State v. Williams. ( 2021 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
30-JUN-2021
09:09 AM
Dkt. 79 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
MATTHEW K. WILLIAMS,
Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1PC141000589)
JUNE 30, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.
AND CIRCUIT JUDGE CHANG, FOR POLLACK, J., RECUSED
OPINION OF THE COURT BY WILSON, J.
Petitioner/Defendant-Appellant Matthew Williams
(“Williams”) was convicted of four counts of sexual assault
following a jury trial. At trial, the prosecutor introduced to
the jury incriminating statements, allegedly made by Williams,
without previously disclosing them to the defense during
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
discovery as required by Hawai‘i Rules of Penal Procedure
(“HRPP”) Rule 16(b)(1) (2016).1 The prosecutor also introduced
statements, incriminating to the defendant, allegedly made by
the complaining witness despite the court’s motion in limine
ruling barring their introduction. Finally, the prosecutor
engaged in improper, unnecessarily lurid questioning of defense
witnesses to inflame the passions of the jury. The cumulative
impact of the prosecutor’s misconduct deprived Williams of a
fair trial and was, therefore, not harmless beyond a reasonable
doubt.
1 HRPP Rule 16(b)(1) provides, in relevant part:
(b) Disclosure by the Prosecution.
(1) Disclosure of Matters Within Prosecution's
Possession. The prosecutor shall disclose to the defendant
or the defendant's attorney the following material and
information within the prosecutor's possession or control:
. . . .
(ii) any written or recorded statements and the
substance of any oral statements made by the
defendant, or made by a co-defendant if intended to
be used in a joint trial, together with the names and
last known addresses of persons who witnessed the
making of such statements;
(iii) any reports or statements of experts, which
were made in connection with the particular case or
which the prosecutor intends to introduce, or which
are material to the preparation of the defense and
are specifically designated in writing by defense
counsel, including results of physical or mental
examinations and of scientific tests, experiments, or
comparisons[.]
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
I. BACKGROUND
A. Indictment and Pretrial Proceedings
Williams was indicted on April 9, 2014, on one count
of sexual assault against a minor in the first degree, in
violation of Hawai‘i Revised Statutes (“HRS”) § 707-730(1)(c)
(2014),2 and three counts of sexual assault against a minor in
2 HRS § 707-730(1) provides, in relevant part:
(1) A person commits the offense of sexual assault in the
first degree if:
. . . .
(c) The person knowingly engages in sexual
penetration with a person who is at least fourteen
years old but less than sixteen years old; provided
that:
(i) The person is not less than five years
older than the minor; and
(ii) The person is not legally married to the
minor[.]
HRS § 702-206(2) (2014) provides, in relevant part:
(a) A person acts knowingly with respect to his
conduct when he is aware that his conduct is of that
nature.
(b) A person acts knowingly with respect to
attendant circumstances when he is aware that such
circumstances exist.
HRS § 707-700 (2014) (modified 2016), then extant, provided in
relevant part:
“Sexual penetration” means:
(1) Vaginal intercourse, anal intercourse, fellatio,
deviate sexual intercourse, or any intrusion of any
part of a person’s body or of any object into the
genital or anal opening of another person’s body; it
occurs upon any penetration, however slight, but
emission is not required. As used in this
(continued . . .)
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the third degree, in violation of HRS § 707-732(1)(c) (2014) in
the Circuit Court of the First Circuit (“circuit court”).3 Prior
to trial, the government notified the defense in writing of its
intention to call Alexander J. Bivens, Ph.D. (“Dr. Bivens”) as
an “expert witness on the dynamics of sexual abuse to the
incident for which [Williams was] charged.” By letter dated
October 20, 2014, the defense requested, pursuant to HRPP Rule
(continued . . .)
definition, “genital opening” includes the anterior
surface of the vulva or labia majora; or
(2) Cunnilingus or anilingus, whether or not the actual
penetration has occurred.
For purposes of this chapter, each act of sexual
penetration shall constitute a separate offense.
3 HRS § 707-732(1), provides in relevant part:
(1) A person commits the offense of sexual assault in the
third degree if:
. . . .
(c) The person knowingly engages in sexual contact
with a person who is at least fourteen years old but
less than sixteen years old or causes the minor to
have sexual contact with the person; provided that:
(i) The person is not less than five years
older than the minor; and
(ii) The person is not legally married to the
minor[.]
HRS § 707-700 (2014) (modified 2016), then extant, provides in
relevant part:
“Sexual contact” means any touching, other than acts of
“sexual penetration”, of the sexual or other intimate parts
of another, or of the sexual or other intimate parts of the
actor by another, whether directly or through the clothing
or other material intended to cover the sexual or other
intimate parts.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
16(b)(1)(iii),4 that the prosecutor provide the defense with a
report containing Dr. Bivens’ conclusions and opinions, notes
and/or records of what he had reviewed and done in this case,
and pleadings and orders in other cases in which Dr. Bivens had
testified or served as an expert witness. In response, the
prosecutor provided the defense with over 500 pages of articles
consisting of the studies and literature Dr. Bivens would be
relying upon for his expert testimony. The defense filed a
motion to compel discovery or, in the alternative, to exclude
testimony of Dr. Bivens, on the basis that the prosecutor failed
to provide the defense with a written report from Dr. Bivens in
accordance with Rule 16(b)(1).5
Williams filed two motions in limine on January 20,
2016 to exclude the testimony of Dr. Bivens and to exclude
testimony from the complaining witness, T.Y., consisting of out-
of-court statements that Williams sexually assaulted him.
4 Although defense counsel did not cite HRPP Rule 16(b)(1)(iii) in
his October 20, 2014 letter, defense counsel’s Opening Brief suggests that he
was requesting an expert report pursuant to HRPP Rule 16.
5 While it is true that the prosecutor did not provide the defense
with a report of Dr. Bivens’ anticipated expert testimony, there is no
evidence that such a report existed to disclose in the first place.
Therefore, it is not clear that the State violated HRPP Rule 16(b)(1)(iii).
We note that the Federal Rules of Criminal Procedure Rule 16(a)(1)(G), unlike
HRPP Rule 16(b)(1)(iii), provides: “At the defendant’s request, the
government must give to the defendant a written summary of any testimony that
the government intends to use under Rules 702, 703, or 705 of the Federal
Rules of Evidence during its case-in-chief at trial.” The Hawai‘i Penal Rules
Committee should consider whether a similar amendment would be appropriate to
address situations like the one in this case.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The circuit court held a hearing on Williams’ motions
in limine on April 11, 2016.6 The court denied the defense’s
motion as to Dr. Bivens’ testimony, but granted the motion as to
the alleged out-of-court statements T.Y. made to S.S. and C.O.,
T.Y.’s friends from school. The court stated that T.Y.’s
alleged statements would be excluded and “[u]nless the
government can come up with a hearsay exception, we litigate the
matter outside the presence of the jury” and the court would
“generally” not allow the statements. In seeking clarification,
the prosecutor asked the court, “[w]ith respect to the actual
statements made, will the court permit these witnesses to
testify to any changes in behavior that these witnesses observed
in their friend?” The trial judge responded, “I think that they
can testify to what is relevant in terms of what they saw and --
what they saw and heard, not meaning statements.”
