State v. Pasene. , 439 P.3d 864 ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
22-APR-2019
07:51 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
IOSEFA MEAFUA PASENE,
Petitioner/Defendant-Appellant and
ZORRO R. RYE, aka Zorro Ramon Rye, Respondent/Defendant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 09-1-0472)
APRIL 22, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE VIOLA, IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY RECKTENWALD, C.J.
The right to a fair trial, guaranteed to criminal
defendants by both the Constitution of the United States and the
Constitution of the State of Hawaii, is a fundamental principle
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upon which our justice system is built. U.S. Const. amend. VI;
Haw. Const. art. I, § 14. In the instant case, we are called
upon to determine whether multiple instances of improper
prosecutorial conduct cumulatively jeopardized the defendant’s
right to a fair trial.
Iosefa Meafua Pasene was charged with Murder in the
Second Degree and Carrying or Use of Firearm in the Commission of
a Separate Felony. After two prior trials resulted in mistrials
due to hung juries, Pasene was convicted of both offenses in a
third jury trial held by the Circuit Court of the First Circuit
(circuit court).1 The Intermediate Court of Appeals (ICA)
affirmed.
On certiorari, Pasene challenges the circuit court’s
rulings: (1) denying his pre-trial Moriwake motion to dismiss;
(2) permitting a Honolulu Police Department (HPD) detective to
testify as to why another suspect was ruled out; (3) admitting
cell phone site records into evidence; (4) admitting evidence of
his meetings and transactions with an undercover HPD officer; (5)
denying his request to excuse a juror; and (6) denying his
motions for mistrial and motion for a new trial due to
prosecutorial misconduct.
Although the first five issues are without merit, we
1
The Honorable Richard W. Pollack presided over the first jury
trial. The Honorable Rom A. Trader presided over the second and third jury
trials.
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hold that the cumulative effect of the prosecutor’s improper
conduct was so prejudicial as to jeopardize Pasene’s right to a
fair trial. We therefore vacate Pasene’s convictions and remand
this case to the circuit court for further proceedings consistent
with this opinion.
I. BACKGROUND
Pasene, Cedro Muna (Muna), and Antonius Paul Toloai
(Toloai) were released from police custody in the early hours of
March 28, 2009, after being arrested the previous afternoon. At
the time of their release, Pasene and Muna were dressed alike and
had similar physical characteristics, other than the fact that
Pasene had a short beard, while Muna did not.2
Later that morning, at around 4:00 a.m., Joseph
Peneueta (Peneueta) and several others were gathered outside the
Pauahi Recreation Center in Chinatown. A blue Buick sedan drove
up to the group and stopped in front of them. Two men, each
carrying a firearm, exited the car and advanced toward Peneueta.
They shot Peneueta several times, killing him.3 Roughly two
2
Photos taken by HPD officers the previous afternoon show Pasene
and Muna wearing plain white t-shirts with short mustaches and long hair.
Pasene was wearing black shorts and white shoes, while Muna was wearing long
black pants and gray shoes. Contemporaneous police records describe Pasene as
a 21-year-old Samoan male with black hair and brown eyes, standing 6’2” tall,
and weighing 250 pounds. Police records from the same time period describe
Muna as a 22-year-old Samoan male with black hair and brown eyes, standing
6’1” tall, and weighing 240 pounds.
3
The medical examiner testified that Peneueta died “as a result of
heavy bleeding due to injuries to his vital organs caused by . . . gunshot and
shotgun injuries.” All were fatal wounds.
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hours later, a blue Buick sedan was reported burning just outside
of Wahiawā.
A. Pre-trial Proceedings
Pasene was indicted by a grand jury in connection with
Peneueta’s killing and charged with, inter alia, Murder in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 707-701.5 (2014), and Carrying or Use of Firearm in the
Commission of a Separate Felony, in violation of HRS § 134-21
(2011). Pasene was tried a total of three times for these
crimes.
