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No. 29e46
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IN THE INTERMEDIATE coURT oF APPEALs §§
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0F THE sTATE 0F HAwAi‘I §§
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sTATE oF HAwArI, P1aintiff-Appe11ee, co
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LYLE SHAWN BENSON, Defendant~Appellant ca
APPEAL FROM THE CIRCUlT COURT OF THE SECOND CIRCUIT
(CRIMINAL NO. 07-l-O456(3))
SUMMARY DISPOSITION ORDER
(By: Fujise and Reifurth, JJ.; and
Nakamura, C.J., dissenting)
Defendant-Appellant Lyle Shawn Benson
(Benson) appeals
from the April l4, 2009 Judgment,
entered in the Circuit Court of
the Second Circuit (circuit court),W finding him guilty of
Assault Against a Law Enforcement Officer in the First Degree in
violation of Hawaii Revised Statutes (HRS) § 707-712.5 (Supp.
2QO9), and sentencing him to one year of imprisonment and five
years of probation.
On appeal, Benson contends that the circuit court erred
by (l) failing to give the jury a self-defense instruction, (2)
denying his motion in limine to introduce evidence of an
arresting officer's disciplinary record, (3) denying his motion
for a mistrial, (4) excluding certain other evidence, and (5)
overruling objections to improper comments by the prosecutor
during closing argument. Benson further contends that he was
deprived of the effective assistance of counsel in violation of
the SiXth Amendment to the U.S. Constitution and article I, § 14
of the Hawafi Constitution.
For the reasons discussed below, we agree that the
Prosecutor's comments in closing argument amounted to
impermissible bolstering and, hence, prosecutorial misconduct;
that the State's case hinged on the credibility of its witnesses;
The Honorable Joseph E. Cardoza presided.
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and that we cannot, therefore, conclude that the error was
harmless beyond a reasonable doubt. Consequently, we vacate the
judgment and remand the case to the circuit court.
I. PROSECUTORIAL MISCONDUCT IN THIS CASE REQUIRES THAT THE
JUDGMENT BE VACATED AND THE CASE REMANDED
During closing argument, to rebut defense counsel's
claim that Maui Police Department (MPD) officers lied during
their testimonies, the Prosecutor stated:
[Prosecutor]: Your common sense and reason you can
use. You know what's happening when things are going fast
like that. You know from what the officers themselves
testified to.
These officers, what they want you to believe, is four
officers got together and decided, you know, with their
careers they're going to make something up over one more
obnoxious defendant they have to deal with.
[Defense Counsel]: Your Honor, I'm going to object,
that's improper argument. with regard to their careers ~-
[Prosecutor]: No, he's putting in the credibility --
THE COURT: Part of it appears to be proper argument,
and part of inappropriate. So I'll sustain the objection.
And you may rephrase your argument.
[Prosecutor]: what he wants you to believe is that
these officers are lying, they're going to jeopardize their
career --
[Defense Counsel]: Your Honor, I'm going to object.
That's exactly ~~
THE COURT: The objection is overruled.
[Prosecutor]: They're going to jeopardize their career
over some guy they just met. Common sense and reason they
deal with obnoxious guys every day and they're going to
jeopardize their career on that defendant on that day. Four
separate officers. You believe this guy, you can't believe
this guy. »
The HawaFi Supreme Court has stated that "whenever a
defendant alleges prosecutorial misconduct, this court must
decide: (l) whether the conduct was improper; (2) if the conduct
was improper, whether the misconduct was harmless beyond a
reasonable doubt; and (3) if the misconduct was not harmless,
whether the misconduct was so egregious as to bar reprosecution."
State V. MEluia, 107 Hawafi 20, 26, 108 P.3d 974, 980 (2005).
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1. The Prosecutor's Remarks Were, On Balance,
Improper
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. Carvalho, 106
HawaiU.13, 18, 100 P.3d 607, 612 (App. 2004). Prosecutors,
however, must refrain from expressing their personal views as to
the credibility of witnesses. State v. Sanchez, 82 Hawafi 517,
534, 923 P.2d 934, 951 (App. l996); ABA STANDARDS FoR CRIMINAL JUSTICE
3-5.8 (3d ed. 1993); see United States v. Young, 470 U.S. 1, 18-
19 (1985) ("The prosecutor's vouching for the credibility of
witnesses . . . carries with it the imprimatur of the Government
and may induce the jury to trust the Government's judgment rather
than its own view of the evidence.").
v The reason for the rule is that "expressions of
personal opinion by the prosecutor are a form of unsworn,
unchecked testimony and tend to exploit the influence of the
prosecutor's office and undermine the objective detachment that
should separate a lawyer from the cause being argued." State v.