The prosecution filed its witness list and amended
witness list, which did not identify the subject matter to which
the prosecution’s witnesses would be testifying; at no time
prior to trial did the prosecutor disclose to the defense
Williams’ out-of-court oral statements to T.Y.’s father
(“C.Y.”).
Williams identified eleven witnesses in his filed
witness list that included himself, his wife, his two children,
6 The Honorable Karen S.S. Ahn presided.
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
six non-family character witnesses to testify as to Williams’
“nonviolent and non-aggressive character, honesty and integrity”
and “the absence of any indications of sexual deviancy or
behaviors that are consistent with the allegations against him,”
and one non-family witness to testify as to her observations of
T.Y. Of the eleven witnesses listed by the defense in its
witness list, in addition to the defendant, the court permitted
six witnesses to testify. Of those six witnesses, three were
the defendant’s family members and three were non-family
members, including two non-family character witnesses. The four
excluded witnesses were all male non-family character witnesses.
B. Trial Proceedings
1. Opening Statements
Several times during her opening statement, the
prosecutor referenced out-of-court communications T.Y. allegedly
had with his friends. The defense initially objected on the
grounds of hearsay and that the statements were precluded by the
defense’s motion in limine:
[DEFENSE]: Judge, these are the alleged statements to two
of his friends which you said is [sic] not coming in.
[PROSECUTOR]: I’m not going into the contents of the
statement, your Honor. I’m just going to say that he
talked to two of his friends. That’s it.
THE COURT: Okay.
[DEFENSE]: Well, talked about what? I mean, it’s
irrelevant if he talked to his friends. And tell them
what? It’s basically suggesting something that she can’t
go into and we can’t go into.
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
[PROSECUTOR]: I’m not bringing in -- even with the
witnesses, when they testify on the stand, they’re very
aware that they’re not to go into what [T.Y.] told them,
the exact statement. I’m just going to say that he
disclosed to two friends.
[DEFENSE]: Disclosed what?
[PROSECUTOR]: What this man did to him.
[DEFENSE]: Judge, that’s absolutely forbidden.
THE COURT: How are you going to say it, he talked to two
friends?
[PROSECUTOR]: That he told two close friends what this man
did to him.
THE COURT: Okay. Hearsay involves actual statements.
. . . .
THE COURT: But their argument is that it comes very close
to suggesting to the jury that he told them exactly what
happened. I think you can -- I think you can put forth, if
you’re going to bring it out, that he talked to two friends
--
[PROSECUTOR]: Okay. About the incident.
THE COURT: -- but that’s about it.
[DEFENSE]: Judge, I object. It still creates an inference
that he talked to them about this event, and we can’t
examine him without opening the door. And she should not
be allowed to. Talked to them about what?
THE COURT: Your objection is preserved. Let’s move on.
Several minutes later, the prosecutor again referenced
out-of-court communications T.Y. allegedly had with his friend,
S.S., via a disappearing message on a computer application:
One of [T.Y.’s] friends will tell you about how she and
[T.Y.] sat in [T.Y.’s] room the night she learned about
what happened. She will tell you how [T.Y.] could not look
at her, how [T.Y.] could not say what happened. He could
only write it, and write it he did. Using his computer, he
sent her a message.
The defense objected, this time alleging that the
prosecutor had not previously disclosed the statements to the
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
defense during discovery, as required by HRPP Rule 16(b)(1).7
During a bench conference, the prosecutor stated, “we don’t have
[the message] either. It’s one of those messages that
disappears. It’s like through social media but I guess it just
disappears after you log off, so we don’t have it either. I
don’t know the contents of the message.”8 The court sustained
the objection in the presence of the jury and instructed,
“Ladies and gentlemen, the last assertion by the State about an
alleged computer message is stricken from the record. You will
disregard it.”
The defense denied that any sexual contact occurred
between T.Y. and Williams. The defense contended that the
charges were based on fabrications T.Y. made up in retaliation
against Williams’ minor daughter, J.W., for rejecting his
7 The record reflects the following exchange during a bench
conference:
[DEFENSE]: Judge, we’re hearing about this message for the
first time. It’s never been disclosed to us.
THE COURT: The computer message?
[DEFENSE]: Yes. Never been disclosed.
8 Given that the prosecution did not have a written or recorded
copy of the computer message, it is not clear that the State violated HRPP
Rule 16(b)(1)(i), which requires disclosure of “the names . . . of persons
whom the prosecutor intends to call as witnesses in the presentation of the
evidence in chief, together with any relevant written or recorded
statements[.]” (Emphasis added.)
Regardless, the court sustained the defense’s objection on the
grounds of nondisclosure, stating, “Okay. If it wasn’t -- if the fact that a
computer message was created was not divulged, I think it’s fair for the
defense to object. I’m going to sustain that objection. I’ll strike that last
statement referring to the computer message.” (emphasis added).
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
romantic interest in her. The defense stated that J.W., who was
two years older than T.Y., “had moved on” and that T.Y.’s and
J.W.’s friendship had ended. According to the defense, because
there was no physical evidence or other witnesses, the case
boiled down to credibility: whether the jury believed Williams
or T.Y.
2. Dr. Bivens’ Expert Witness Testimony
The State’s expert witness, Dr. Bivens, is a licensed
clinical psychologist with a private practice on Kauaʻi. Before
testifying, Dr. Bivens was informed that T.Y. was male and in
his early teenage years, but attested that “[o]ther than that
. . . I don’t know anything else about anything that’s been
alleged or anything about this particular case.” Dr. Bivens
testified that victims of sexual abuse who are under the age of
sixteen typically do not disclose the abuse “for a very long
time,” a concept known as “delayed reporting.” Dr. Bivens
explained that many of these victims do not want to disclose
abuse due to “embarrassment and shame,” “fear of harming the
people around them” such as upsetting their parents or getting
the abuser in trouble, fear of being blamed, or fear of losing
the relationship with the abuser. Dr. Bivens testified that
male children in particular may delay reporting out of “concern
that they might be accused of being gay or be teased for being
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
gay[,]” and often have “the most difficult time disclosing
[sexual abuse].”
3. Previously Barred and Undisclosed Testimony
At trial, T.Y. testified that Williams sexually abused
him on two occasions: the first incident occurring on or about
March 9, 2012 to and including March 26, 2012; and the second
incident occurring on or about May 1, 2012 to and including June
11, 2012. T.Y. testified that he told two friends, C.O. and
S.S., about the two incidents of abuse.
