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Electronically Filed
Supreme Court
SCWC-12-0000109
22-DEC-2017
07:59 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---O0O---
________________________________________________________________
STATE OF HAWAII,
Respondent/Plaintiff-Appellee.
vs.
PETER DAVID,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-12-0000109
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000109; CR. NO. 11-1-0050)
DECEMBER 22, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY WILSON, J.
I. INTRODUCTION
Peter David (David) was charged with murder in the
second degree of Santhony Albert (Albert) and assault in the
second degree of Torokas Kikku (Kikku). At trial before the
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Circuit Court of the First Circuit (circuit court),1 David
claimed that he acted in self-defense. The jury found him
guilty of the lesser included offenses of manslaughter and
assault in the third degree.
We consider only one issue on certiorari review:
whether the Intermediate Court of Appeals (ICA) gravely erred in
holding that the trial court did not abuse its discretion by
allowing the State of Hawaiʻi to present testimony in rebuttal
that went beyond the limited scope permitted by the trial court
and introduced evidence of David’s uncooperative behavior with
the police.2
We hold that the State’s rebuttal testimony was
improper because it exceeded the limited scope of testimony
permitted by the court, and the introduction of the improper
rebuttal testimony was not harmless error. Accordingly, we
vacate the ICA’s judgment on appeal and the circuit court’s
judgment of conviction and sentence, and remand for a new trial
on both offenses.
1
The Honorable Randal K.O. Lee presided.
2
We do not reach David’s second issue, whether the ICA gravely
erred in remanding David’s case for resentencing rather than for a new trial
given the misconduct of the prosecutor during sentencing, because we hold
that the first error already necessitates remand for a new trial. Likewise,
we also decline to analyze the alleged prosecutorial misconduct during the
State’s closing argument for plain error as requested in David’s application
for certiorari.
2
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II. BACKGROUND
The undisputed evidence established that on the night
of January 1, 2011, David and his cousin, Albert, were involved
in a fight outside an apartment on Awanei Street in Waipahu that
ended with David fatally stabbing Albert. After David stabbed
Albert, Albert’s aunt, Torokas Kikku (Kikku), confronted David.
Kikku sustained minor injuries as a result of the confrontation.
The primary disputed issues at trial were whether David or
Albert was the aggressor, and whether David acted in self-
defense.
A. Trial Court Proceedings
On January 12, 2011, the State filed a complaint in
the circuit court charging David with murder in the second
degree of Albert, in violation of Hawaiʻi Revised Statutes (HRS)
§§ 707-701.53 and 706-656.4 The State also charged David with
3
HRS § 707-701.5 (1993) provides, in relevant part:
(1) . . . a person commits the offense of
murder in the second degree if the person
intentionally or knowingly causes the death of
another person.
(2) Murder in the second degree is a felony for
which the defendant shall be sentenced to
imprisonment as provided in section 706-656.
4
HRS § 706-656(2) (Supp. 2010) provides, in relevant part: “. . .
persons convicted of second degree murder and attempted second degree murder
shall be sentenced to life imprisonment with possibility of parole.”
3
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assault in the second degree of Kikku, in violation of HRS §
707-711(1).5 David’s jury trial began on September 26, 2011.
1. The State’s Case-in-Chief
The State called eight witnesses in its case-in-chief,
including Kikku. Kikku described David as the aggressor in the
confrontation between David and Albert. According to Kikku, she
attended a party in Kalihi on January 1, 2011 with her husband
Erick Sam (Sam), at which both Albert and David were present.
Kikku testified that she did not drink, but the men (including
David, Sam, and Albert) were drinking beer and vodka. After an
argument broke out at the party, Albert, Kikku, Sam, and a few
others left the Kalihi house in Albert’s car and went to Kikku’s
Awanei Street apartment in Waipahu. Kikku testified that before
they left Kalihi, David told Albert to give him the beer in
Albert’s car; in response, Albert offered David one beer. David
5
HRS § 707-711(1) (Supp. 2010) provides, in relevant parts:
(1) A person commits the offense of assault in
the second degree if:
(a) The person intentionally or knowingly
causes substantial bodily injury to
another;
(b) The person recklessly causes serious or
substantial bodily injury to another;
. . . .
(d) The person intentionally or knowingly causes bodily
injury to another with a dangerous instrument . . . .
4
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rejected Albert’s offer and demanded all of the beer. Kikku
testified that after Albert offered David the one beer, Kikku,
Sam, and Albert departed for the Awanei Street apartment. At
around 8:00 p.m., Kikku, Sam, Albert, and the others in Albert’s
car arrived at the Awanei Street apartment. The men started
drinking, and about thirty minutes later, David arrived. Kikku
testified that she did not invite David into the apartment, but
told Sam that David was there. Sam went outside and told David
not to come in, but David entered anyway.