Marsh, 68 Haw. 659, 660-61, 728 P.2d 1301, 1302 (1986) (internal
quotation marks and brackets omitted) (citing ABA.SNmmmDsFOR
CR:MINAL JUsTIcE 3.89 cmt.) .
By expressing incredulity at the prospect of the police
officers giving false testimony, the Prosecutor's comments here
bolstered the officers' testimony. In State v. Suan, 121 HawaiH
169, 214 P.3d 1159 (App. 2009), this court held in a similar
situation that it was improper for the prosecutor to argue during`
closing argument that "these officers have integrity and
their testimony really is a testament to the fact that the system
does work because . . . they could have come in here, no reports,
told you anything, but they didn't[.]" Id. at 174, 214 P.3d at
1164 (internal quotation marks and brackets omitted). As in
Suan, the Prosecutor's comment on the credibility of the
officers' testimony here had no relation to any evidence
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presented to the jury and was, therefore, improper.
The State contends that the Prosecutor's comments were
not improper because "they were not expressions of personal
opinions." In support, the State relies extensively on the case
of State v. Nakoa, 72 Haw. 360, 817 P.2d 1060 (1991). Nakoa,
however, does not stand for the proposition for which the State
offers it.
In Nakoa, the court addressed the prosecutorial
misconduct test's first prong (whether the conduct was improper)
and noted that "[w]e have held that prosecutors are bound to
refrain from expressing their personal views as to . . . the
credibility of witnesses." 72 Haw. at 371, 817 P§2d at 1066.
Thereafter, the court addressed the test's second prong (whether,
although improper, the Prosecutor's comments were harmless beyond
a reasonable doubt), and concluded that, in sum, including the
fact that Nakoa's counsel had offered no objection at trial to
the prosecutor's comments, the prosecutor's comments were
harmless beyond a reasonable doubt. Id. Insofar as Nakoa helps
determine whether the Prosecutor's comments here were proper or
improper, however, it stands squarely for the proposition that
they were improper because they reflected the Prosecutor's
personal views as to the credibility of the witnesses.
lt is widely recognized that a prosecutor may not argue
that a witness is more credible because of his or her status as a
police officer. E.g., Suan, 121 Hawafi at 174-75, 214 P.3d at
1164-65. Whether police officers put their careers in jeopardy
if they testify falsely was not an issue in the instant trial,
and no evidence was introduced on the question. As a result,
such a reference is generally inappropriate as part of closing
argument. See United States v. Weatherspoon, 410 F.3d 1142, 1146
(9th Cir. 2005) (prosecutor's statement that police officer
witness had no reason to lie was improper); United StateS v.
Cornett, 232 F.3d 570, 575 (7th Cir. 2000) (prosecutor acted
improperly by stating that police officers "take an oath to
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follow the law" because the comment constituted vouching for the
witnesses' good faith); United States v. Gallardo-Trapero, 185
F.3d 307, 319 (5th Cir. 1999) (prosecutor's statement during
closing argument asking, "[d]o you think that agents for the
federal government and a prosecutor for the federal government,
for the United States . . ., are going to risk their career" by
committing perjury was improper); Davis v. State, 663 So. 2d
1379, 1382 (Fla. Dist. Ct. App. 1995) (prosecutor "asking the
jury to believe a police officer over an ordinary citizen because
'police officers place their careers in jeopardy by not telling
the truth[,]" is improper bolstering); State v. Staples, 623 A.2d
791, 793 (N.J. Super. Ct. App. Div. 1993) (reversal required when
prosecutor told jury that officer witness "would not put his
career and everything that comes with that on the line by coming
in here and testifying falsely[,]" and intimating that another
officer witness's pension benefits, accumulated over twelve
years, would be jeopardized); People v. Clark, 542 N.E.2d 138,
142 (Ill. App. Ct. 1989) (prosecutor's comments suggesting that
police officers would not give up their pensions and put their
families' security in jeopardy by perjuring themselves were
improper). §
The State is correct that the Prosecutor's comments did
not misstate the law, shift the burden of proof, or contrive to
stimulate racial prejudice. The State is incorrect in
suggesting, however, that we require multiple instances of
improper conduct in closing argument before we will find
misconduct, The number of improper conduct incidents informs our
analysis under the harmless error prong of the test, but it has
little bearing on our initial determination of propriety. See
Maluia, 107 HawaiH.at 24-25, 108 P.3d at 978-79 (single incident
of prosecutor asking defense witness to comment on prosecution
witnesses' veracity is improper); State v. Senteno, 69 Haw. 363,
366-67, 742 P.2d 369, 372 (1987) (single incident of improper
argument during closing was improper, but ultimately harmless);
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cf. Nakoa, 72 Haw. at 371, 817 P.2d at 1066 (single incident of
alleged misconduct was harmless beyond a reasonable doubt),
Although the comments in the instant case were not an
explicit statement of the Prosecutor's belief in the veracity of
the police officer witnesses, the Prosecutor nevertheless
attempted to persuade the jury that the officers' testimony
should be believed simply because they were police officers. In
addition, the argument made reference to matters outside the
record and, consequently, constituted impermissible bolstering of
the officers' testimony. As such, the Prosecutor's comments were
improper.` 8
2. The Prosecutor's Remarks Were Not Harmless Beyond
A Reasonable Doubt Because The State's Case Rested
Almost Exclusively On The Credibility Of The
Officer Witnesses
"[F]inding that the prosecutor's comments were improper
does not end the inquiry." Marsh, 68 Haw. at 661, 728 P.2d at
1302. Prosecutorial misconduct "may form the basis for setting
aside a jury verdict," but only when the prosecutor's actions
deprive the defendant of a fair and impartial trial, State v.