During S.S.’s testimony, the prosecutor asked S.S. to
describe the “sudden change in [T.Y.]’s relationship with
[J.W.]” S.S. responded that she asked T.Y. why he and J.W. were
not “hanging out anymore” when they “used to be together all the
time.” The defense objected on hearsay grounds. During a bench
conference, the prosecutor claimed that S.S.’s testimony bore on
T.Y.’s credibility. The prosecutor argued:
[PROSECUTOR]: Right. And so [T.Y.] -- [T.Y.] wasn’t able
to verbalize what happened to him, so instead he just typed
it on the computer. And these instant messages, we don’t
have them because it disappeared, but I can have [S.S.]
explain the nature of the program that they were using at
the time that -- so I’ve never seen these messages. No one
has them, the disclosure, so I’m not going to go into
specifically what [S.S.] wrote but that she did -- this is
the way in which she learned about what happened to him,
which also goes to explain the changes that she observed in
[T.Y.].
Although the court had previously sustained--during
the prosecutor’s opening statement--the defense’s objection to
the prosecutor’s reference to the computer messages, stricken
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the reference from the record, and instructed the jury to
disregard the reference, the court now allowed S.S. to respond
to the prosecutor’s question about why T.Y. was no longer
friends with J.W., without describing what T.Y. said in the
messages:
[PROSECUTOR]: But [S.S.] can explain the computer, the
program that they were using to communicate. I won’t have
her go into specifically what she read but just that this
was the method in which she learned about what happened to
[T.Y.].
THE COURT: All right.
[DEFENSE]: I think what you previously said is the limit
to which they can go. We had no idea about any of this.
It was never disclosed to use. If the prosecutor knew
about it, she had a duty to tell us. It certainly does get
into contents, and I think that they were obligated to
produce them.
THE COURT: Well, the objection -- I think what the defense
is saying, they continue to object. So I’ll let you ask
her, I asked him about it, and he didn’t answer me and he
typed something. That’s it. Okay?
The prosecutor asked S.S., “Without telling us exactly
what he wrote, if you can describe at that time [T.Y.]’s
emotional state when you first asked him this question.” S.S.
then told the jury:
I specifically remember him having this sort of distant
stare and just recalling it, and immediately when he
started thinking about it, he turned around, and he didn’t
want me to see it. But he didn't want to tell me at first,
so I kept pestering him.
And eventually he told me to go on this messenger app
called Recall. It doesn’t work anymore because they closed
down the program, but basically he had to type to me
through this messenger app when I’m standing right behind
him and receiving the messages through my own computer
because he couldn’t physically talk to me about it. And he
would tell me the story through that, and I could just feel
the atmosphere around us. It was so heavy and dark, and he
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
didn’t say a word for at least ten minutes after he wrote
everything out.
The prosecutor then asked, “After that night when you
and [T.Y.] were both sitting at your computers, did you have an
idea of who was involved and what had happened to [T.Y.]?” S.S.
responded:
Yes. Well, he specifically told me what happened, so I was
just -- I couldn’t really take in all the information
because it just didn’t seem like it happened. Like, I
couldn’t believe it, but I -- I know that he wasn’t lying,
obviously. He would tell me the truth. And it was just
bizarre that he wouldn’t like talk to [J.W.], and that made
a lot of sense after that.
(Emphases added.)
The prosecutor also elicited previously undisclosed
testimony from C.Y., T.Y.’s father, about Williams. When asked
by the prosecutor about his interactions with the Williams
family, C.Y. recalled a “kind of an odd incident” during which
Williams kept asking C.Y. about T.Y.:
[Williams] insisted on me going down to their house in Laie
to look at a roofing problem because I’m a roofing
contractor. And I said, “I’ll meet you down there.” And
he goes, “No, no, I’m going to ride with you.” And this is
from Kaneohe. And I said, “Well, I have other estimates to
do down in Kahuku. Why don’t you just meet me down there.”
And he goes, “No, I need to ride with you.” I said, “All
right.” And in 40 years of roofing, I’ve never taken a
potential customer on that kind of a jaunt. So we got down
to the house, and all the way down all he could talk about
was [T.Y.].
(Emphasis added.)
The defense objected, and argued that the prosecution
had violated HRPP Rule 16(b)(1)(ii) by failing to disclose the
substance of Williams’ oral statements prior to trial:
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
[DEFENSE]: Judge, if there are any statements of my client
that are being attributed to him now, it’s certainly the
first time we’re hearing about them. We made a request for
discovery of any statements which were made by my client.
We have no idea what these statements are.
The prosecutor argued that she did not know
specifically what Williams said to C.Y. beyond generally talking
about T.Y. The court rejected the prosecutor’s justification
and noted that Williams’ statement to C.Y. was encompassed by
HRPP Rule 16(b)(1)(ii)’s language requiring disclosure of “any
written or recorded statements and the substance of any oral
statements made by the defendant.” Citing HRPP Rule 16, the
court ultimately sustained the objection as to anything Williams
said during the car ride with C.Y.:
[PROSECUTOR]: Judge, I don’t have any statements either
other than [C.Y.] is just telling us about the last
incident that he had with Mr. Williams and going for a ride
and him talking about [T.Y.]. I don’t know specifically
anything that pertains to this case other than that he
wanted to talk about [T.Y.].
[DEFENSE]: Then it’s irrelevant.
THE COURT: Well, I don’t know. It’s an admission, but
Rule 16 does require that --
[PROSECUTOR]: If it’s any written or recorded statements,
your Honor.
THE COURT: -- and the substance of any oral statements
made by the defendant together with the names and last
known addresses. So if there’s an objection, under Rule 16
I'm going to have to --
[PROSECUTOR]: He has an opportunity to cross-examine the
witness, your Honor.
THE COURT: Well, we’re talking about a Rule 16 problem,
and if there’s an objection, I don’t think I have much
choice but to at this point bar it.
[PROSECUTOR]: Even if it’s not exculpatory, your Honor,
the State didn’t violate --
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
THE COURT: The current Supreme Court is going to come down
very hard on these. We just got a murder conviction
overturned on a very complicated murder for one statement
that the prosecutor asked about. That was it. Actually,
that was the ICA, but it’s because they are being very
strict.
So I’m going to -- there’s been an objection, so you
can’t go into these statements unless you’ve disclosed at
least the substance of them.
[PROSECUTOR]: So I can’t go into the statement, but I can
go into the car ride without whatever he had to talk about?
THE COURT: Yeah.
[PROSECUTOR]: Okay.
(Emphases added.)