1. Moriwake Motion to Dismiss
After his first two trials resulted in mistrials due to
the juries’ inability to reach unanimous verdicts, Pasene filed a
motion to dismiss his indictment with prejudice, pursuant to
State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982). The Moriwake
court set forth the following six factors for a trial court to
consider in determining whether to dismiss an indictment after
one or more hung jury mistrials:
(1) the severity of the offense charged; (2) the
number of prior mistrials and the circumstances of the
jury deliberation therein, so far as is known; (3) the
character of prior trials in terms of length,
complexity and similarity of evidence presented; (4)
the likelihood of any substantial difference in a
subsequent trial, if allowed; (5) the trial court’s
own evaluation of relative case strength; and (6) the
professional conduct and diligence of respective
counsel, particularly that of the prosecuting
attorney.
Moriwake, 65 Haw. at 56, 647 P.2d at 712-13.
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The circuit court considered each of these factors in
turn. First, with regard to the severity of the offenses
charged, the circuit court noted that the charges facing Pasene
were “among the most serious there are . . . clearly cut[ting]
against a dismissal.” Second, with regard to the number of
mistrials and the circumstances of the jury deliberations
therein, the circuit court opined that “there were somewhat
dissimilar circumstances,” apparently referencing the fact that
the final jury tally was 9 to 3 in favor of guilty for the first
trial and 9 to 3 in favor of not guilty for the second trial.
The circuit court determined this factor thus weighed against
dismissal. Third, the circuit court found that each of the two
trials lasted between 3 and 4 weeks, and the evidence presented
was largely similar, favoring dismissal.
Zorro Ramon Rye (Rye) was tried as Pasene’s co-
defendant in the first two trials, but was acquitted at the
conclusion of the second trial. The circuit court noted that the
dynamic of the case changed as a result of Rye’s acquittal and
determined that the fourth Moriwake factor therefore cut against
dismissal. With regard to the fifth Moriwake factor, the circuit
court stated that its evaluation of the relative strength of the
case cut against dismissal, as it found “ample evidence” for a
jury to reach a unanimous decision. Finally, the circuit court
opined that the professional conduct and diligence of counsel did
not weigh for or against dismissal.
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Finding that the only Moriwake factor weighing in favor
of dismissal was the character of the prior trials in terms of
length, complexity and similarity of the evidence presented, the
circuit court denied Pasene’s motion to dismiss and set the case
for a third trial.
2. Admissibility of Cell Phone Site Records
Pasene filed Motion in Limine No. 3, seeking to exclude
from evidence cell phone site records associated with a specific
phone (the Phone). The cell phone site records were produced by
Vince Monaco (Monaco), a network engineering manager and
custodian of records for Mobi PCS (Mobi). Pasene filed similar
motions in limine prior to the first and second trials. It
appears that in reaching its ruling on Motion in Limine No. 3,
the circuit court relied on Monaco’s testimony from the first
trial, as well as its prior rulings.
The cell phone site records listed the following
information for each call placed or received by the Phone from
March 27, 2009 to April 3, 2009: time and date of call
initiation; phone number connected to; call duration; and street
address of the cell tower utilized to connect the call. As a
result, the records purport to show the general location of the
Phone at various times on the date of Peneueta’s killing. Under
the State’s theory of the case, Pasene was the Phone’s primary
user.
In the first trial, Monaco testified that he produced
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the records pursuant to a subpoena, using a program that he
created. When prompted by Monaco, the program compiled
information from call records associated with the Phone and a
cell site database, both generated and maintained by Mobi.
Although Monaco could not say that the program was widely
accepted within the cellular service industry, he testified that
Mobi utilizes the same process of combining information in call
records and the cell site database in its regularly-conducted
troubleshooting and quality-control activities. Monaco further
testified that the process is simple enough to be performed
manually, and was in fact done manually prior to the creation of
his program.
Monaco testified that Mobi’s call records are recorded,
generated, and maintained by computers, and that the accuracy of
the records is important to Mobi. Monaco added that the switch
used to generate Mobi’s call records is fully redundant to
prevent errors and alarmed to alert the operator of any errors
that do occur. In addition, Monaco stated that the switch’s
manufacturer guaranteed it to work “99.999 percent of the time,”
but admitted that he did not know whether the switch was ever
tested for accuracy or error.