Churchill, 4 Haw. App. 276, 285, 664 P.2d 75'7, 763-64 (1983).
To determine if prosecutorial misconduct was harmless
beyond a reasonable doubt, we look at "the nature of the alleged
misconduct, the promptness or lack of a curative instruction, and
the strength or weakness of the evidence against defendant."
State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).
The State argues that, even if improper, the comments were
harmless beyond a reasonable doubt because of their isolated
nature, the weight of the evidence in support of a conviction,
and the circuit court's subsequent instruction to the jury.
a. Nature of alleged misconduct
The Prosecutor's improper conduct bolstered the police
officers' testimonies with reference to matters outside the
evidentiary record. As such, the Prosecutor implicitly stated
her personal opinion regarding the credibility of the MPD
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officers.
As noted above, a prosecutor may draw any reasonable
inference from the evidence presented in trial. Carvalho, 106
Hawai‘i at 18, 100 P.3d at 612. Here, although the Prosecutor's
comments regarding the credibility of the police officers were
stated in a general manner, because there was no evidence - nor
should there have been - regarding the officers' careers, it was
a comment based upon personal beliefs. See Suan, 121 HawaFi at
174-75, 214 P.3d at 1164-65 ("Although the Prosecutor did not
explicitly refer to herself, her statement nevertheless expressed
her personal view of the officers' credibility.").
Moreover, the prejudicial impact of the Prosecutor's
statements was exacerbated by the fact that the State's case
relied almost exclusively on the testimony of the police
officers. See Marsh, 68 Haw. at 661, 728 P.2d at 1302-03
(finding that the defendant was substantially prejudiced by the
prosecutor's statements during closing argument, in part, because
"[t]he jury had to decide whether to believe the victim or the
alibi witnesses"); cf. Nakoa, 72 Haw. at 371, 817 P.2d at 1066
(stating that, rather than personal statements, "[t]he
prosecutor's remarks in this case, when taken in context,
requested that the jurors rely on their own observations, common
sense, knowledge of human behavior, and experiences when judging
the credibility of the two officers"). Benson denied hitting MPD
Officer Michael Hale (the act constituting the assault for which
Benson was charged), while MPD officers testified to the
contrary. NThus, the jury's determination was predicated almost
entirely on believing the MPD officers, and not believing Benson.
b. Promptness or lack of a curative instruction
The circuit court did not provide, nor was it requested
to give, a post-closing curative instruction. Although the
record shows that the circuit court instructed the jury prior to
closing that the attorneys“ arguments were not evidence, such an
instruction was insufficient to cure the prejudicial impact of
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the Prosecutor's statement that the police officers were more
believable than Benson because they would not put their careers
in jeopardy for "one obnoxious guy."
The State argues that the circuit court's instruction
that attorneys' comments are not evidence cured any prejudice
caused by the Prosecutor's statement. The State cites to
Carvalho, 106 Hawafi at 17, 100 P.3d at 611 in support of this
point. Carvalho, however, does not support the proposition that
the instruction cures improper conduct. Rather, the conduct in
Carvalho was deemed to not be improper in the first place. Id.
In this case, however, we have already determined that the
conduct was improper.
Prior to closing argument, the circuit court offered,
among other instructions, the following to the jury:
Instruction Number 3. You must consider only the
evidence which has been presented to you in this case and
such inferences therefrom as may be justified by reason and
common sense.
Statements or remarks made by counsel are not
evidence. You should consider their arguments to you, but
you are not bound by their recollections or interpretations
of the evidence. `
Instruction Number 7. It is your exclusive right to
determine whether and to what extent a witness should be
believed and to give weight to his or her testimony
accordingly.