Once inside the apartment, David began drinking beer
with Albert and Sam. Some time afterwards, Kikku heard the
police come to her apartment and knock on the door.6 Kikku
testified that while the police were at the door on the lanai,
David and Albert were in the parking lot downstairs. Kikku did
not know whether the police talked to David and Albert, but
after the police left, David and Albert came back upstairs.
When David and Albert came back into the apartment,
Kikku noticed a scratch on David’s nose that was not bleeding
but looked “fresh.” In regard to the scratch on David’s nose,
David told Albert “how come you do this to me, no man can do
this to me,” and he looked angry. Immediately after this
6
Kikku would later clarify that the police were called to the
apartment by a neighbor.
5
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exchange, David went outside and told Albert to go with him.
Kikku held Albert’s hand to stop him from going downstairs, and
told him not to go, but Albert followed David outside. Within
the next ten seconds, Kikku followed Albert out of her apartment
where she went outside and saw David chase and hit Albert in the
back of the head. Kikku did not know whether David had anything
in his hand when she saw him hit Albert.
Kikku followed David and Albert, and after turning a
corner she saw Albert bending over with his torso parallel to
the ground. Kikku went over to Albert to help him back to her
apartment. She did not realize he was bleeding or hurt at the
time.
Kikku tried to walk Albert toward the apartment, but
Albert had trouble walking. Kikku then saw David return with a
rock in each hand, raised slightly above his shoulders. Kikku
ran over to David and pushed him, trying to block him from
Albert, and David pushed her back with the rocks, causing
scratching under Kikku’s arm and under her chin.
Kikku let go of David after he pushed her with the
rocks. At that point, she saw David run over to Albert, who was
now laying face-up on the ground. David straddled Albert and it
appeared to Kikku that David was going to throw the rocks onto
Albert. When Kikku began screaming, David looked up, threw the
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rocks away, and ran away. Kikku and another person at the
apartment carried Albert upstairs. The paramedics arrived and
attempted CPR, and at this time Kikku realized that Albert was
bleeding and had been stabbed. Albert was taken to the Hawaiʻi
Medical Center West where he died at approximately 1:31 a.m.
from a stab wound that punctured his heart.
2. The Defense’s Case
After the prosecution rested its case, the defense
called David as a witness. David’s primary defense was that he
acted in self-defense. In his testimony, he disputed Kikku’s
account. He contended that he was invited into Kikku and Sam’s
Awanei Street apartment and that Albert was the aggressor in the
fatal confrontation.
David testified that, prior to the confrontation at
the Awanei Street apartment, on the evening of January 1, 2011,
he attended a party at a relative’s house in Kalihi. At the
party, Albert approached him and said, “why are you looking at
me, you want me to beat you up.” David did not respond. David
testified that after the threat from Albert, he left the
apartment in Kalihi, and received a ride to Kikku and Sam’s
Awanei Street apartment in Waipahu. David denied Sam told him
not to come inside to the party. He maintained that Sam never
told him to go home. He recalled that just before the police
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arrived at the apartment, he was on the balcony and Albert was
inside the apartment. When the police arrived, both David and
Albert went downstairs. David testified that he did not speak
with the police when they came to the Awanei Street address.
After the police left, David and Albert went back
upstairs and sat at the table in the living room. At that time,
David told Albert to give him a beer, but according to David,
Albert instead punched him and struck his nose with a beer
bottle. Albert told David “see, I can — I can beat you up,” and
David felt scared. Albert then challenged David to follow him
downstairs to the parking lot for a fight.7 David remained
sitting for a brief period, but eventually went downstairs
because Albert was calling him to come down to the parking lot,
and David wanted “to tell [Albert] and beg him not to do that to
me anymore.”
David testified that after he went downstairs to the
parking lot, he was walking between two parked cars, when Albert
started kicking and punching him. David fell down and Albert
7
Both David’s and Kikku’s testimony suggest that shortly after the
police left, David and Albert went downstairs to fight. Arlynn Ewen Moses
testified, however, that after the police left, David and Albert sat
together, during which time she was able to go to the store and return.
Officer Randall Woo (Officer Woo) testified that he responded to the call
that initially brought him to the Awanei Street apartment at 11:20 p.m. He
further testified that he returned to the same address an hour-and-a-half
later after David and Albert had their confrontation.
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continued kicking him. While David was on the ground and Albert
was kicking him, David got “something” in his hand, and swung at
Albert with it. After that, David stood up and Albert stopped
attacking him, backed off a little, and then he ran. David ran
after Albert because he was “getting mad” at him. After he
stopped and rested, David realized that Albert had injured him.8
For this reason, he became “really mad,” picked up two rocks,
and walked back towards Kikku and Albert.
Kikku struggled to take the rocks from David, but
David overpowered her. David then walked away from Kikku and
was “going to throw the rocks at [Albert],” but when he
approached Albert and saw him lying on the ground, he threw the
rocks away. David then walked away; he did not at that time
think Albert was dead.
