State v. Tuua

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
29125
20-APR-2011
07:57 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

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

vs.

LOPETI LUI TUUA, Petitioner/Defendant-Appellant.

NO. 29125

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 07-1-0393(4))

APRIL 20, 2011

RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.,
AND CIRCUIT JUDGE NACINO, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY NAKAYAMA, J.

Lopeti Lui Tuua (“Tuua”) was charged with assaulting a

bouncer with a beer bottle. At trial, Tuua’s half brother

testified that he, rather than Tuua, assaulted the bouncer.

During closing argument, the deputy prosecuting attorney

commented that if the jury believed Tuua’s half brother, no one

would be convicted of assault. We hold that the deputy

prosecuting attorney’s comments were improper, and that they may
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

have affected Tuua’s conviction. We therefore vacate Tuua’s

judgment and conviction and remand the matter to the Circuit

Court of the Second Circuit (circuit court).1

I. BACKGROUND

A. Trial

This case arose from an incident in which David Brown

(“Brown”), a bouncer, was struck with a beer bottle during a

brawl at a bar. The pivotal issue at trial was who threw the

bottle at Brown. The prosecution presented the testimony of the

assaulted bouncer, Brown, another bouncer at the bar, Jason

Inglish (“Inglish”), and a bartender, Renie Hamayelian

(“Hamayelian”). All three testified that they were working on

the night of the incident. Brown and Inglish testified that Tuua

threw the bottle at Brown. Hamayelian testified that he and

another customer collected the bottles when the fight broke out

and Tuua was holding the only bottle they did not collect.

Hamayelian saw the bottle in Tuua’s hand before it broke, and he

saw the broken bottle nearby after it hit Brown, but did not see

Tuua throw it. The parties entered a stipulation into the record

that Officer Asbel Polanco would have testified that he took

Brown’s statement on the night of the incident and Brown told him

that Ikaika Kawai, a person Tuua was at the bar with, picked up a

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

2
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

bottle and hit Brown on the head with it. After the stipulation

was read into the record, the prosecution rested.

Tuua and his half brother, Brandon Carter (“Carter”),

testified that Carter threw the bottle that struck Brown. The

defense rested, and the circuit court instructed the jury that:
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.

Directly before closing arguments, the circuit court

warned the jury that:
The lawyers will now make their closing arguments.
What they say is not evidence and you are not bound [by] how
they interpret or remember the evidence. The only evidence
which you must consider in deliberations comes from the
witness’ testimony and from the exhibits which are in
evidence.

During the prosecutor’s closing argument, he asserted

that Carter was not a credible witness because he was “diving on

the sword for his older brother. He’s trying to take

responsibility.”

During the prosecution’s rebuttal argument, the

prosecutor made the following comments:
[Deputy Prosecuting Attorney (“DPA”)]: Now, let’s
look at the defense that the defendant is trying to throw at
you. At first glance it seems like Brandon’s testimony
seems very honorable. It seems like the honorable thing to
do. He’s basically diving 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 might wonder, why is that? Because a

3
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

person might think, 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. He
can admit to anything and he won’t be convicted.

Now, some of you may be -- or a person might think,
well, he admitted under oath that he threw the bottle. So
if we find Lopeti not guilty, you can go after the brother.

State v. Tuua, No. 29125 at 5 (App. Apr. 29, 2010) (mem.)

(emphasis added).

Defense counsel objected, and the circuit court

overruled the objection. The prosecutor continued:
[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 [sic] 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, I lied. And then what would happen? Lopeti
would have been found not guilty. Defendant would have been
found not guilty. Could have just said, I 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 bottom line in this case, ladies and gentlemen, is
that the right person who threw the beer bottle on March
13th, 2007 is in this courtroom and he’s sitting right here.
This is the right person. Don’t let [Carter] and [Tuua]’s
scheme confuse you or cause you to speculate about any other
possibilities, because it was this defendant who threw the

4
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

beer bottle.

(Emphasis added.)

Tuua was subsequently found guilty and convicted of

Assault in the Second Degree in violation of HRS § 707-711(1)(d)

(Supp. 2006). Tuua was sentenced to imprisonment for 90 days and

a five year term of probation.

B. The Intermediate Court of Appeals’ April 29, 2010
Memorandum Opinion

Tuua appealed to the Intermediate Court of Appeals (ICA)

raising three points of error: “(1) 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.” Tuua, mem. op. at 2.

With respect to the second point of error, the ICA

held that the prosecuting attorney’s comments were not improper.

