State v. Okihara ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2021
07:54 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
VANCE OKIHARA, also known as
Vance M. Okihara, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Vance Okihara, also known as Vance
M. Okihara (Okihara), appeals from the Judgment of Conviction and
Sentence; Notice Of Entry, filed on February 1, 2019, in the
Family Court of the First Circuit.1/ After a jury trial, Okihara
was convicted of Abuse of Family or Household Members, in
violation of Hawaii Revised Statutes (HRS) Section 709-906(1)
(Supp. 2017).2/
1/
The Honorable Kevin A. Souza presided.
2/
HRS § 706-906(1) provides, in relevant part:
It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member
. . . .
For the purposes of this section:
. . . .
"Family or household member":
(a) Means spouses or reciprocal beneficiaries,
former spouses or reciprocal beneficiaries,
(continued...)
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On appeal, Okihara contends that the State committed
several acts of prosecutorial misconduct during its closing
argument, which adversely affected Okihara's right to a fair
trial. Specifically, Okihara argues that during the State's
closing argument, the deputy prosecuting attorney (DPA)
improperly: (1) imposed his personal opinion regarding the
credibility of the complaining witness (CW); (2) introduced facts
not in evidence; (3) commented on and drew attention to Okihara's
failure to testify; (4) shifted the burden of proof to the
defense; and (5) misstated the law regarding the State's burden
to prove guilt beyond a reasonable doubt.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Okihara's contentions as follows:
The issue we find dispositive is whether the prosecutor
improperly commented on and drew attention to Okihara's failure
to testify at trial. Okihara asserts that he was "the only
person who could contradict [the] CW's testimony" regarding the
alleged abuse, and he chose not to testify. Okihara argues that
in closing arguments, "[t]he DPA repeatedly referenced [the] CW's
testimony as not being contradicted at trial, thereby calling
attention to the fact that Okihara did not take the stand[,]"
such that the "DPA's statements [would] naturally [be] taken [by
the jury] as comment on Okihara's failure to testify in his own
defense[.]"
Okihara did not object to the DPA's allegedly improper
comments at trial. "When defense counsel fails to object to
prosecutorial misconduct at trial, we may still recognize such
misconduct if it affected the defendant's substantial rights,
such that the circuit court's failure to take corrective action
constituted plain error." State v. Austin, 143 Hawai#i 18, 40,
2/
(...continued)
persons in a dating relationship as defined
under section 586-1, persons who have a child in
common, parents, children, persons related by
consanguinity, and persons jointly residing or
formerly residing in the same dwelling unit[.]
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422 P.3d 18, 40 (2018) (citing State v. Wakisaka, 102 Hawai#i
504, 513, 78 P.3d 317, 326 (2003)).
[Our] analysis proceeds in two steps. First, we determine
whether the prosecutor's actions constituted misconduct.
[State v. ]Clark, 83 Hawai#i [289,] 304, 926 P.2d [194,] 209
[(1996)]. If we conclude that the prosecutor's actions were
improper, we analyze whether the action affected the
defendant's substantial rights, such that the circuit court
plainly erred by not intervening and taking remedial action.
Id.Austin, 143 Hawai#i at 40, 422 P.3d at 40.
"As a rule, the prosecution cannot comment on the
defendant's failure to testify because this infringes on the
defendant's right not to be a witness against her- or himself."
Wakisaka, 102 Hawai#i at 515, 78 P.3d at 328 (citing Haw. Const.
art. I, § 19). "The prosecution's comment on a defendant's
failure to testify will be deemed improper if that comment was
'manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure
of the accused to testify.'" Id. (quoting State v. Padilla, 57
Haw. 150, 158, 552 P.2d 357, 362 (1976) (quoting United States v.
Wright, 309 F.2d 735, 738 (7th Cir. 1962))) (internal quotation
marks omitted).
The prosecution is entitled to call attention to the fact
that the testimony of the witnesses for the prosecution has
not been controverted, unless the circumstance that the
defendant is the only one who could possibly contradict that
testimony would necessarily direct the jury's attention
solely to the defendant's failure to testify.
Padilla, 57 Haw. at 158, 552 P.2d at 362–63, overruled on other
grounds by State v. Kaneaiakala, 145 Hawai#i 231, 450 P.3d 761(2019), and abrogated on other grounds by State v. Cabagbag, 127
Hawai#i 302, 277 P.3d 1027 (2012); see Wakisaka, 102 Hawai#i at
515, 78 P.3d at 328.
On appeal, Okihara contends that the DPA improperly
commented on Okihara's failure to testify, by making the
following underlined statements during closing and rebuttal
arguments:
At the beginning of this case I told you we are here today
because of what the defendant did to [the CW] on the night
of February 23rd, 2018, when they were home alone.
Now, ladies and gentlemen, we have direct evidence of
what happened that night. And direct evidence is defined on
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page 5 of your jury instructions. We have the testimony of
[the CW].
And some of you may be wondering: Is that enough?
And the answer to that is on page 10 of your jury
instructions. If the testimony -- it is the testimony of a
single witness, if believed, is enough to prove a fact.
That makes sense because there were only two people there
who could have told us what happened. Only two people were
there when the defendant physically abused [the CW].
So why should we believe her? Three reasons, ladies
and gentlemen. Reason number 1, her testimony was credible.
Reason number 2, other evidence supports her testimony. And
reason number 3, there is no contradictory evidence.
. . . .