3. Recess in the Defense’s Case and Bench Conference
During a recess in David’s testimony between direct
and cross-examination, the State informed the court of its
intent to call (1) Officer Woo as a rebuttal witness to show
that David falsely testified he had not spoken to the police,
and (2) Sam to show David falsely testified he was invited to
the party inside the Awanei Street apartment. With respect to
8
David’s testimony does not reflect what kind of injury he claims
to have suffered.
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Officer Woo, the prosecutor stated that he “ha[d] been trying to
reach one of [his] witnesses that [he] was not able to put on in
[the] case-in-chief. . . . [I]t’s Officer Randall Woo, who [he
was] still trying to contact.” When asked by the court for an
offer of proof as to the testimony of Officer Woo, the
prosecutor stated, “Officer Woo is the officer who responded to
the original call or complaint that there were males making
noise. He responded at about 11:30 to the Awanei Street address
and spoke to both [Albert] and the defendant, which is contrary
to what the defendant has testified to.” To further challenge
David’s credibility, the State sought to offer Sam’s testimony
that David was never invited to his apartment.
The defense objected to both rebuttal witnesses,
arguing that, pursuant to State v. Duncan, 101 Hawaiʻi 269, 276
67 P.3d 768, 775 (2003), the State should have presented the
evidence from Officer Woo and Sam in its case-in-chief. The
defense argued that under Duncan, the State was bound to give
all available evidence in support of the charges against David
in its case-in-chief, and was not permitted to withhold Officer
Woo’s testimony until rebuttal. Duncan, 101 Hawaiʻi at 276, 67
P.3d at 775. The State countered that it was unaware David
would deny speaking to the police and that Officer Woo’s
testimony only became relevant to David’s credibility once David
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surprised the prosecution by claiming during his direct
testimony he had not spoken to the police. The defense raised
the issue that in the police report the State relied upon for
its theory of admissibility, “nowhere does Officer Woo identify
Mr. David or Mr. Albert as the specific person he talked to.”
The court allowed the State to present its two
rebuttal witnesses for “the limited purpose” of establishing
whether David was invited to the Awanei Street apartment and
whether David or Albert spoke to the police.
4. The State’s Cross-Examination of David
At the conclusion of the bench conference at which the
court acceded to the State’s request to call two rebuttal
witnesses, the State began cross-examination of David. During
its examination, the State focused on David’s testimony that he
had not spoken to the police:
Q: Now, you testified last week that when the
police come you did not talk to the police; correct?
A: No.
Q: Not at all?
A: No.
Q: Did the police officer come and tell you that
you needed to leave the area?
A: No.
. . . .
Q: So it’s your testimony that you did not speak
to any police officer that night when they came over;
correct?
A: Yes, I didn’t talk to them.
Q: And no police officer asked you to leave the
area, is that what you’re telling us?
A: No.
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The prosecutor also asked David how he was wearing his hair on
the night of the incident. David testified that his hair was
“not as long” but that it was tied back with a rubber band. In
answer to the prosecutor’s questioning, he stated that Albert
had very short hair.
5. The Rebuttal Testimony of Officer Woo
Officer Woo took the stand to rebut David’s testimony
that neither David nor Albert spoke to the police on the night
of the incident. Officer Woo stated that he arrived at the
Awanei Street apartment at approximately 11:30 p.m. on the
evening of January 1, 2011 in response to a “suspicious
circumstance” call from a female at the same address. Upon
arrival, he spoke to the female who called him. Officer Woo
also testified that he spoke to two other people at the Awanei
Street apartment:
A: Other than the caller, I spoke with two males
who were in the area.
Q: In which area were you talking about? When you
say in the area, could you be more specific?
. . . .
Q: Okay, the record indicate he’s indicating the
parking lot fronting 84 or 94-832 Awanei Street.
Now, you spoke with – so did you speak with
those males?
A: Yes.
Q: And could you describe them, give a description
of each of the two males?
A: Only one male stood out in particular that
night, it was a Micronesian male with a ponytail.
Q: You didn’t know his name at the time?
A: No, I did not.
(Emphasis added.) Officer Woo did not describe the other male.
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After Officer Woo testified that he spoke with “a
Micronesian male with a ponytail,” he continued his testimony by
focusing on the male’s (David’s)9 uncooperative behavior. When
Officer Woo was asked what he told “that particular Micronesian
male,” the officer testified that David was uncooperative and
repeatedly refused the orders of Officer Woo to leave the scene:
A: The female wanted them to leave. And I just
related to both males that they didn’t live here, they
needed to leave. They need to get out of the area. Go
home or go to another friend’s house or somewhere else
other than there.
Q: Now, the one with the ponytail, did he leave
immediately?
A: Not immediately, but he left.
Q: Okay. What do you mean by not immediately?