In evaluating the weight and credibility of a witness'
testimony you may consider the witness' appearance and
demeanor; . . . the probability or improbability of the
witness' testimony; . . . and all other circumstances
surrounding the witnesses and bearing upon his or her
credibility.
While allowing the Prosecutor a moment to prepare for
closing argument, the circuit court reiterated one of the
instructions:
Ladies and gentlemen, while [the Prosecutor] is
setting up, I would ask that during the closing arguments,
the parties' statements and remarks by counsel, you should
consider their arguments to you, but you are not bound by
their recollections or interpretations of the evidence.
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The circuit court's instructions were provided before
the Prosecutor made her closing remarks, were not addressed
specifically to those remarks, and did not clearly direct the
jury to disregard the specific remarks regarding the likelihood
of the officers' willingness to "jeopardize their career[s]" over
"one more obnoxious defendant."
c. Strength or weakness of the evidence
As discussed above, the State's case relied on the
testimony of the MPD officers, each of whom had a slightly
different account of what exactly happened during the
altercation. Benson, on the other hand, denied hitting Officer
Hale and had an entirely different version of the altercation.
Thus, the State's case relied on the very officers that the
Prosecutor intimated were unlikely to lie because to do so would
jeopardize their careers,
Moreover, when faced with similar factual scenarios,
many jurisdictions have held that such comments deprive a
defendant of his or her right to a fair trial. See People v.
Gorosteata, 870 N.E.2d 936 (lll. App. Ct. 2007); Williams v.
State 747 So.2d 474, 475 (Fla. Dist. Ct. App. 1999). Perhaps the
most analogous case is Davis, 663 So.2d 1379.
In Davis, similar to this case, the prosecutor stated,
"[t]he Judge is also going to tell you that you have the right to
determine or to evaluate somebody's testimony by what they have
to gain from it. Let's think about that right now. What does
[sic] Officer Hadden and Officer Kahir have to gain by putting
their careers in jeopardy, taking the stand and perjuring
themselves?" Id. at 1380 (emphasis omitted). Defense counsel
then objected and moved for a mistrial, which the trial court
denied. Id.
In discussing the impropriety of the prosecutor's
remarks the court stated:
The essence of the impropriety is that the state is asking
the jury to believe a police officer over an ordinary
citizen because police officers place their careers in
jeopardy by not telling the truth. The credibility of police
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officer witnesses cannot be bolstered by arguing that they
would put their careers in jeopardy by lying.
Id. at 1382. The court in Davis then held that the improper
comment was not harmless beyond a reasonable doubt. Id.; see
Gorosteata, 870 N.E.2d 936; Williams, 747 So.2d at 475.
d. On balance, the prosecutor's comments are not
harmless beyond a reasonable doubt.
Ultimately, in determining whether the Prosecutor's
comments were harmless beyond a reasonable doubt, we find the
context of this case to be most similar to that of Marsh, 68 Haw.
659, 728 P.2d 1301. In Marsh, as here:
The pivotal issue was the credibility of the witnesses. The
jury had to decide whether to believe the victim or the
alibi witnesses. we cannot conclude beyond a reasonable
doubt that the prosecutor's remarks had little likelihood of
influencing this critical choice.
we cannot accept the State's argument that the
prejudicial impact of the remarks was rendered harmless by
the trial court's instructions to the jury. The effect of
the prosecutor's prejudicial conduct here overcomes the
presumption that the court's instructions to the jury
rendered it harmless. The trial court instructed the jurors
several times that the arguments of counsel are not
evidence. However, the court was not requested to and did
not issue a specific instruction concerning the prosecutor's
closing comments.
Id. at 661, 728 P.2d at 1302-03 (citations omitted). Here, too,
the pivotal issue was the credibility of the witnesses, and the
court instructed the jurors several times that the arguments of
counsel were not evidence, but did not issue a specific
instruction concerning the Prosecutor's closing comments, As a
result, we cannot conclude that the Prosecutor's comments were
harmless beyond a reasonable doubt.
3. The Prosecutor's Conduct Does Not Bar Re-
prosecution
Benson does not argue that the Prosecutor's comments
were so egregious that they should bar subsequent prosecution;
nor do we conclude that they do.
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I I . CONCLUS ION
None of the other identified points of error are
meritorious.
As Benson's right to a fair trial was violated by
the Prosecutor's statements during closing argument, however, his
conviction and the April 14, 2009 Judgment must be vacated and
the case remanded for a new trial.
DATED :
On the briefs:
Karen T. Nakasone,
Deputy Public Defender,
for Defendant-Appellant.
Pamela I. Lundquist,
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee.
ll
H@noluiu, Hawai‘i, June 30, 2010.
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Associate Judg
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Associate Judge