State v. TUUA

NOT FOR PU"BLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29l25

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAl‘l

STATE oF HAWAI‘I, Plainr;iff-Appellee, v.
LOPETI LUI TUUA, Defendant-Appellant

769 =l. HV 63 Hd¥ BIBZ

APPEAL FROM THE CIRCUlT COURT OF THE SECOND CIRCUIT
(CR. NO. 07-l-O393(4))

MEMORANDUM @PINION'
(By: Nakamura, C.J., Fujise and Leonard, JJ.)

Defendant-Appellant Lopeti Lui Tuua (Tuua) appeals from
the January ll, 2008 judgment of the Circuit Court of the Second
Circuit (circuit court),1 convicting Tuua of Assault in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)

§ 707-711(1)(@1) (supp. 2'006).
I.

On July 5, 2007, Tuua was charged with Assault in the
Second Degree} stemming from an incident that occurred on
March 13, 2007, in which a bouncer was struck with a beer bottle
during a brawl at the bar.

At Tuua's jury trial, the State offered the testimony
of the assaulted bouncer, David Brown (Brown), another bouncer,
Jason Inglish (Inglish), and bartender, Renie Hamaleyian
(Hamaleyian), who were all working at the bar on the evening of
March 13, 2007. Brown and Inglish testified that Tuua was the
individual who threw the bottle at Brown.

that he collected all the glasses and bottles, except for a

Hamaleyian testified

bottle held by Tuua, and while he did not see Tuua do anything
with the bottle, he did see Brown holding his head, the bottle

broken on the ground, and Tuua no longer holding the bottle.

1 The Honorable Richard T. Bissen, Jr. presided.

GR§§"`H.A

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After the State rested its case, the defense offered
the testimony of Tuua and Tuua's half brother, Brandon Carter
(Carter), both of whom testified that Carter was the individual
who threw the bottle that struck Brown.

After the defense rested its case, instructions were
settled, given, and read to the jury, and both parties proceeded
with closing arguments. Following the reading of final
instructions, the jury deliberated and found Tuua guilty as
charged.

On January ll, 2008, Tuua was sentenced to a five-year
term of probation with special conditions including imprisonment
for ninety days and the judgment of conviction and probation
sentence was entered.

On January 22, 2008, Tuua filed motions to withdraw and
to substitute new counsel and to extend the time to file his
notice of appeal for thirty days, which were both granted. 0n
April 24, 2008, Tuua filed a second motion to extend the time to
file his notice of appeal until April 30, 2008, which was
granted. On April 25, 2008, Tuua filed his notice of appeal.
Following this court's January 23, 2009 order to temporarily
remand the case for appointment of new counsel due to Tuua's
counsel's failure to file the statement of jurisdiction and
opening brief, the circuit court again appointed new counsel for
Tuua.

II.

On appeal, Tuua claims (l) prior counsel's failure to
timely file a notice of appeal constituted ineffective assistance
of counsel, (2) the deputy prosecuting attorney (DPA) committed
prosecutorial misconduct during rebuttal argument, and (3)

instructions regarding lesser included offenses should have been

given sua sponte.

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III.

A. Ineffective Assistance of C0unse1

Tuua claims prior appellate counsel's failure to timely
file a notice of appeal constituted ineffective assistance of
counsel, and requests that prior appellate counsel's ineffective
assistance not bar his right to appeal.

"The right to an appeal is strictly statutory." §;a;§
v. Ontiveros, 82 HawaiH_446, 449, 923 P.2d 388, 391 (l996). As
this is a criminal matter, HRS § 641-11 (Supp. 2009) authorizes
Tuua's appeal from the January 1l, 2008 judgment. However, Tuua
did not file his April 25, 2008 notice of appeal within thirty
days after entry of the January ll, 2008 judgment, as HawaiH_
Rules of Appellate Procedure (HRAP) Rule 4(b)(1) requires.
Therefore, Tuua's appeal is not timely.

Nevertheless, "[i]n criminal cases, [the HawaiU_
Supreme Court has] made exceptions to the requirement that
notices of appeal be timely filed." State v. Irvine, 88 HawaiU_
404, 407, 967 P.2d 236, 239 (l998). The recognized exceptions
include circumstances where "defense counsel has inexcusably or
ineffectively failed to pursue a defendant's appeal from a

criminal conviction in the first instance[.]" Id.