A: Most times when we tell people they need to
leave they’ll just turnaround [sic], walk away.
In response to the testimony describing David’s
uncooperative behavior, the defense objected based upon
speculation and improper bolstering. The court overruled
the objection. Officer Woo thus continued his response
regarding David’s uncooperative conduct in refusing to
leave the area:
A: Most time people will turnaround [sic] and say,
okay, we’re leaving and they start to walk away. This
gentleman stayed in the parking lot and I told him one or
two more times that he needed to go.
. . . .
9
Officer Woo described the man as a “Micronesian male with a
ponytail.” The prosecutor had earlier elicited testimony from David that his
hair was tied back in a ponytail on the night of the incident, and that he
was in the parking lot area while the police were at the Awanei Street
apartment.
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A: My main concern was the individual with the
ponytail because I had to tell him more than once to leave.
(Emphasis added.) The defense again objected, this time
based on Hawaiʻi Rules of Evidence (HRE) Rule 404(b)(1994)10:
DEFENSE COUNSEL: I'm going to object, Your
Honor. This is 404(b) actually at this point.
Again, the court overruled defense counsel’s objection.
After the objection was overruled, Officer Woo testified
that he had to tell David to leave possibly up to four
times and that David remained uncooperative:
Q: Continue on, you had to what?
A: Tell him more than once to leave.
Q: How many times did you ask him to leave?
A: I can’t remember the exact number, maybe about
two or three or maybe even four, I’m not too sure.
Q: So what happened -- the first time you asked
him to leave, did he walk the direction that you told him
to the stop sign?
A: No, the first time I asked him to leave he was
in the parking lot area. So then I asked him to leave, he
didn’t. So then I walked to the parking lot area, got
closer to the male and then I told him to leave.
10
HRE Rule 404 (b) provides:
(b) Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible where such evidence is probative of
another fact that is of consequence to the
determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, modus operandi, or absence of mistake or
accident. In criminal cases, the proponent of
evidence to be offered under this subsection shall
provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on
good cause shown, of the date, location, and general
nature of any such evidence it intends to introduce
at trial.
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Q: So you asked him once and he didn’t move, okay.
Did he appear to understand what you were telling him? How
did you tell him?
A: I told him, oh, she doesn’t want you here. You
guys need to leave. You don’t live here, you guys need to
leave.
Q: So he doesn’t leave the parking lot area;
right?
A: No.
Q: So what happens next?
A: So I tell him again, and I’m not too sure at
that time or another time I had to tell him again, but I
know I had to tell him more than once. And when he did
listen, then he walked the path I showed earlier on Awanei.
(Emphasis added.) On cross-examination, Officer Woo
acknowledged that the report he wrote after the incident did not
contain a description of either of the males, nor did the report
include any reference to either of them refusing to leave. On
re-direct, Officer Woo testified that, an hour-and-a-half after
he left the initial call, he was called back to the same
residence for a “med assist, a defib-type case.”
6. The State’s Closing Argument
The State’s closing argument repeatedly referenced the
rebuttal testimony of Officer Woo. The prosecutor sought to
establish that, contrary to David’s testimony, David acted
aggressively by refusing Officer Woo’s instructions to leave
Kikku’s Awanei Street apartment. The State emphasized that it
was necessary for Officer Woo to ask David to leave the
apartment area several times. In so doing, the State used
Officer Woo’s testimony to depict David’s uncooperative state of
mind shortly before he stabbed Albert:
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[T]he defendant goes onto [sic] say, well, the
police came over, but I don’t talk to them. That’s
an outright lie. Not only was he spoken to, he was
told to leave the premises twice by Officer Woo.
Officer Randall Woo.
. . . .
Now, bear in mind one-and-a-half hours later
at 1:00 AM Officer Woo is called back to the same
address, this time somebody is dead. It was a
different call, a defigrillator [sic] call. But he
eventually found out this is a homicide. Somebody
died. And the suspect is . . . the same guy with the
ponytail.
And [Officer Woo] goes over, but the thing is
the officer realizes, you know, what happened at
11:20 in the evening an hour-and-a-half earlier may
be important. So I better make a miscellaneous pub
report of that to document that I did go over to that
house earlier because I may not remember if this ever
becomes important.
[H]e looks at that report he remembers the guy
with the ponytail. The guy that I had to tell twice
to leave. Is that the sign of a guy that’s scared as
he would have told us? That’s the first signs at
least we have from Officer Woo that we have a person
who’s not very cooperative, who refuses to leave the
premises. . . . [Albert] left the premises
immediately. It was Mr. David that Officer Woo had
to ask several times to leave.
(Emphasis added.) Accordingly, the prosecutor directly relied
on Officer Woo’s testimony, which described David’s repeated
refusal to follow the officer’s orders despite being told to
leave the premises “several times,” in order to demonstrate that
David was not “scared as he [] told us,” contradicting David’s
testimony that he acted in self-defense.