And I want to go back to just one more thing. Reason
number 3, there is no contradictory evidence. And the
defense does not have to call any witnesses and the
defendant doesn't have to testify but that doesn't change
the fact that there is no witness who tells you anything
differently happened.
* * *
You just heard defense counsel's closing arguments.
Now, let me ask you this. Aside from arguments and her
questions during the trial, which are not evidence, what
evidence is there to say that this never happened? There
isn't. The only evidence that we have is that [the CW] said
that at some point that night he grabbed her by the shirt
and threw her to the ground. The only evidence we have
today is that at some point during that night he kicked her
. . . .
(Emphases added.)
In State v. Faatea, No. CAAP-XX-XXXXXXX, 2018 WL
3199236, at *3 (Haw. App. 2018), we considered a similar case in
which the defendant was charged under HRS § 709-906(1) with abuse
of a family member. We noted that only the complaining witness
and the defendant were present when the alleged abuse occurred,
the defendant was the only person who could contradict the
complaining witness's testimony, and the defendant chose not to
testify at trial. 2018 WL 3199263, at *3. On three occasions,
the prosecutor referenced the complaining witness's testimony as
not being contradicted at trial. Specifically, the prosecutor
stated: "[CW] was telling the truth and there was no evidence to
show she was not"; "Now, again, there's no evidence to show that
she is lying[]"; and "If you choose to agree with [CW], and
there's no reason not to, you must find the defendant guilty."
Id. We concluded that these comments "did indirectly and
repeatedly reference and call attention to [the defendant's]
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failure to testify at trial" and "would naturally and necessarily
be taken as a comment on [the defendant's] decision not to
testify in his own defense[.]" Id.Similarly, here, the evidence indicated that only
Okihara and the CW were present when the alleged abuse occurred,
such that Okihara was the only person who could contradict the
CW's testimony about the incident. The DPA drew the jury's
attention to this circumstance by stating: "[T]here were only
two people there who could have told us what happened. Only two
people were there when the defendant physically abused [the CW]."
As in Faatea, the DPA then repeatedly referenced the CW's
testimony as not being contradicted. In one of these instances,
the DPA explicitly reminded the jury that Okihara did not
testify, stating: "the defendant doesn't have to testify but
that doesn't change the fact that there is no witness who tells
you anything differently happened." See Wakisaka, 102 Hawai#i at
515-16, 78 P.3d at 328-29 (ruling that the State improperly
commented on the defendant's failure to testify, where the
prosecution argued to the jury that the defendant was alone with
the victim, that "[h]e would know," and that "[i]f [the
defendant] doesn't tell us, we can only look to [the victim] and
see what her body tells us"). On this record, we conclude that
the DPA's statements indirectly and repeatedly referenced and
called attention to Okihara's failure to testify. We further
conclude that the statements would naturally and necessarily be
taken as a comment on Okihara's decision not to testify on his
own defense, in violation of the direction in Padilla.
Having concluded that the State's actions were
improper, we next analyze whether they affected Okihara's
substantial rights, such that the circuit court plainly erred by
not intervening and taking remedial action. See Austin, 143
Hawai#i at 40, 422 P.3d at 40 (citing Clark, 83 Hawai#i at 304,
926 P.2d. at 209). In that regard, we will not overturn a
defendant's conviction on the basis of plainly erroneous
prosecutorial misconduct unless "there is a reasonable
possibility that the misconduct complained of might have
contributed to the conviction." Wakisaka, 102 Hawai#i at 513, 78
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P.3d at 326 (quoting State v. Rogan, 91 Hawai#i 405, 412, 984
P.2d 1231, 1238 (1999)).
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."
Factors considered 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. (quoting State v. Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d
637, 641 n.6 (1998)).
On this record, we cannot conclude beyond a reasonable
doubt that the DPA's improper comments did not contribute to
Okihara's conviction. In considering the nature of the conduct
at issue, we recognize that the DPA's repeated statements calling
attention to Okihara's failure to testify infringed on his
constitutional right not to be a witness against himself. See
Wakisaka, 102 Hawai#i at 515, 78 P.3d at 328. We further note
that no curative instruction was given to the jury regarding the
DPA's improper comments – a factor that weighs heavily in
Okihara's favor. See id. at 516, 78 P.3d at 329.
In reviewing the evidence, we also cannot say that the
DPA's improper statements did not contribute to Okihara's
conviction. Given that only Okihara and the CW were present when
the alleged abuse occurred, the jury had to decide whether to
believe the CW's account of events. In short, the determination
of Okihara's guilt depended on the jury's assessment of the CW's
credibility. In this context, the DPA's repeated statements that
the CW's testimony was not contradicted likely had a direct
impact on the jury's assessment of the CW's credibility and
called attention to Okihara's right not to testify at trial. See
State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986)
(because credibility was a central issue in the case, the supreme
court could not "conclude beyond a reasonable doubt that the
prosecutor's remarks had little likelihood of influencing this
critical choice"). Given that no step was taken to cure the harm
from the misconduct, we conclude there is a reasonable
possibility that the error contributed to Okihara's conviction.
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Accordingly, we conclude there was plain error that affected
Okihara's substantial rights.
In light of our conclusion, we do not reach Okihara's
other arguments on appeal.
Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Sentence; Notice Of Entry, filed on February 1,
2019, in the Family Court of the First Circuit, is vacated. The
case is remanded to the Family Court for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, June 28, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Susan L. Arnett, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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