When reviewing a claim of ineffective assistance of
counsel, [the appellate court] looks at whether defense
counsel's assistance was within the range of competence
demanded of attorneys in criminal cases, The defendant has
the burden of establishing ineffective assistance of counsel
and must meet the following two-part tests l) that there
were specific errors or omissions reflecting counsel's lack
of skill, judgment, or diligence; and 2) that such errors or
omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. To satisfy
this second prong, the defendant needs to show a possible
impairment, rather than a probable impairment, of a
potentially meritorious defense. A defendant need not prove
actual prejudice. v

State V. WakiSaka, lO2 HaWaFi 504, 513-l4, 78 P.3d 3l7, 326-27

(2003) (internal quotation marks, citations, and footnote

omitted).

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Tuua's prior appellate counsel, Steven Booth Songstad
(Songstad)2 explained to the circuit court that his staff
attempted to submit the notice of appeal, but because neither the
filing fee nor documentation showing Tuua was excused from
tendering the filing fee was tendered, the notice of appeal was
not accepted for filing. Songstad explained that as his staff
did not have access to the order appointing him as counsel and he
was out of state prior to these events and did not return to
HawaFi until April 14, 2008, he sought a second extension of
time until April 30, 2008 to file the notice of appeal. Songstad
did not explain why he could not have made other arrangements to
file Tuua's notice of appeal before his return to HawaFi.

Moreover, although Songstad sought and received a
second extension of time from the circuit court, that extension
was not authorized. HRAP Rule 4(b)(5) allows the trial court to
"extend the time for filing a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise
prescribed by this subdivision (b)."

Thus, Tuua's failure to assert a timely appeal from the

January 11, 2008 judgment appears to be the result of the

ineffective assistance of Tuua's prior appellate counsel,

Songstad. Under such circumstances, Tuua's failure to file a
timely appeal does not preclude him from asserting an appeal from
the January 11, 2008 judgment. See State v. Solomon, 107 Hawafi
117, 125-26 n.4, 111 P.3d 12, 20-21 n.4 (2005).

B. Prosecutorial Misconduct

Tuua next claims prosecutorial misconduct occurred in

the prosecution's closing rebuttal argument.

It is established that arguments of counsel which
misstate the law are subject to objection and to correction
by the court. Improper statements by [the State] may serve
as grounds for vacating a judgment of conviction and
remanding the case for a new trial.

2 we note that by order entered January 14, 2010, the HawaFi Supreme
Court suspended Songstad's license to practice law, effective "immediately."

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State v. EsDiritu,

(2008)

(internal quotation marks,

In order to determine whether reversal is required
under [Hawaf Rules of Penal Procedure] Rule 52(a) because
of improper remarks by a prosecutor which could affect a
defendant's right to a fair trial, we apply the harmless
beyond a reasonable doubt standard of review. This standard
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.

ll7 HaWafi l27, 140-4l, l76 P.3d 885, 898-99

original brackets, citations,

and footnotes omitted).

the DPA’S

Tuua's challenge is based on the following portion of

closing rebuttal argument:

defense that the

At first glance it

very honorable. It
He's basically diving

[DPA]: Now, let's look at the
defendant is trying to throw at you.
seems like Brandon's testimony seems
seems like the honorable thing to do.
on the sword for his brother, saying it was me. I'm
responsible. I'm the one that threw the beer bottle. But
in reality it's really not that honorable a thing to do.
But actually what it is is a desperate attempt to get his
brother off of these charges.

Now, a person
person might think,

might wonder, why is that? Because a
well, he's admitting to a crime, so he
must be telling the truth. But is he really? Because you
think about it, the only person on trial today is this
defendant, Lopeti Tuua. Brandon Carter is not on trial.
can admit to anything and he won‘t be convicted.

H€

Now, some of you may be -- or a person might think,
we11, he admitted under oath that he threw the bottle. So
if we find Lopeti not guilty, you can go after the brother.
[Defense Counsel]: Excuse me, your Honor, I'm going to
object at this time. Can we approach?

The Court: Approach.