7. Verdict and Sentencing
On October 13, 2011, the jury returned its verdict.
As to count I, murder in the second degree, the jury found David
guilty of the lesser included offense of manslaughter. As to
count II, assault in the second degree, the jury found David
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guilty of the lesser included offense of assault in the third
degree.
At the sentencing hearing on January 24, 2012, the
State asked the court to impose a twenty-year sentence for the
manslaughter conviction in order to send a message to the
Micronesian community that it is unacceptable to drink alcohol
and engage in violence:
You know [David] comes from Micronesia, from Chuuk,
and well, in this case, would provide just punishment for
the offense.
But what I wanted to focus on, Your Honor, is does
this sentence under subsection B2, subsection B, afford
adequate deterrence to criminal conduct?
And when I talk about, perhaps, a sentence like this
could save lives, I’m talking about sending a message to
the Micronesian community.
Even more so than just a community, but I say this,
by no means to be a racist about anything, but in my
experience, and I believe in the Court’s experience, as
well as Mr. Aquino’s experience, over the past few years,
we have had a number of cases that have come in involving
Chuukese, Micronesian males drinking, not high on drugs,
like type of cases we’re more used to seeing, high on
drugs, try to get drugs, commit offenses because of the
need to get drugs or being high on drugs.
But we’re talking Micronesians who get inebriated on
alcohol, then become violent with their own family members,
their own friends and they involve knives.
It is the exact same situation that is before the
Court today, and when you think about a sentence that needs
to send a message out to the Micronesian community, mainly
the males, the idea that they can just drink all they want
and not be responsible for what happens after that, I think
this would send a strong message to them that that is not
acceptable in the laws of the United States and the laws of
the State of Hawaiʻi.
So we’re talking about affording adequate deterrence
of criminal conduct by sending a message.
When delivering the sentence, the court made the
following remarks:
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I think the root of all evils in this case was,
obviously, alcohol.
Those of you who are in the gallery, you seen
or you - you see the devastating effects that alcohol
can cause.
I guess it’s fun and it tastes good when you’re
drinking it at the time, but the taste of alcohol,
obviously, doesn’t taste good as you sit there today.
No one can stop you from drinking alcohol, but
those of you who are from the Micronesian Islands,
you come here to start a legacy, and in this legacy,
you don’t need that legacy tarnished by alcohol,
because alcohol will leave the legacy of people
getting killed and people being prosecuted and
standing before a Court for wrongdoings. That’s not
what you need.
But my sentence today is not to send a message
to you. My message today is to address the specific
conduct of Mr. David.
The court sentenced David to twenty years imprisonment
on count I and one year imprisonment on count II, to run
concurrently.
B. Intermediate Court of Appeals
The ICA affirmed David’s conviction, holding that the
court did not abuse its discretion in allowing the State’s
rebuttal witnesses to testify. However, the ICA vacated David’s
sentence and remanded for resentencing, on the grounds that
comments made by the prosecutor during sentencing were “highly
improper” and that the circuit court judge “did not go far
enough to make its repudiation of the prosecutor’s improper
arguments clear on the record.” The ICA held that “a
defendant’s race, ethnicity, or national origin cannot be used
as a justification for the imposition of a harsher penalty on
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the defendant.” The ICA therefore remanded for resentencing
before a new judge.
C. Application for Writ of Certiorari
In his application for certiorari to this court, David
presents two questions:
I. Whether the ICA gravely erred in holding that
the trial court did not abuse its discretion by
allowing the State to present the testimony of
two rebuttal witnesses.
II. Given the egregious misconduct of the [DPA]
during the sentencing hearing, whether the ICA
gravely erred in remanding this case for
resentencing rather than for a new trial.
III. STANDARDS OF REVIEW
A. Admissibility of Rebuttal Testimony
“With respect to the admissibility of rebuttal
testimony, the standard on appeal is abuse of discretion. This
court has declared that ‘[t]he introduction of evidence in
rebuttal and in surrebuttal is a matter within the discretion of
the trial court and appellate courts will not interfere absent
abuse thereof.’” Duncan, 101 Hawaiʻi at 274, 67 P.3d at 773
(2003) (quoting Takayama v. Kaiser Found. Hosp., 82 Hawaiʻi 486,
495, 923 P.2d 903, 912 (1996)).
B. Abuse of Discretion
“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
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litigant.” State v. Plichta, 116 Hawaiʻi 200, 214, 172 P.3d 512,
526 (2007) (internal quotation marks and citation omitted).
C. 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 Hawaiʻi 405, 412, 984 P.2d 1231, 1238 (1999)
(quoting State v. Sawyer, 88 Hawaiʻi 325, 329 n.6, 966 P.2d 637,
641 n.6 (1998)) (internal quotation marks and citations
omitted).