Despite the court’s ruling sustaining the defense’s
objection to C.Y.’s testimony about his conversation with
Williams, the prosecutor continued questioning C.Y. about the
conversation, the defense objected two more times, and the court
sustained both objections. However, the court did not instruct
the jury to disregard the answers given by Williams, or
otherwise provide the jury with a curative instruction.
4. Cross-examination of Defense Witnesses
The defense called three female non-family character
witnesses to the stand: two--Malia Kaʻai-Barrett and Laura
Morgan--to testify as to Williams’ “nonviolent and non-
aggressive character, honesty and integrity” and “the absence of
any indications of sexual deviancy or behaviors that are
consistent with the allegations against him;” and one--Autumn
Butler--to testify as to T.Y.’s relationship with J.W. and
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
T.Y.’s motive to fabricate his allegations against Williams.
During cross-examination of Kaʻai-Barrett, Butler, and Morgan,
the prosecutor asked all three witnesses their opinion about
Williams’ alleged conduct: “sucking a child’s penis is not
something you would expect to see in public; right?” The
defense objected in only one instance, and the court sustained
the objection as being beyond the scope of direct examination.
5. Jury Instructions
At the close of all evidence, the circuit court
instructed the jury that “[t]rial procedures are governed by
rules. When a lawyer believes that the rules require it, it is
his or her duty to raise an objection. It is my responsibility
to rule on such objections. You must not consider objections
made by lawyers in your deliberations.” The circuit court also
instructed the jury that it “must disregard entirely any matter
which the Court has ordered stricken.”
6. Closing Arguments
During her closing argument, the prosecutor accused
the defense witnesses, who were mostly family members, of
collaborating to create false testimony. The prosecutor claimed
that the defense witnesses had two years to collaborate and
figure out what they were going to say in court.
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
7. Motion for Judgement of Acquittal or New Trial
The jury found Williams guilty on all counts.
Williams moved for a judgment of acquittal or a new trial on the
basis of prosecutorial misconduct and insufficiency of the
evidence. The circuit court9 denied Williams’ motion. On
September 14, 2016, the circuit court sentenced Williams to a
mandatory twenty-year term of incarceration and denied Williams’
motion for bail pending appeal.
C. Appellate Proceedings
1. ICA Appeal
Williams appealed his conviction to the ICA,
contending that: the prosecutor committed misconduct before and
during trial that violated Williams’ constitutional right to a
fair trial; the circuit court erred by permitting testimony of
out-of-court statements; the circuit court erred by permitting
Dr. Bivens to testify; the circuit court erred by denying
Williams’ Motion for Judgment of Acquittal and Motion for a New
Trial on the grounds of insufficient evidence of the dates of
the offenses; and the circuit court erred by limiting the number
of character witnesses permitted to testify in Williams’
defense. The ICA affirmed Williams’ conviction, holding that
the only instance of prosecutorial misconduct occurred when the
9 The Honorable Glenn J. Kim presided at the hearing on the Motion
for Judgement of Acquittal or New Trial and at sentencing.
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
prosecutor failed to disclose Williams’ alleged statements to
C.Y. to the defense prior to trial. State v. Williams, 146
Hawai‘i 116, 117, 456 P.3d 189, 190 (App. 2020). However, the
ICA held the misconduct to be harmless error. Id.
2. Certiorari Application
Williams filed an application for writ of certiorari
with this court on May 1, 2020. In his application, Williams
alleged that the ICA erred by concluding that the prosecutor’s
misconduct did not deprive him of a fair trial. Williams
contended the ICA also erred by affirming circuit court rulings
that: permitted improper and previously undisclosed evidence--
including out-of-court statements made by the complaining
witness and the substance of out-of-court statements made by
Williams--to be presented at trial; limited the number and type
of witnesses who could testify on Williams’ behalf; and
concluded there was sufficient evidence upon which to sustain
Williams’ conviction. Williams’ application for writ of
certiorari was granted.
II. STANDARDS OF REVIEW
A. Motion for A New Trial
The granting or denial of a motion for new trial is within
the sound discretion of the trial court and will not be
disturbed absent a clear abuse of discretion. It is well-
established that an abuse of discretion occurs if the trial
court has clearly exceeded the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant.
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
State v. Austin, 143 Hawaiʻi 18, 29, 422 P.3d 18, 29 (2018)
(internal quotation marks, brackets, and citations omitted).
“As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of the trial
court and will not be disturbed absent a clear abuse of
discretion.” State v. Kim, 103 Hawai‘i 285, 290, 81 P.3d 1200,
1205 (2003). “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 litigant.” Id. (citing State v. Furutani, 76 Hawai‘i 172,
178–79, 873 P.2d 51, 57–58 (1994)).
B. Admissibility of Evidence
Different standards of review must be applied to trial
court decisions regarding the admissibility of evidence
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard should be applied in the case of those rules of
evidence that require a “judgment call” on the part of the
trial court.
Kealoha v. Cty. of Haw., 74 Haw. 308, 319-20, 844 P.2d 670, 676
(1993).
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
19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
complained of might have contributed to the conviction.” State
v. Pacheco, 96 Hawai‘i 83, 93, 26 P.3d 572, 582 (2001) (internal
quotation marks and citation omitted).
If there is a reasonable possibility that the
prosecutorial misconduct might have contributed to the
conviction, the misconduct is not harmless beyond a reasonable
doubt and the defendant is entitled to a new trial. Pacheco, 96
Hawai‘i at 93, 26 P.3d at 582. “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. Conroy, 148 Hawai‘i 194, 201, 468
P.3d 208, 215 (2020) (internal brackets omitted) (quoting State
v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992)).
D. Sufficiency of Evidence
In reviewing a challenge to the sufficiency of the
evidence, “[e]vidence adduced in the trial court must be
considered in the strongest light for the prosecution[.]” State
v. Kalaola, 124 Hawai‘i 43, 49, 237 P.3d 1109, 1115 (2010)
(quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241
(1998)). “The test on appeal is not whether guilt is established
beyond a reasonable doubt, but whether there was substantial
evidence to support the conclusion of the trier of fact.” Id.20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
III. DISCUSSION
A. Prosecutorial Misconduct Was Not Harmless Beyond a
Reasonable Doubt.
The constitutions of the United States and the State
of Hawaiʻi guarantee every individual accused of a crime the
fundamental right to a fair trial. See U.S. Const. amend. VI;
Haw. Const. art. I, § 14. “Prosecutorial misconduct may provide
grounds for a new trial if the prosecutor’s actions denied the
defendant a fair trial.” State v. Pasene, 144 Hawai‘i 339, 364,
439 P.3d 864, 889 (2019) (quoting Agrabante, 73 Haw. at 198, 830
P.2d at 502). In reviewing whether prosecutorial misconduct
deprived the defendant of a fair trial, we consider three
factors: “(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.” Pasene, 144 Hawai‘i at 364, 439
P.3d at 889. “Misconduct requires vacating a conviction when,
in light of these factors, ‘there is a reasonable possibility
that the error complained of might have contributed to the
conviction.’” State v. Underwood, 142 Hawai‘i 317, 325, 418 P.3d
658, 666 (2018) (emphasis added) (quoting State v. Rogan,
91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999)). When no single
error or prejudicial remark constitutes prosecutorial
misconduct, “the cumulative weight of such errors may create an
atmosphere of bias and prejudice which no remarks by the trial
21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
court could eradicate.” Pasene, 144 Hawai‘i at 364, 439 P.3d at
889 (quoting State v. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336,
338 (1973)).