Id. at 8. The ICA held that, when 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.” Id. The ICA did “not

see this argument as an attempt to inflame the jury . . . .” Id.

Tuua also asserted that “the DPA’s argument suggested

that Carter was lying and that Carter’s testimony was procured by

5
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Tuua.” Id. The ICA held that the “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.” Id. (citing State v. Cordeiro, 99 Hawai#i

390, 425, 56 P.3d 692, 727 (2002); State v. Faluci, 917 A.2d 978,

988 (Conn. 2007)). The ICA observed that “[t]here 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.” Id.

With respect to Tuua’s argument regarding the

impermissible suggestion of collusion, the ICA held that the

“DPA’s argument that Tuua and Carter had concocted a false story

was based on a fair inference from the evidence” because “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.” Id. at 9.

The ICA affirmed the circuit court’s January 11, 2008,

judgment. Id. at 10.

On September 29, 2010, this court accepted a timely

application for a writ of certiorari filed by petitioner-

defendant-appellant Tuua, requesting that this court review the

ICA’s May 20, 2010 judgment on appeal entered pursuant to its

6
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

April 29, 2010 Memorandum Opinion affirming the circuit court’s

January 11, 2008 Judgment of Conviction and Sentence. Oral

argument was held on November 4, 2010.

II. STANDARDS OF REVIEW

A. Application For Writ Of Certiorari

The acceptance or rejection of an application for writ

of certiorari is discretionary. HRS § 602-59(a) (Supp. 2009).

“In deciding whether to accept an application, this court reviews

the decisions of the ICA for (1) grave errors of law or of fact or

(2) obvious inconsistencies in the decision of the ICA with that

of the supreme court, federal decisions, or its own decisions and

whether the magnitude of such errors or inconsistencies dictate

the need for further appeal.” State v. Wheeler, 121 Hawai#i 383,

390, 219 P.3d 1170, 1177 (2009) (citing HRS § 602-59(b)).

B. Prosecutorial Misconduct

“Allegations of prosecutorial misconduct are reviewed

under the harmless beyond a reasonable doubt standard, which

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.’” State

v. Rogan, 91 Hawai#i 405, 412, 984 P.2d 1231, 1238 (1999) (block

quote formatting omitted) (quoting State v. Sawyer, 88 Hawai#i

325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)). “Factors to consider

7
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

are: (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.” Id.

III. DISCUSSION

A. The Deputy Prosecuting Attorney’s Comments Were
Improper.

Tuua asserts that the prosecutor’s comments constituted

prosecutorial misconduct because: 1) the prosecutor suggested

that Tuua procured Carter’s dishonesty without evidence in the

record to support that inference; 2) the deputy prosecuting

attorney made a “personal comment” and suggested his opinion; 3)

the prosecutor’s comments inflamed “the passions and prejudice” of

the jury; and 4) the prosecutor’s suggestion that no one will be

prosecuted for the crime was improper. We hold that the

prosecutor’s comments were improper because the prosecutor

commented on the consequences of the jury’s verdict and matters

not in evidence.2

This court evaluates claims of improper statements by

prosecutors by first determining whether the statements are

improper, and then determining whether the misconduct is harmless.

State v. Kiakona, 110 Hawai#i 450, 458, 134 P.3d 616, 624 (App.

2006) (citing State v. McGriff, 76 Hawai#i 148, 160, 871 P.2d 782,

2
Because we reach this conclusion, it is not necessary to address
Tuua’s remaining claims of impropriety.

8
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

794 (1994); State v. Lincoln, 3 Haw. App. 107, 125, 643 P.2d 807,

820 (1982)). 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. Clark, 83

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

Apilando, 79 Hawai#i 128, 141, 900 P.2d 135, 148 (1995)).

“Although a prosecutor has wide latitude in commenting on the

evidence during closing argument, it is not enough that a [sic]

his comments are based on testimony ‘in evidence’; his comments

must also be ‘legitimate.’” State v. Mainaaupo, 117 Hawai#i 235,

253, 178 P.3d 1, 19 (2008) (quoting Clark, 83 Hawai#i at 304, 926

P.2d at 209). “A prosecutor’s comments are legitimate when they

draw ‘reasonable’ inferences from the evidence.” Id. at 253-54,

178 P.3d at 19-20 (quoting State v. Iuli, 101 Hawai#i 196, 208, 65

P.3d 143, 155 (2003)). Finally, it is “generally recognized 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.” State v. Cordeiro, 99 Hawai#i 390,

424-25, 56 P.3d 692, 726-27 (2002) (block quote formatting

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

Under the foregoing standard, the prosecutor’s comments

were improper because the prosecutor commented on matters outside

the evidence adduced at trial. As noted above, prosecutors are

9
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

entitled to draw reasonable inferences from the evidence.