“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. McGriff, 76 Hawaiʻi 148, 158, 871 P.2d
782, 792 (1994). “In order to determine whether the alleged
prosecutorial misconduct reached the level of reversible error,
[the appellate court considers] 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).
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IV. DISCUSSION
A. Officer Woo’s Testimony Was Inadmissible on Rebuttal
and Its Admission Was Not Harmless Error
David argues the circuit court abused its discretion
by allowing Officer Woo to testify as a rebuttal witness because
the State was required to introduce Officer Woo’s testimony in
its case-in-chief under Duncan.11 According to David, Officer
Woo’s rebuttal testimony that David refused to leave the parking
lot established David’s belligerent state of mind prior to the
stabbing, thus suggesting that David possessed the requisite
criminal intent to commit the murder of Albert and the assault
of Kikku. Consequently, David maintains that the State was
required to introduce Officer Woo’s testimony in the State’s
case-in-chief, citing Duncan. See Duncan, 101 Hawaiʻi at 276, 67
P.3d at 775 (“[A] party is bound to give all available evidence
in support of an issue in the first instance it is raised at
trial and will not be permitted to hold back evidence
confirmatory of his or her case and then offer it on
rebuttal.”). The State maintains it did not expect David to
testify that he did not speak with the police that night, and
11
David’s application for writ of certiorari purports to challenge
“two rebuttal witnesses,” but only raises objections to the testimony of
Officer Woo (not the State’s other rebuttal witness, Erick Sam).
Accordingly, we only discuss Officer Woo’s rebuttal testimony.
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therefore Officer Woo’s testimony was offered in rebuttal merely
to contradict David’s testimony.
The State explained its need for Officer Woo’s
rebuttal testimony during a bench conference. As its offer of
proof, the State informed the court that Officer Woo responded
to the call at the Awanei Street address and “spoke to both
[Albert] and the defendant, which is contrary to what the
defendant has testified to.” Defense counsel objected to the
rebuttal testimony based on Duncan, arguing that the State
should have introduced his testimony during its case-in-chief.
The State argued that Officer Woo was being called in rebuttal
because the State “did not know at the time prior to the
defendant testifying [] that he [would say that he] didn’t speak
with the police” and that Officer Woo’s “offer of testimony
would be, that he did speak, he spoke with both [Albert] and the
defendant.” Defense counsel again objected, arguing that the
State was “aware of this officer, they were aware what the
officer was going to testify to, they had the police report.”
The court overruled the defense’s objections to Officer Woo’s
rebuttal testimony. After David’s direct testimony, the trial
was recessed for the weekend.
The State began its cross-examination the following
Monday. At no time prior to the cross-examination – or prior to
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Officer Woo’s subsequent rebuttal testimony - did the State
disclose to David or the court its intent to also introduce to
the jury through its rebuttal witness David’s uncooperative
refusal to comply with Officer Woo’s order to leave the
apartment area where David later stabbed Albert. During David’s
cross-examination, the State confirmed with David that he had
not spoken to the police. The State then called Officer Woo as
a rebuttal witness.
1. Officer Woo’s Testimony Identifying David as
Uncooperative was Inadmissible on Rebuttal
As it proposed in its offer of proof, the State called
Officer Woo to testify in rebuttal for the ostensible purpose of
impeaching David. However, rather than limiting the officer’s
testimony to the fact that he did speak to someone matching
David’s description in the Awanei Street parking lot, Officer
Woo presented testimony that went far beyond impeachment
evidence as it instead adduced substantive evidence of David’s
uncooperative behavior preceding his altercation with Albert.
Thus, as David observed in his opening brief to the ICA, under
“the guise of impeaching Defendant’s credibility” the State
presented testimony on rebuttal that went beyond the purpose
represented in its offer of proof. In so doing, it improperly
bolstered the State’s case that David acted as the first
aggressor in unjustifiably causing the death of Albert.
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By using this tactic, the State exceeded the scope of
rebuttal testimony permitted by the court, which the court
allowed only for the “limited purpose” of impeaching David’s
testimony that he did not speak to the police. Initially,
Officer Woo’s rebuttal testimony stayed within the parameters
established by the court. Officer Woo refuted David’s testimony
that neither David nor Albert spoke to the police on the night
of the incident. He stated that he arrived at the Awanei Street
apartment at approximately 11:30 p.m. on the evening of January
1, 2011 in response to a “suspicious circumstance” call from a
female at the same address. Upon arrival, he spoke to the
female who called him. Subsequently, Officer Woo spoke to two
males in the parking lot; he identified one as “a Micronesian
male with a ponytail.”
Thereafter, Officer Woo’s testimony far exceeded the
limited scope of rebuttal testimony permitted by the court. In
addition to contradicting David’s testimony on cross-examination
that he did not talk to the police prior to the incident,
Officer Woo testified that the male with the ponytail was
uncooperative and refused to leave the parking lot after Officer
Woo’s multiple orders. Officer Woo testified that he told the
two males they needed to leave the area because “the female
wanted them to leave,” but the man with the ponytail did not
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leave immediately, despite repeated orders by Officer Woo.