In the present case, the cumulative effect of the
prosecutor’s misconduct deprived Williams of a fair trial.
Applying the three factors to determine whether the violation of
Williams’ right to a fair trial is harmless, we conclude that it
was not. See, e.g., State v. Conroy, 148 Hawai‘i 194, 204, 468
P.3d 208, 218 (2020).
1. Nature of the conduct
Under the first factor--the nature of the prosecutor’s
misconduct--“we consider ‘the nature of the challenged conduct
in relation to our criminal justice system generally and the
special role of the prosecutor specifically.’” Pasene, 144
Hawai‘i at 365, 439 P.3d at 890 (quoting Underwood, 142 Hawai‘i
at 325, 418 P.3d at 666). In this case, the nature of the
misconduct committed by the prosecutor included her:
(1) failure to disclose out-of-court statements made by the
defendant; (2) introduction at trial of out-of-court statements
made by the complaining witness that had been barred pretrial by
the defense’s motion in limine; and (3) improper and lurid
questioning of witnesses at trial.10
10 We also note that the prosecutor, during her closing argument,
accused defense witnesses of collaborating to create false testimony.
(continued . . .)
22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
a. The prosecutor’s failure to disclose statements
made by Williams violated HRPP Rule 16(b)(1) and
constituted prosecutorial misconduct.
HRPP Rule 16(b)(1)(ii) requires disclosure of “any
written or recorded statements and the substance of any oral
statements made by the defendant” prior to trial. We have
recognized the importance of the pretrial disclosure process,
stating, “An essential component of the basic tools is the
process of discovery, which promotes fairness in our adversary
system.” State v. Pitts, 146 Hawai‘i 120, 136, 456 P.3d 484, 500
(2019) (internal quotation marks and citation omitted).
In the present case, at trial, C.Y., the complaining
witness’ father, testified about an out-of-court conversation he
had with Williams during a long car ride where “all [Williams]
could talk about was [T.Y.]” This constituted a violation of
HRPP 16(b)(1)(ii), which requires disclosure of “the substance
of any oral statements made by the defendant” prior to trial.
Despite the court sustaining the defense’s continued objections,
the prosecutor continued questioning C.Y. about the
conversation. As the defense argued in its opening statement,
this case hinged on whether the jury believed T.Y. or Williams.
Williams’ interactions with T.Y. and the nature of their
relationship were critical to Williams’ claim that no sexual
(continued . . .)
Because this issue is not necessary to the resolution of this case, we
decline to consider whether it constitutes harmless error.
23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
contact occurred.11 Evidence that Williams had a fixation on or
an inappropriate level of interest in T.Y. might have prompted
the jury to believe that Williams harbored inappropriate
feelings toward T.Y. that he later acted upon, by committing the
offenses alleged by T.Y. Thus, the prosecutor’s violation of
HRPP Rule 16(b)(1)(ii) and questioning of C.Y. that elicited
testimony about previously undisclosed statements by Williams
constituted misconduct.
b. The prosecutor’s introduction of out-of-court
statements that had previously been barred by the
defense’s motion in limine constituted
prosecutorial misconduct.
This court has expressed concerns about prosecutorial
misconduct in cases where the defendant’s credibility is
particularly important. In Underwood, this court stated that
“[t]he potential for prejudice is particularly evident
where . . . the improper comments specifically concerned the
credibility of the testimony on which the case turned.” 142
Hawai‘i at 329, 418 P.3d at 670; see also Conroy, 148 Hawai‘i at
204, 468 P.3d at 218 (“Prosecutorial misconduct affecting the
issue of defendant’s intent was not harmless beyond a reasonable
11 Seven of the ten witnesses on Williams’ witness list (not
including Williams) were identified to testify about their “personal
observations of and interactions with [T.Y.],” T.Y.’s relationships with
various members of the Williams’ family, and T.Y.’s “motive to fabricate his
allegations” against Williams.
24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
doubt where the only witness to the altercation were the
defendant and the [complaining witness].”).
Here, the prosecutor introduced out-of-court
statements made by T.Y. via computer message that had been
barred pretrial.12 Evidence of T.Y.’s messages explaining to
S.S. the alleged abuse was material to Williams’ guilt and/or
punishment. T.Y.’s messages to S.S. allegedly revealed abuse
and thus greatly undermined Williams’ credibility and
corroborated the credibility of the only other witness who could
testify as to whether the acts did or did not occur: T.Y. The
effect of its introduction may have imparted to the jury that
because T.Y. told S.S. about the alleged abuse, he was credible.
Thus, the prosecutor’s introduction of out-of-court statements
that were barred by the court’s motion in limine ruling
constituted misconduct.
12 As discussed above, see supra note 7 and accompanying text, when
the prosecutor first referenced the computer messages in her opening
statement, the defense objected on the grounds that the messages had not been
previously disclosed. The court sustained the objection, citing the
prosecution’s failure to disclose the messages to the defense, though it is
not clear that the prosecution’s nondisclosure of the computer messages
violated HRPP Rule 16(b)(1)(i). See supra note 8. However, the court later
permitted the prosecutor to question S.S. about the computer messages during
direct examination, over the defense’s objections.
Regardless, the defense’s lack of knowledge about the computer
messages did not preclude the messages from being covered by the scope of the
pretrial motion in limine: the content of the computer messages clearly fell
within those statements covered by the motion, which sought to bar all out-
of-court statements made by T.Y. alleging that Williams sexually assaulted
him. In granting the defense’s motion, the court stated that T.Y.’s alleged
statements would be excluded, that “[u]nless the government can come up with
a hearsay exception, we litigate the matter outside the presence of the
jury,” and that the court would “generally” not allow the statements. Thus,
the prosecutor’s introduction of the evidence of the computer messages
constituted a violation of the motion in limine.
25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
c. The prosecutor’s lurid and inflammatory cross-
examination of defense witnesses constituted
prosecutorial misconduct.
