dismissal with prejudice. Ultimately, Morris was not
rendered unavailable to Labatad's defense, because Morris
returned to the courthouse after the bench warrants were served,
and was able to testify. Cf. Bullen, 63 Haw. at 29, 640 P.2d at
730.
Under the specific circumstances of this case, we
conclude that the Circuit Court did not abuse its discretion in
determining a mistrial was not warranted, where the defendant's
ability to call the witness was not compromised.9 In its oral
ruling denying the motion for mistrial, the Circuit Court found
that Morris was taken into custody outside of the presence or
hearing of the jurors, the jurors were listening to cross-
examination at the time, the arrest was done without incident,
and anyone in the hallway who saw the arrest were not the jurors
8
In Bullen, the Hawai#i Supreme Court held that where the conduct
of the government rendered a government informant who was a material witness
for the defendant unavailable, the government was required to produce the
witness or risk dismissal of the indictment. 63 Haw. at 29, 620 P.3d at 730.
9
In affirming the denial of the mistrial in this case, however, we
do not necessarily condone what occurred, i.e., the service of a bench warrant
in the courthouse on a defense witness during a jury trial, that the
prosecution and the Circuit Court knew was likely to be executed during trial,
possibly in the courthouse. A court may want to consider an order prohibiting
any service of bench warrants of witnesses during trial in the courthouse, to
prevent disruption of a trial from occurring in the first instance and
eliminate the potential of a mistrial. Such a court order could be considered
pursuant to the circuit court's powers under HRS § 603-21.9(6) (2016) to issue
orders or "take such other steps as may be necessary . . . for the promotion
of justice in matters pending before them."
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in this case. The Circuit Court denied the motion for mistrial
stating:
I don't think we can speculate about whether or not
Mr. Morris was intimated [sic] by what was happening because
he knew about the outstanding warrants yesterday, yet he
showed up to court. He returned to court today, as ordered
by the Court. At your request, we –- I did order him to be
here at 10:00 A.M. The warrants have been taken care of,
and he is back at court. So I am unable, on the record and
in light of the credible and reliable evidence, to make a
finding that the process has been tainted in any way.
Morris testified as a defense witness. Labatad does not
challenge the Circuit Court's oral findings on appeal. On this
record, we cannot say that Labatad's right to a fair trial was
violated, and the Circuit Court did not abuse its discretion in
denying the motion for mistrial. See Lagat, 97 Hawai#i at 495,
40 P.3d at 897.
Self-Defense
In her final point of error, Labatad contends that the
State produced insufficient evidence to rebut her proof of self-
defense. This contention is without merit.
"[O]nce the issue of self-protection is raised, the
burden is on the prosecution to disprove the facts that have been
introduced or to prove facts negativing the defense and to do so
beyond a reasonable doubt." State v. Lubong, 77 Hawai#i 429,
431, 886 P.2d 766, 768 (App. 1994) (citations omitted). When
reviewing the sufficiency of evidence on appeal, "evidence
adduced in the trial court must be considered in the strongest
light for the prosecution . . . ." State v. Kalaola, 124 Hawai#i
43, 56, 237 P.3d 1109, 1122 (2010) (citations omitted). "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. (citations and
italics omitted). Substantial evidence is "credible evidence
which is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion." Id. at
49, 237 P.3d at 1115 (citations omitted).
Here, the only evidence establishing that Peake used
force against Labatad first, was Labatad's own testimony. Peake
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testified that Labatad punched her "with all her might" after
poking her in the collarbone. Daughter saw Labatad poke Peake
and shortly after saw Peake holding her cheek, saying she had
been punched. The jury's verdict entailed credibility
determinations, where Labatad and Peake gave opposing accounts of
who hit whom first. The credibility of witnesses and the weight
of the evidence is the province of the factfinder –- here, the
jury. See Jhun, 83 Hawai#i at 483, 927 P.2d at 1366. Testimony
from Peake and Daughter constituted sufficient, credible evidence
to enable a person of reasonable caution to reject Labatad's
self-defense claim. See Kalaola, 124 Hawai#i at 49, 237 P.3d at
1115.
Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Sentence, Notice of Entry, entered on December 11,
2017, by the Circuit Court of the First Circuit, is vacated and
remanded for a new trial consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, August 18, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alen M. Kaneshiro,
Attorney at Law /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Donn Fudo /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for Plaintiff-Appellee
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