Mainaaupo, 117 Hawai#i at 253-54, 178 P.3d at 19-20; State v.

Carvalho, 106 Hawai#i 13, 18, 100 P.3d 607, 612 (App. 2004) (block

quote formatting omitted) (quoting Clark, 83 Hawai#i at 304-05,

926 P.2d at 209-10). In this case, the prosecutor went beyond the

record and discussed the consequences of the jury’s verdict. For

instance, the prosecutor commented that, in Carter’s hypothetical

future trial, every one of the prosecution’s witnesses in Tuua’s

trial would testify that Tuua threw the bottle. Drawing on this

hypothetical, the prosecutor argued that believing Carter would

result in the acquittal of both Tuua and Carter on the assault

charge. The prosecutor stated that the “most that you can get

[Carter] 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.” The prosecutor’s comments did not

draw legitimate inferences from the testimony adduced at trial and

were therefore improper.

In State v. Sanchez, the ICA confronted a similar

comment and held that the prosecutor’s statement was improper. 82

Hawai#i 517, 533, 923 P.2d 934, 950 (App. 1996). The prosecutor

stated to the jury:
Do not, do not reward their lies with an acquittal.
Please do not. That’s what you’re doing. You know what

10
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

happens after that, then the group gets together again and
they say, boy, it worked. We sure fooled that jury didn’t
we? No, they didn’t . . . .

Id. at 532 n.20, 923 P.2d at 949 n.20 (emphasis added).

The ICA held that the prosecutor’s comment was improper

because it “improperly ‘direct[ed] the jury from its duty to

decide the case on the evidence . . . by making predictions of the

consequences of the jury’s verdict.’” Id. at 533, 923 P.2d at 950

(emphasis added) (quoting 1 ABA Standards for Criminal Justice,

The Prosecution Function, Standard 3-5.8(d) (2d ed. 1986)). The

ICA held that by branding the jury members as “fools”

the argument undermined “the proposition that the prosecutor

should refrain from argument diverting the jury from concentrating

on the evidence.” Id.

Although the statement in Sanchez differs from the

statement in this case, the reasoning in Sanchez applies. In the

instant case, the prosecutor framed his argument by referring to

the consequences of failing to convict Tuua.

Before the ICA, the prosecution asserted that “the

prosecutor’s rebuttal comments on the strategy behind Carter’s

testimony were part of the overall closing argument evaluating the

credibility of the witnesses . . . .” The prosecution

characterized the deputy prosecuting attorney’s argument as

continuing to “theorize” why Carter would take the blame for the

11
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

incident. The prosecution analogized Hawai#i cases holding that a

prosecutor may argue the credibility of witnesses. (Citing

Carvalho, 106 Hawai#i at 17, 100 P.3d at 611 (holding that

prosecutor’s statement that “either you can believe Richard

Melcher about what happened or you can believe Melanie Yuson and

[the defendant]” was not improper.))3

This argument is unpersuasive because a plain reading of

the prosecutor’s rebuttal indicates that he went beyond attacking

Carter’s credibility based on the evidence adduced at trial. The

prosecution correctly observes that the deputy prosecuting

attorney argued a legitimate inference from the evidence that

Carter was “diving on the sword” for his brother Tuua and could

3
Before the ICA, the prosecution also asserted that State v.
Valdivia, 95 Hawai#i 465, 484, 24 P.3d 661, 680 (2001), supports concluding
that the prosecutor’s comment was not improper. In Valdivia, the prosecutor
made the following statement:

Ladies and gentlemen, these charges are not trumped up
because officers are lying or that this is some blue wall of
conduct, that they’re trying to get even for what this guy
did to some of their officers. Remember, the person he
almost killed was the person that was in that green car.
Maybe he should have been charged with attempted murder.

Id. at 483, 24 P.3d at 679 (emphasis added).

The ICA held that the prosecutor’s comment that “that Valdivia
should have been charged with attempted murder” was “flagrantly improper.”
Id. With respect to the “blue wall of conduct” comment, the ICA held that “it
was not an improper assertion of personal opinion regarding Valdivia’s
credibility.” Id. at 484, 24 P.3d at 680 (citing Clark, 83 Hawai#i at 304-06,
926 P.2d at 209-11). The statement in Valdivia differs from the statement in
this case. Additionally, the portion of Valdivia that the prosecution cites
to concerns whether a statement expresses the prosecutor’s personal opinion.
(Citing Valdivia, 95 Hawai#i at 484, 24 P.3d at 680.) In light of our
conclusion that the prosecutor’s comment improperly discusses matters not in
evidence, Valdivia is not persuasive.