“We have recognized that prosecutors ‘should not use
arguments calculated to inflame the passions or prejudices of
the jury[,]’ as ‘[a]rguments that rely on . . . prejudices of
the jurors introduce into the trial elements of irrelevance and
irrationality that cannot be tolerated.’” Pasene, 144 Hawai‘i at
370, 439 P.3d at 895 (alterations in original) (quoting Rogan,
91 Hawai‘i at 413, 984 P.2d at 1239). Even when the statements
are not calculated to inflame the passions or prejudices of the
jury, when the likely result is that the jury will be inflamed,
the statements are prejudicial. Id. (holding that the
prosecutor’s reference to Charles Manson “may lead the jury to
react based on emotion, rather than in an objective way, and
threatens to introduce an atmosphere of bias and prejudice as
the jury enters deliberation” (internal quotation marks and
citation omitted)).
Here, the prosecutor’s questioning of defense
witnesses--asking whether sucking a child’s penis was something
they expected to see in public--was improper. The prosecutor’s
questioning emphasized the lurid nature of the accusations and
was likely to elicit an emotional response from the jury. The
questions were rhetorical and called for immaterial information.
Because the prosecutor’s questioning of defense witnesses was
26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
calculated to inflame the passions or prejudices of the jury it
constituted misconduct.
2. The promptness or lack of a curative instruction
With regard to the second factor--the promptness of
the court’s curative instructions--we consider:
[T]he extent to which a trial court’s instruction to the
jury minimized or eliminated the prejudicial effect of
misconduct. When a court promptly addresses the
impropriety, a prosecutor’s improper remarks are generally
considered cured by the court’s instructions to the jury,
because it is presumed that the jury abided by the court’s
admonition to disregard the statement.
Pasene, 144 Hawai‘i at 365, 439 P.3d at 890 (internal citations,
quotation marks, and brackets omitted) (quoting Underwood, 142
Hawai‘i at 327, 418 P.3d at 668).
To determine whether the circuit court’s instructions
to the jury cured the risk of prejudice to the defendant, we
evaluate “whether the cumulative effect of prejudicial conduct
going to the issue of guilt is so strong that it overcomes the
presumption that the curative remarks of the court have rendered
the prejudicial remarks harmless.” State v. Pemberton, 71 Haw.
466, 476, 796 P.2d 80, 85 (1990). The Pemberton court held that
although a prosecutor’s improper statements and questioning of a
witness are typically cured by instructions to the jury to
disregard them in reaching a verdict, sometimes the improper
conduct can create an atmosphere of bias and prejudice that “no
remarks by the trial court could erase.” Id. (internal
27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
quotation marks and citation omitted). The Pemberton court held
that the cumulative effect of the prejudicial conduct in that
case was so pervasive that it overcame the presumption that
limiting instructions by the circuit court could render the
prejudicial remarks harmless. Id. (“[T]he fact that defense
counsel was repeatedly forced to object and the court repeatedly
forced to sustain those objections and to issue cautionary
instructions is likely to have had the reverse effect of
focusing the jury’s attention on that evidence and the fact that
it was being suppressed.”).
Similarly, in State v. Underwood, where the prosecutor
told the jury that “defense counsel tried to get the complaining
witness to make up some story,” we held that a jury instruction
failed to cure the prejudicial effect of the prosecutor’s
statement because: (1) “the instruction did not address the
problematic nature of the prosecutor’s statements”; and (2) “the
instruction was general in nature and was delivered to the jury
along with a large number of other standard instructions before
closing arguments began.” 142 Hawai‘i at 328, 418 P.3d at 669.
In the instant case, the circuit court’s general
limiting instruction delivered at the close of evidence failed
to cure the prejudicial effect of the prosecutor’s introduction
of out-of-court statements not produced to the defense prior to
trial. See Pemberton, 71 Haw. at 475-76, 796 P.2d at 84-85.
28
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
The jury heard the prosecutor elicit testimony from C.Y.
describing Williams’ unusual interest in T.Y. Although defense
counsel objected and the court advised the prosecutor during a
bench conference that the objection would be sustained, the
court did not sustain the objection in front of the jury.
Thereafter, the prosecutor immediately returned to questioning
C.Y. about the same subject in front of the jury. Defense
counsel objected again and the court sustained the objection,
but the court neither struck the testimony, nor gave a curative
instruction to the jury.
Two days later, the circuit court provided the jury
with a general instruction, stating,
Trial procedures are governed by rules. When a
lawyer believes that the rules require it, it is
his or her duty to raise an objection. It is my
responsibility to rule on such objections. You
must not consider objections made by lawyers in
your deliberations. . . . You must disregard
entirely any matter which the court has ordered
stricken.
As in Underwood, where a general instruction given
much later amidst various other instructions was not curative,
142 Hawai‘i at 328, 418 P.3d at 669, here also, the circuit
court’s general instruction was not curative. Also, because the
instruction was not promptly given when the prejudice occurred,
and was instead provided at the close of evidence with a barrage
of other instructions, the jury would not have known the
29
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
evidence or objections to which the court was referring.
Additionally, the prejudicial effect of C.Y.’s testimony and the
prosecutor’s continued questioning on subject matter the court
had sustained an objection to may have imparted to the jury that
T.Y.’s testimony was corroborated by C.Y., and, therefore, that
T.Y. was more credible than Williams. Thus, we cannot conclude
that the court’s general instruction cured the risk of prejudice
to Williams.
The circuit court’s specific instructions to the jury
regarding T.Y.’s computer messages to S.S. also failed to cure
the prejudicial effect of the prosecutor’s improper use of those
statements. The circuit court had ruled at the pretrial hearing
on the defense’s motion in limine that the State could not
introduce out-of-court statements made by T.Y. Yet, the
prosecutor referred to T.Y.’s computer messages during her
opening statement, even though the statements contained in those
messages were barred by the defense’s motion in limine.13 The
court struck from the record and instructed the jury to
disregard the prosecutor’s reference to the computer messages.
But despite the court’s ruling during the prosecutor’s opening
statement and the defense’s continued objections, the prosecutor
later introduced the same evidence of T.Y.’s computer messages
during her direct examination of S.S.
13 See supra note 12 and accompanying text.
30
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Prejudice caused by a prosecutor’s willful violation
of a court’s ruling on a motion in limine is not necessarily
overcome by a later limiting instruction. Pacheco, 96 Hawai‘i at
98, 26 P.3d at 587. In Pacheco, the defense filed a motion in
limine that sought to exclude at trial any evidence of the
defendant’s prior convictions. Id. at 88, 26 P.3d at 577.