(The following was held at the bench out of the
hearing of the jury.)
The Court: Counsel.

I believe that counsel
He's making

[Defense Counsel]: Your Honor,
at this point is instructing the jury on law.
himself a witness. He's instructing them in, quite in my
opinion, not an appropriate instruction on the law. I don't
think that it's fair for this prosecutor to tell the jury
that the State can not, in fact, prosecute Brandon Carter
when certainly could.

So I think --

The Court: He hasn't finished what he was going to

say. I don't know if he was going to say that.

What's your argument?

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[DPA]: It's a strategy on the defense that they're
going to basically, if they find Lopeti not guilty, you
know, a person might think you could go after Brandon, but
then, of course, all the State witnesses could be used by
the defense to say, well, hell, it was Lopeti that threw the
bottle.

The Court: Yeah, there's nothing wrong with that
argument. It's not an argument of law. That's not an
argument of law.

[Defense Counse1]: It's improper law. Not only is it
an argument of law, it's not an appropriate statement of
what the law is.

The Court: The only law that the jury is going to get
is what I give them. I'm not instructing them on this law.

[Defense Counsel]: Neither can [the prosecutor].
He's telling them that Brandon Carter can not be prosecuted.

The Court: He's explaining why that is. He's
explaining why that is because the witnesses have testified
under oath in this case would be the same witnesses calls.

[Defense Counsel]: Additionally, I don't think it's
proper argument for the State to comment on the strategy of
the defense, because there's no strategy that didn't happen
at trial already.

I mean, you know, considering this is supposed to be
based on fairness, I can't see how possibly it can be fair
for the State to argue that the government is without
recourse to this witness if he comes into court under oath
and says that he committed the crime that somehow they can
not prosecute him. That's not appropriate.

[DPA]: I'm not saying that.

The Court: That's not what he said. In fact, he
hadn't finished. I asked him what he was going to finish
saying. I don't think that's appropriate at all. Objection
overruled.

Five minutes remaining.
(The following was held in open court.)

[DPA]: Going back to the strategy of the defense, if
you found the defendant not guilty, a person might think,
well, you can go after Brandon Carter because he admitted to
it.

Think about it. What would the defense attorney of
Brandon Carter do? He'd call every one of the State
witnesses. He'd call Dave Brown. He'd call Renie
Hamaleyian and he'd call Jason Inglish. Who threw the
bottle? Each of them would say it's Lopeti. Each one of
them.

Brandon Carter could get up on the stand and all he'd

have to say is, 1 lied. And then what would happen? Lopeti
would have been found not guilty. Defendant would have been

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found not guilty. Could have just said, 1 lied under oath.
So what?

The most that you can get him for would be charging
him for lying under oath. That would be it and that's the
strategy, and that's why you can't really give any
credibility to Brandon Carter coming in here today and
saying, hey, it was me. I threw the bottle. I kind of
threw it sideways, and it kind of glanced off Dave's head
and hit the wall and smashed.

Come on, ladies and gentlemen, it's not credible.
It's not believable. What it is is a desperate attempt to
get his brother off. That's all it is.

The analysis of a claim of prosecutorial misconduct
first requires a determination of whether the conduct of the
prosecutor was improper. State v. Maluia, 107 Hawafi 20, 26,
108 P.3d 974, 980 (2005). "It is well established that
'[p]rosecutors are bound to refrain from expressing their
personal views as to a defendant's guilt or credibility of
witnesses.'" State v. Suan, 121 HawaiI 169, 174-75, 214 P.3d
1159, 1164-65 (App. 2009) (quoting State v. Sanchez, 82 HawaiT_
517, 534, 923 P.2d 934, 951 (App. 1996)) (emphasis added).
However, generally speaking, prosecutors are afforded wide
latitude when they comment on evidence during closing argument,
State v. Mainaaupo, 117 HawaiH.235, 253, 178 P.3d 1, 19 (2008),
and "may comment on the evidence and the credibility of
witness[es] and, in the process,[] belittle and point to the
improbability and untruthfulness of specific testimony." §;a;e
V. COrdeiro, 99 HaWaiT.390, 425, 56 P.3d 692, 727 (2002)
(emphasis omitted).