12
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

not be prosecuted in the instant case. However, the prosecuting

attorney went beyond inferring that Carter was not credible from

evidence in the record by focusing on whether Carter could be

prosecuted in a subsequent proceeding. For instance, the deputy

prosecuting attorney explained his comments during a bench

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

(Emphasis added.)

Viewed in this light, the prosecuting attorney’s

comments about Carter’s potential trial and that the “most you can

get [Carter] for would be charging him for lying under oath” were

not based on the evidence in the record. Although the prosecutor

couched his argument as an attack on Carter’s credibility, the

prosecutor’s argument discussed the consequences of the jury’s

verdict. Therefore, the prosecutor’s comment was improper.

B. The Improper Comment Was Not Harmless.

Tuua asserts that the deputy prosecuting attorney’s

improper statement was not harmless beyond a reasonable doubt.

Before the ICA, the prosecution did not specifically argue that

the prosecutor’s error was harmless, but “noted that . . . the

trial court sufficiently instructed the jury that closing argument

13
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

was not evidence.” To the extent that the prosecution has

preserved and is arguing harmless error, this argument is

unpersuasive.

Hawai#i courts evaluate the following criteria in

assessing whether a prosecutor’s improper comments are harmless:

“(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.” Mainaaupo, 117 Hawai#i at 252, 178 P.3d

at 18 (internal quotation marks omitted) (quoting State v. Hauge,

103 Hawai#i 38, 47, 79 P.3d 131, 140 (2003)). An improper comment

warrants a new trial if “there is a reasonable possibility that

the error complained of might have contributed to the conviction.”

See Hauge, 103 Hawai#i at 47, 79 P.3d at 140 (internal quotation

marks and block quote formatting omitted) (quoting State v.

Pacheco, 96 Hawai#i 83, 93, 26 P.3d 572, 582 (2001)).

1. Nature of the conduct

As discussed above, the first factor weighs against

concluding that the deputy prosecuting attorney’s comment was

harmless because the prosecutor commented on the consequences of

the jury’s verdict and matters not in evidence. This court

evaluates the severity of the conduct in determining whether the

first factor favors holding that an improper statement was

harmless. See State v. Maluia, 107 Hawai#i 20, 27, 108 P.3d 974,

14
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

981 (2005). For instance, in Maluia, this court held that a

prosecutor’s question asking the witness to comment on the

veracity of other witnesses was harmless. Id. This court held

that:
the conduct was less egregious than that presented in
those cases where we vacated the defendants’ convictions and
remanded for new trials. See, e.g., State v. Wakisaka, 102
Hawai#i 504, 78 P.3d 317 (2003) (vacating and remanding
where the prosecution improperly commented on the
defendant’s failure to testify); State v. Pacheco, 96
Hawai#i 83, 95, 26 P.3d 572, 584 (2001) (vacating and
remanding where “the [prosecution’s] characterization of
[the defendant] as an ‘asshole’ strongly conveyed his
personal opinion and could only have been calculated to
inflame the passions of the jurors and to divert them, by
injecting an issue wholly unrelated to [the defendant’s]
guilt or innocence into their deliberations, from their duty
to decide the case on the evidence”); State v. Marsh, 68
Haw. 659, 728 P.2d 1301 (1986) (vacating and remanding where
the prosecutor, in closing, repeatedly stated her personal
belief that the defendant was guilty).

Id.

Although Maluia suggests that the prosecutor’s comment

in the instant case was not as egregious as some of the other

conduct this court has held non-prejudicial, the prosecuting

attorney’s conduct here was more egregious than the question posed

by the prosecutor in Maluia. The comment directed the jury’s

attention away from the evidence and to impermissible

considerations of the consequences of its verdict. Therefore, the

first factor weighs in favor of holding that the error was not

harmless.

15
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

2. Promptness of a curative instruction

The circuit court did not issue a curative instruction.

Although the circuit court twice instructed the jury that

arguments of counsel were not evidence, it overruled Tuua’s

objection and did not issue a curative instruction after the

improper statement. See Mainaaupo, 117 Hawai#i at 255, 178 P.3d

at 21 (holding that the circuit court’s failure to issue a

curative instruction regarding the prosecutor’s comment weighed in

favor of concluding that the comment was not harmless); State v.