Although the court granted the motion, the prosecutor referenced
defendant’s prior convictions during cross-examination and in
closing arguments. Id. at 98, 26 P.3d at 587. We held that the
prosecutor’s “willful violation of the circuit court’s in
limine ruling constituted prosecutorial misconduct,” and because
the circuit court failed to give a curative instruction during
cross-examination or closing arguments when the statements were
made, the prejudicial effect could not be overcome. Id.In Pacheco, the prejudice caused by the prosecutor’s
improper presentation of evidence in willful violation of the
court’s motion in limine ruling was not overcome because the
court failed to provide a prompt curative instruction. Id. at
98, 26 P.3d at 587. We face a similar situation here. As in
Pacheco, despite the court’s pretrial motion in limine ruling,
the prosecutor twice presented prejudicial evidence about T.Y.’s
computer messages to the jury: first, when she referenced the
messages in her opening statement, and again, when she
questioned S.S. about the messages during direct examination.
31
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Because the jury heard that T.Y. told S.S. about the alleged
abuse from both the prosecutor and S.S., and the court’s only
curative instruction to the jury was that the message was
“stricken” the first time it was introduced, after which it was
again introduced and remained introduced as evidence, we cannot
conclude that the prejudicial effect was overcome by a curative
jury instruction. See Pasene, 144 Hawai‘i at 371, 439 P.3d at
896 (“Attempts to refer to evidence that has been specifically
excluded by the circuit court . . . undermine[s] the integrity
of the criminal justice system.”).
With T.Y.’s and Williams’ credibility a central issue,
the improper introduction of previously barred evidence of
T.Y.’s computer messages might have left the jury with the
impression that T.Y. was more credible than Williams. If the
jury believed that T.Y. had previously told others about the
alleged abuse, testimony on T.Y.’s computer messages
corroborated and bolstered T.Y.’s testimony. And with Williams’
relationship with T.Y. another important issue, the improper
introduction of undisclosed statements by Williams evincing his
interest in T.Y. might have led the jury to disbelieve his claim
that no sexual contact occurred. Finally, there was no curative
instruction delivered by the court to address the prosecutor’s
blatantly lewd question--“sucking a child's penis is not
32
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
something you would expect to see in public, would you?”--posed
to three defense witnesses on cross-examination.
We therefore conclude that the circuit court’s
limiting instructions, and lack thereof, did not cure the
prejudicial effect of the prosecutor’s misconduct.
3. Strength or weakness of the evidence against Williams
“In considering the final factor, reviewing courts
weigh the evidence supporting the defendant’s conviction.”
Underwood, 142 Hawai‘i at 328, 418 P.3d at 669. “When evidence
is so overwhelming as to outweigh the inflammatory effect of the
improper comments, reviewing courts will regard the impropriety
as ultimately harmless.” Id. (internal quotation marks and
citation omitted). But “[w]hen it cannot be said beyond a
reasonable doubt that the same result would have been reached
absent the improper conduct . . . the defendant’s conviction
must be vacated.” Id. Critically, we noted that “[w]hen a
conviction is largely dependent on a jury’s determination as to
the credibility of a complainant’s testimony, [] the evidence of
the offense is not so overwhelming that it renders the
prosecutor’s improper statements harmless beyond a reasonable
doubt.” Id. at 325, 418 P.3d at 670 (internal quotation marks
and citation omitted). Where the complaining witness’ account
of the events is countered only by the defendant, the potential
for prejudice is especially heightened when prosecutorial
33
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
conduct affects the defendant’s credibility. Id. (noting that
the defendant’s conviction was “ultimately dependent on the
jury’s assessment of [the complaining witness’] credibility”
because “only the statements of [the complaining witness]
herself directly described the actual acts constituting the two
offenses”).
In this case, it cannot be said that the prosecutor’s
use of undisclosed and previously barred evidence and
inflammatory questioning of witnesses “did not contribute to the
jury’s determination of guilt.” Pasene, 144 Hawai‘i at 371, 439
P.3d at 896. As in Underwood, here, T.Y., the complaining
witness, was the only witness other than the defendant who could
describe the actual acts constituting the offenses. Thus,
T.Y.’s testimony constituted the most significant evidence
against Williams. The evidence against Williams was not so
overwhelming that it rendered the prosecutor’s misconduct--
improperly referencing and introducing evidence that had been
excluded by the defense’s pretrial motion in limine, improperly
introducing statements by Williams that had not been previously
disclosed to the defense, and improperly subjecting defense
witnesses to inflammatory questioning--harmless. Because there
is a reasonable possibility that the prosecutor’s misconduct
might have contributed to Williams’ conviction, the misconduct
was not harmless beyond a reasonable doubt.
34
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
After considering the inflammatory nature of the
prosecutor’s misconduct, the lack of prompt curative
instructions from the circuit court, and the relative weight of
the evidence supporting Williams’ conviction, we find that the
cumulative effect of the prosecutor’s misconduct created an
“atmosphere of bias and prejudice” that deprived Williams of a
fair trial. Pasene, 144 Hawai‘i at 364, 439 P.3d at 889. The
circuit court erred in denying Williams’ motion for a new trial
based on prosecutorial misconduct, and the ICA erred in
concluding that the prosecutor’s misconduct was harmless.
B. The Circuit Court Did Not Abuse Its Discretion When It
Limited the Number of Witnesses Who Could Testify on
Williams’ Behalf.
Williams alleges the circuit court abused its
discretion by limiting the number of witnesses permitted to
testify on Williams’ behalf. When a decision to allow a witness
to testify is based on Hawai‘i Rules of Evidence (“HRE”) Rule 403
(2016),14 it “require[s] a ‘judgment call’ on the part of the
trial court, [and is] reviewed for an abuse of discretion.”
Richie, 88 Hawai‘i at 37, 960 P.2d at 1245 (quoting State v.
Arceo, 84 Hawai‘i 1, 11, 928 P.2d 843, 853 (1996)). “An abuse of
14 HRE Rule 403 states, “Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
35
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
discretion occurs when the decisionmaker exceeds the bounds of
reason or disregards rules of principles of law or practice to
the detriment of a party.” State v. Vliet, 95 Hawai‘i 94, 107,
19 P.3d 42, 55 (2001) (quoting In re Water Use Permit
Applications, 94 Hawai‘i 97, 183, 9 P.3d 409, 495 (2000)).
In the present case, the circuit court did not abuse
its discretion in limiting the number of defense witnesses. The
defense sought to call ten witnesses other than the defendant,
seven of whom were non-family members. Of the six witnesses
permitted to testify, three were the defendant’s family members
and three were non-family members. Of the three non-family
witnesses, two testified as to Williams’ good character,15 and
all were women. All four witnesses excluded by the court were
male non-family character witnesses.
Williams raises particular concern before this court
that no male non-family character witnesses were permitted to
testify. However, defense counsel did not voice this specific
concern at trial when defense witnesses were being finalized.16
15 The third female non-family witness was Autumn Butler, a friend
of J.W.’s (Williams’ daughter) who also knew T.Y., who was permitted to
testify that T.Y. was jealous of J.W.