Officer Woo stressed that, unlike the usually cooperative people
he encounters, David did not cooperate when he told him to leave
the area: “[m]ost times when we tell people they need to leave
they’ll just turnaround [sic], walk away. . . . This gentleman
stayed in the parking lot and I told him one or two more times
that he needed to go.” To this testimony, the defense properly
objected on the basis of speculation and improper bolstering.
Officer Woo’s view of how other people would behave in David’s
place constituted speculation as to what other people would do
in David’s situation; his testimony also bolstered his testimony
by comparing David’s behavior to that of most people who would
have cooperated with police instruction.
With the defense’s first objection overruled, the
State continued offering testimony that exceeded the scope of
testimony permitted by the court. Officer Woo noted that, after
“the other male” left the area, his “main concern was the
individual with the ponytail because [he] had to tell him more
than once to leave.” The defense asserted another objection to
the unexpected testimony, citing HRE Rule 404(b). Defense
counsel established that Officer Woo’s testimony improperly
introduced substantive evidence of prior bad conduct – thereby
exceeding the limited scope of rebuttal testimony. HRE Rule 404
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proscribes the use of character evidence to prove conduct,
subject to exceptions:
(a) Character evidence generally. Evidence of a person’s
character or a trait of a person’s character is not
admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent
trait of character of an accused offered by an
accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent
trait of character of the victim of the crime offered
by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim
was the first aggressor;
(3) Character of witness. Evidence of the character
of a witness, as provided in rules 607, 608, 609, and
609.1.
HRE Rule 404(a). In criminal cases, the proponent of evidence
of other crimes, wrongs, or acts probative of another fact of
consequence “shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the date, location, and general nature of
any such evidence it intends to introduce at trial.” HRE Rule
404(b). Here, Officer Woo’s testimony fell within the
proscription of HRE Rule 404(b) because it presented evidence of
David’s bad character: his multiple refusals to comply with
Officer Woo’s orders to leave the premises.
Even supposing that the State could show good cause
for not providing reasonable notice of this character evidence
in advance of trial, reasonable notice was required during trial
once it became known to the State. Although the State provided
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Officer Woo’s police report, the report did not identify David
or Albert, and it only explained that the police spoke with an
undescribed male, saying nothing about the male’s refusal to
comply with Officer Woo’s repeated orders to leave. Thus, the
State exceeded the scope of rebuttal testimony allowed by the
court and failed to give reasonable notice that substantive
evidence of David’s bad character would be presented in
rebuttal. Given defense counsel’s timely objections to Officer
Woo’s testimony as it exceeded the limited scope permitted by
the court, the testimony depicting David’s unwillingness to
comply with repeated, direct orders from a uniformed officer was
inadmissible on rebuttal.
2. The Erroneous Admission of Officer Woo’s Rebuttal
Testimony Was Not Harmless
The introduction of Officer Woo’s improper rebuttal
testimony over the defense’s objections was not harmless. In
Duncan, we held that improper testimony impeaching a defendant’s
credibility on rebuttal was not harmless when the defendant’s
credibility was “the linchpin of his defense” because there was
a “reasonable possibility that the erroneous admission of [the
witness’s] testimony contributed to [the defendant’s]
conviction.” Duncan, 101 Hawaiʻi at 278, 67 P.3d at 777.
Similarly, David’s demeanor leading up to the
altercation was a “linchpin of his defense.” It was relevant to
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his claim that he acted in self-defense. Officer Woo’s
testimony refuted David’s self-defense claim because David’s
uncooperative behavior with Officer Woo tended to show that
David acted as the first aggressor in his altercation with
Albert. Indeed, in closing argument, the State argued against
David’s contention that he acted in self-defense by citing
Officer Woo’s improper rebuttal testimony to demonstrate that
David was not scared in his altercation with Albert. The State
stressed that David was “not very cooperative”; and noted that
Officer Woo had to tell David to leave “several times” in
contrast to Albert, who “left the premises immediately.” After
comparing David’s refusal to cooperate with Albert’s cooperative
behavior, the prosecutor asked the jury “[i]s that the sign of a
guy that’s scared as he would have told us?” Thus, Officer
Woo’s testimony comparing David’s uncooperative behavior to
Albert’s impliedly cooperative behavior constituted a formidable
confirmation to the jury that David unjustifiably killed Albert.
Moreover, Officer Woo’s rebuttal testimony identifying
David as uncooperative carried the great persuasive import of an
inherently credible and objective police officer observer. Its
importance to the State’s case was paramount. In its case-in-
chief, the State elicited testimony from Kikku seeking to show
that David was drunk and acted aggressively towards Albert on
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the night of the murder.12 Officer Woo’s testimony, specifically
describing his repeated statements to David and David’s refusals
to comply, substantially reinforced Kikku’s direct testimony.