Rogan, 91 Hawai#i 405, 415, 984 P.2d 1231, 1241 (1999) (“[I]t is

unlikely that the circuit court’s general instructions that were

delivered well after the inflammatory comments along with the

other general jury instructions could have negated the prejudicial

effect of the deputy prosecutor’s comments.”) (citing State v.

Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1303 (1986)); Marsh, 68

Haw. at 661, 728 P.2d at 1303 (holding that a prosecutor’s

comments were not harmless in part because “the court was not

requested to and did not issue a specific instruction concerning

the prosecutor’s closing comments”).

Before the ICA, the prosecution asserted that State v.

Carvalho indicates that the trial court “sufficiently instructed

the jury that closing argument was not evidence.” (Citing State

v. Carvalho, 106 Hawai#i 13, 18, 100 P.3d 607, 612 (App. 2004.))

16
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

In Carvalho, the trial court instructed the jury twice that

arguments and statements of counsel are not evidence. Carvalho,

106 Hawai#i at 19, 100 P.3d at 613. The prosecution observes that

in Carvalho, the ICA presumed the jury followed the court’s

instructions and stated that if “prophylactic was necessary in

this case, surely these instructions provided some good measure of

inoculation.” Id. (citing State v. Meyer, 99 Hawai#i 168, 172-73,

53 P.3d 307, 311-12 (2002)). Although the defendant claimed that

the prosecutor’s comments distorted its burden of proof, the ICA

stated that “the jury . . . was well instructed on ‘what [it] must

find in order to reach a certain verdict.’” Id. at 18, 100 P.3d

at 612 (quoting United States v. Vargas, 583 F.2d 380, 386 (7th

Cir. 1978)). Carvalho is distinguishable because jury

instructions regarding the prosecution’s burden of proof were

given in addition to instructions informing the jury that

arguments are not evidence. Id. at 18-19, 100 P.3d at 612-13.

Additionally, the prosecution has not pointed to Hawai#i case law

suggesting that a court’s generic instructions that arguments of

counsel are not evidence, issued prior to improper statements, can

cure misconduct in close cases involving the credibility of

witnesses. See infra at 18; Marsh, 68 Haw. at 661, 728 P.2d at

1302-03. Therefore, the circuit court’s failure to give a

curative instruction weighs against holding that the prosecutor’s

17
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

comment was harmless.

3. The strength or weakness of the evidence

In close cases involving the credibility of witnesses,

particularly where there are no disinterested witnesses or other

corroborating evidence, this court has been reluctant to hold

improper statements harmless. Compare Maluia, 107 Hawai#i at 27,

108 P.3d at 981 (noting that “the prosecutorial misconduct in the

instant case was harmless beyond a reasonable doubt” where “[t]he

evidence against the defendant included two eyewitness accounts

from witnesses unconnected to the defendant or the victim [and]

also showed that the defendant’s BAC was 0.131, raising additional

doubts as to the defendant’s credibility”), with Rogan, 91 Hawai#i

at 415, 984 P.2d at 1241 (holding that the evidence did not

outweigh the inflammatory effect of the prosecutor’s comments,

where the case “turned on the credibility of two witnesses” and

“[t]here were no independent eyewitnesses or conclusive forensic

evidence”).

In this case, the credibility of the witnesses was

pivotal. The critical issue at trial was who threw the bottle and

there was conflicting testimony in this regard. Because this was

a case involving the credibility of witnesses, each of whom

arguably had a potential interest or bias, it weighs against

holding that the improper statement was harmless.

18
 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

An evaluation of the three factors reveals that there is

a reasonable possibility that the prosecutor’s improper comment

might have affected the conviction because: 1) the prosecutor’s

improper comment discussed the consequences of the jury’s verdict

and matters not in evidence; 2) the trial court did not issue a

curative instruction; and 3) the strength of the evidence was not

overwhelming and the credibility of the witnesses’ versions of

events was the pivotal issue at trial.

IV. CONCLUSION

Based upon the foregoing analysis, we vacate the ICA’s

judgment on appeal, and remand to the circuit court for a new

trial.

Matthew S. Kohm for /s/ Mark E. Recktenwald
petitioner-defendant-
appellant /s/ Paula A. Nakayama

Renee Ishikawa Delizo, /s/ Simeon R. Acoba, Jr.
Deputy Prosecuting Attorney,
County of Maui, for /s/ James E. Duffy, Jr.
respondent-plaintiff-
appellee /s/ Edwin C. Nacino

19