16 For example, the circuit court permitted one character witness to
testify as to Williams’ interaction with children. The defense selected
Malia Kaʻai-Barrett, a female non-family member who had observed Williams with
kids through his involvement with the Hawaiʻi Youth Opera Chorus. If the
defense wished to have a male non-family character witness, it could have
selected a potential witness who, according to the defense’s witness list,
had also observed Williams “regularly interacting with children” and who knew
(continued . . .)
36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
And the record does not evince a basis to conclude that gender
was a factor relevant to character testimony, or that the
court’s exclusion of these witnesses was based on their gender.17
In fact, at trial, defense counsel conceded, “We probably don’t
need the boy,” while referring to one of the male non-family
character witnesses18 that Williams now argues the circuit court
arbitrarily excluded. Defense counsel also posited that the
testimony of a second male non-family witness19 would largely
mirror that of the first male non-family witness:
[DEFENSE]: [ ] There are actually two [male non-family
witnesses], but they’re basically going to testify that
there were many opportunities for Mr. Williams to have
molested them or engaged in inappropriate behaviors with
them. And that didn’t happen, and they’ve basically
received no information or no reports that that ever
happened.
Significantly, these concessions by defense counsel
occurred before the circuit ruled, on relevance grounds, that it
(continued . . .)
Williams through New Hope Church, in lieu of Kaʻai-Barrett. However, the
defense did not propose this person as a witness.
17 Defense counsel did argue that it was important to have “a couple
of” non-family witnesses to “corroborate” the testimony of the family
witnesses. The defense was concerned that the prosecutor would imply to the
jury that the family witnesses “ha[d] a motive to lie” simply because
“they’re related to Mr. Williams and they love him.” However, the defense
did not specify that they wanted male non-family witnesses to testify, and,
as noted above, several female non-family witnesses testified at trial.
18 According to the defense’s witness list, this proposed witness
was the son of a family friend who had “been in and out of the [Williams]
house ever since he was a little boy.”
19 According to the defense’s witness list, this proposed witness
was a friend of Williams’ son “who spent significant time in the Williams’
family home including time alone with [Williams] and occasions when [T.Y.]
was present.”
37
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
would not permit the first male non-family witness to testify.
As defense counsel identified his list of proposed character
witnesses, the circuit court primarily expressed concern over
the growing number of witnesses and that the character evidence
was “becoming cumulative.”
Under HRE Rule 403, it is within the court’s
discretion to exclude the “needless presentation of cumulative
evidence.” “In order for evidence to be considered ‘cumulative’
for HRE [Rule] 403 purposes, it must be substantially the same
as other evidence that has already been received.” State v.
Pulse, 83 Hawai‘i 229, 247, 925 P.2d 797, 815 (1996) (citing Aga
v. Hundahl, 78 Hawai‘i 230, 241, 891 P.2d 1022, 1032 (1995)).
Thus, it was within the court’s discretion to exclude cumulative
evidence by limiting the number of witnesses who were all
testifying as to the same character traits. Aga, 78 Hawai‘i at
241, 891 P.2d at 1033 (finding it was not an abuse of discretion
to exclude the deposition testimony of a second doctor regarding
the decedent’s alleged hallucinations because such testimony did
not “offer a different opinion” than that already presented at
trial and “could be considered cumulative evidence”); see also
U.S. v. Dredd, 833 F. App’x 79, 81 (9th Cir. 2020) (noting that
the trial court “has latitude to exclude cumulative character
witnesses”).
38
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Here, five of the six non-family character witnesses
the defense sought to call would have testified as to Williams’
“honesty and integrity.” All six witnesses would have testified
as to Williams’ “nonviolent and non-aggressive character” and
“the absence of any indications of sexual deviancy or behaviors”
consistent with the allegations in this case. Nothing in the
record indicates the four excluded witnesses would have offered
a “different opinion” on Williams’ character than that attested
to by the witnesses the court permitted to testify; they would
have testified as to the same character traits in different
interpersonal settings.20 The court’s exclusion of these
witnesses did not prevent the defense from supporting the
character of the defendant, nor did it prevent testimony that
would supply a fact not available from other witnesses. Because
the testimony of the four excluded witnesses would have been
“substantially the same as other [character] evidence” offered
at trial, Pulse, 83 Hawai‘i at 247, 925 P.2d at 815, the circuit
court’s exclusion of these witnesses was not an abuse of
discretion.
20 For example, two of the excluded male non-family character
witnesses, along with Laura Morgan, who was permitted to testify, were listed
as “long time family friend[s]” of the Williamses. Another excluded male
non-family character witness was Williams’ “professional colleague.” All of
these witnesses would have offered similar opinion testimony as to Williams’
character.
39
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
C. Sufficient Evidence Existed to Convict Williams.
“This court will not overturn a conviction by a jury
if viewing the evidence in the light most favorable to the
prosecution, there is substantial evidence to support the
conclusion of the trier of fact.” Tetu, 139 Hawai‘i at 226, 386
P.3d at 863 (quotation marks and brackets omitted).
“Substantial evidence is credible evidence which is of
sufficient quality and probative value to enable [a person] of
reasonable caution to support a conclusion.” State v. Matavale,
115 Hawai‘i 149, 158, 166 P.3d 322, 331 (2007).
In the present case, there was substantial evidence
to convict Williams. The jury heard testimony from T.Y. that
Williams sexually assaulted him while he was a minor. State
witnesses S.S. and C.O. also testified as to their observations
of T.Y.’s emotional, nervous, and fidgety behavior when T.Y.
told them about the alleged assault. C.Y. testified as to the
changes in T.Y.’s behavior, including the decline in his
academic performance, during and after the alleged time frame
that the abuse occurred. Although Williams denied committing
the assault and several defense witnesses testified as to his
good reputation it is within the jury’s purview to believe one
witness over another. See State v. Jhun, 83 Hawai‘i 472, 483,
927 P.2d 1355, 1366 (1996) (“In a jury trial, the jury is the
trier of fact and, thus, is the sole judge of the credibility of
40
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the witnesses and the weight of the evidence.”). Thus, in
viewing the evidence in the light most favorable for the
prosecution, substantial evidence supported Williams’
conviction.
IV. CONCLUSION
For the foregoing reasons, the ICA’s March 3, 2020
judgment on appeal is vacated, the circuit court’s order denying
Williams’ motion for a new trial is vacated, and the case is
remanded to the circuit court for further proceedings consistent
with this opinion.
Eric A. Seitz, /s/ Mark E. Recktenwald
(Della Au Belatti,
Gina Szeto-Wong, /s/ Paula A. Nakayama
Jonathan M.F. Loo, and
/s/ Sabrina S. McKenna
Kevin A. Yolken, with him
on the briefs) for /s/ Michael D. Wilson
petitioner/defendant-appellant
/s/ Gary W.B. Chang
Sonja P. McCullen for
respondent/plaintiff-appellee
41