Tuua argues the prosecution's rebuttal was improper
because it was not based upon evidence or legitimate inferences
from the evidentiary record; was meant to inflame the passions of
the jury; was based on additional or personal information not
before the jury; and was made when the defense would have no
opportunity to respond.

Our review of the record reveals that the DPA's
argument asked the jury to carefully examine the notion that

Carter's testimony, when he took responsibility for the assault,

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was credible because it appeared to be "the honorable thing to do

diving on the sword for his brother," Tuua. The DPA argued
that this "desperate attempt to get his brother off" was not so
honorable because Carter "won't be convicted" in Tuua's trial.
That was so, argued the DPA, because the other witnesses had
presented testimony during Tuua's trial that Carter had not
committed the offense. As the circuit court observed, "He's
explaining why [Carter would not be prosecuted]. He's explaining
why that is because the witnesses have testified under oath in
this case would be the same witnesses call[ed]" in a subsequent
prosecution of Carter. The DPA's argument that Carter could be
charged "at most" with lying under oath was in response to
defense counsel's complaint to the circuit court that the DPA had
argued Carter could not be prosecuted.

Taken as a whole, the DPA's argument was not an
invitation to consider matters outside the record, nor did it
state or imply that the DPA had special knowledge that the jury
should rely upon. Rather, it was based on the evidence presented
to the jury, that there were witnesses that testified that Tuua
committed the assault, We do not see this argument as an attempt
to inflame the jury and we conclude the DPA's argument was
proper. As the DPA's argument was proper, it is of no
consequence that it was made during rebuttal.

Tuua also argues that the DPA's argument suggested that
Carter was lying and that Carter's testimony was procured by
Tuua. As to the former, the prosecution is entitled to argue
that a witness is lying if the argument is based on the possible
motivations of the witness and not the personal opinion of the
prosecutor. Cordeiro, 99 Hawafi at 425, 56 P.3d at 727; §;a;§7
v. Faluci, 917 A.2d 978, 988 (Conn. 2007). There was no
statement of the DPA's personal opinion and the DPA's argument
was directed towards the possible motivation behind Carter's
testimony, whether his testimony was altruistic or actually

without consequences.

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As to the latter claim, the testimony of Tuua and
Carter conflicted with that of the State's witnesses who
identified Tuua as the person who threw the bottle at Brown. The
DPA's argument that Tuua and Carter had concocted a false story
was based on a fair inference from the evidence.

We conclude that the DPA's argument was proper.

C. Lesser Inc1uded Instructions

Tuua claims the jury instructions were incomplete and
defective because they lacked a lesser included offense
instruction and the circuit court should have, sua sponte, given
this instruction.

In a criminal trial, an "accused is entitled to an
instruction on every defense supported by the evidence, no matter

how inconclusive the evidence may be, provided that evidence

would support consideration of that issue by the jury." State v.

MCMillen, 83 HaWafi 264, 265, 925 P.2d 1088, 1089 (l996). Here,
both parties objected to instructing the jury on both forms of
assault in the third degree--with a negligent state of mind or
without a dangerous instrument--and objected to the instruction
regarding mutual affray. Tuua specifically objected on the
grounds that it would be confusing to the jury in light of his
defense that he did not throw the bottle at Inglish. The circuit
court specifically considered all of these instructions and
decided that they were not supported by the evidence presented.
Nevertheless, we need not reach the issue as Tuua was
convicted of the charged offense of Assault in the Second'Degree.
See State v. Haanio, 94 HawaFi 405, 415-16, 16 P.3d 246, 256-57
(2001) ("Such error, however, is harmless when the jury convicts

the defendant of the charged offense or of an included offense

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greater than the included offense erroneously omitted from the
instructions.").
IIl.
Accordingly, the judgment entered by the Circuit Court
of the Second Circuit on January 11, 2008, in this case is

affirmed.

DATED= Honolulu, Hawai‘i, April 29, 2010,

On the briefs:

‘€¢f%é;,,w~
Matthew S. Kohm, éfz¢%9 '

for Defendant-Appellant. Chief Judge

Pamela I. Lundquist, §§ E '4:Z;£¢/§ §’~

§ Deputy Prosecuting Attorney,

County of Maui, Associate Judge
for Plaintiff-Appellee.

lO