The only witness who testified to seeing the initial altercation
between David and Albert besides David himself was Kikku,
Albert’s aunt. Officer Woo’s improper rebuttal testimony
provided contradictory evidence to David’s testimony regarding
who was the first aggressor.13 Thus, given that the rebuttal
testimony described David’s uncooperative state of mind prior to
his stabbing of Albert, there is a reasonable possibility that
Officer Woo’s testimony depicting David as repeatedly refusing
to comply with his orders contributed to David’s conviction. We
hold that the erroneous admission of Officer Woo’s rebuttal
testimony was not harmless.
12
Kikku testified that David had demanded all the beer that Albert
had refused to give to David before leaving Kalihi and going to the Awanei
Street apartment; that David was not invited into the Awanei Street
apartment; and that David appeared to threaten Albert by telling him “no man
can do this to me” in response to receiving a scratch on the nose from an
earlier altercation. The State also elicited testimony from Arlynn Ewen
Moses, who corroborated Kikku’s testimony that David was not invited into the
Awanei Street apartment and that David and Albert had been fighting earlier
in the evening.
13
Kikku testified that she saw David hit Albert in the back of the
head, but she did not witness the fatal stabbing.
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B. Improper Comments During Sentencing
Because we rule in favor of David regarding part of
his first question on certiorari, holding that the erroneous
admission of Officer Woo’s rebuttal testimony was not harmless,
we need not resolve his second question: whether improper
statements by the prosecutor at the sentencing hearing required
a new trial rather than the resentencing ordered by the ICA.
Based on the importance of the second question, however, we
exercise our supervisory powers under HRS § 602-4 (2016)14 to
provide guidance to the trial courts.
In his opening brief to the ICA, David argued that the
prosecutor’s “racist and sexist remarks” improperly influenced
the circuit court. The ICA held that the prosecutor’s comments
were “highly improper” and that the circuit court judge “did not
go far enough to make its repudiation of the prosecutor’s
improper arguments clear on the record.” The ICA therefore
remanded for resentencing before a new judge.
We concur with the ICA that comments made during the
sentencing hearing15 were improper. See Rogan, 91 Hawaiʻi at 414-
14
HRS § 602-4 provides, “Superintendence of inferior courts. The
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.”
15
The prosecutor’s relevant remarks at sentencing, as excerpted in
part II.A.7. above, were as follows:
(. . . continued)
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15, 984 P.2d at 1240-41 (“[A]rguments by the prosecution
contrived to stimulate racial prejudice . . . threaten[] our
multicultural society and constitutional values. . . . [A]ppeals
(continued. . . )
You know [David] comes from Micronesia, from Chuuk,
and well, in this case, would provide just punishment for
the offense.
But what I wanted to focus on, Your Honor, is does
this sentence under subsection B2, subsection B, afford
adequate deterrence to criminal conduct?
And when I talk about, perhaps, a sentence like this
could save lives, I’m talking about sending a message to
the Micronesian community.
Even more so than just a community, but I say this,
by no means to be a racist about anything, but in my
experience, and I believe in the Court's experience, as
well as Mr. Aquino’s experience, over the past few years,
we have had a number of cases that have come in involving
Chuukese, Micronesian males drinking, not high on drugs,
like type of cases we’re more used to seeing, high on
drugs, try to get drugs, commit offenses because of the
need to get drugs or being high on drugs.
But we’re talking Micronesians who get inebriated on
alcohol, then become violent with their own family members,
their own friends and they involve knives.
It is the exact same situation that is before the
Court today, and when you think about a sentence that needs
to send a message out to the Micronesian community, mainly
the males, the idea that they can just drink all they want
and not be responsible for what happens after that, I think
this would send a strong message to them that that is not
acceptable in the laws of the United States and the laws of
the State of Hawaiʻi.
So we’re talking about affording adequate deterrence
of criminal conduct by sending a message.
(Emphases added.)
In addition, as also excerpted in part II.A.7., above, although the
court stated that its sentence was not to send a message to the Micronesian
community, it referred to the community before imposing sentence.
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to racial prejudice lack the professionalism and decorum
required of attorneys who practice before the bar of the courts
of Hawaiʻi and will not be tolerated.”). The ICA also correctly
concluded that the circuit court did not meet its burden to
repudiate the improper remarks made by the prosecutor when he
appealed to race in arguing for a sentence that would “send a
message to the Micronesian community.”
V. CONCLUSION
Based on the foregoing, we vacate the ICA’s judgment
on appeal and the circuit court’s judgment of conviction and
sentence, and remand the case to the circuit court for a new
trial.
Craig W. Jerome /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson
and Loren J. Thomas /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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