Motion in Limine No. 3, filed prior to the third trial,
was identical to a motion in limine that Pasene filed prior to
the second trial. The motions challenged the admissibility of
the cell phone site records as business records under Hawaii
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Rules of Evidence (HRE) Rule 803(b)(6), arguing that the records
were not kept in the ordinary course of business and that the
methodology used to create the records did not meet the
foundational requirements of State v. Montalbo, 73 Haw. 130, 828
P.2d 1274 (1992).
The circuit court denied Pasene’s motion in limine
before the second trial and allowed the cell phone site records
to be admitted as business records under Hawaii Rules of
Evidence (HRE) Rule 803(b)(6) (2016). In reaching its ruling,
the circuit court found that Mobi kept “information and data
regarding its equipment and systems, including the cell phones,
as well as the cell towers, as part of its regular business and
that . . . information or data . . . is recorded at or near the
time of the event.” It explained that compiling clearly
admissible data into a report in response to a subpoena did not
“cause it to run afoul [of] the prohibition against records
prepared . . . in anticipation of litigation.” Furthermore,
although the circuit court acknowledged that the records are “not
the type that are normally generated in connection with [Mobi’s]
business,” and were produced in preparation for trial, it found
“no indication whatsoever that [the] records or reports lack
trustworthiness in any way.”
The circuit court affirmed its ruling on Pasene’s prior
motion and denied Motion in Limine No. 3, allowing the cell phone
site records to be admitted into evidence for purposes of the
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third trial.
3. Admissibility of Testimony Regarding Meetings and
Transactions With Undercover HPD Officer Le
Prior to trial, Pasene also filed Motion in Limine No.
4, seeking to exclude from evidence testimony pertaining to drug-
related meetings and transactions that occurred between Pasene
and undercover HPD Officer Khan Le (Officer Le) in the three
weeks leading up to Peneueta’s shooting. Pasene argued that
testimony regarding the nature of the meetings and transactions
constituted evidence of prior bad acts. Asserting that the
State’s only legitimate purpose for introducing the evidence was
to link Pasene to the Phone, defense counsel offered to stipulate
that Pasene was in possession of the Phone at the dates and times
he was contacted by Officer Le, while reserving the right to
present evidence that Pasene was not in possession of the Phone
at the time of the shooting. Pasene argued such a stipulation
would preserve the probative value of the testimony while
eliminating its prejudicial impact. The State declined to so
stipulate.
Pasene then argued that the evidence should be excluded
under HRE Rule 403 (2016) because its probative value was
substantially outweighed by the danger of unfair prejudice. The
circuit court granted in part and denied in part Motion in Limine
No. 4, in order to reduce the testimony’s prejudicial effect
while retaining its probative value. The circuit court explained
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that the testimony was relevant to explain “law enforcement[’s]
concern as to the escalation of problems between the two rival
groups or gangs in the Chinatown area” and to show “a tie-in to a
phone, a cell phone, as well as a blue Buick.” In order to
reduce the testimony’s prejudicial effect, the circuit court
limited the allowable testimony to exclude “evidence of Defendant
Pasene’s gang membership and the fact that he is believed to be
engaged in the sale or transaction of drugs,” as well as “any
mention of drugs, money or money transactions of any kind.”
B. Third Jury Trial
1. Overview
At trial, the State presented testimony from two eye-
witnesses, Gabriel Sakaria and Richard Tagataese, who both
identified Pasene as the driver of the blue Buick sedan and one
of Peneueta’s killers. The State also presented testimony from
Officer Le to tie Pasene to the Phone and the blue Buick sedan,
and used cell phone site records to show that the Phone was in
Peneueta’s general vicinity around the time of his killing, and
in the blue Buick sedan’s general vicinity around the time it was
set on fire.
Under the State’s theory, Muna could not have been
involved in Peneueta’s shooting, as he was in a taxi cab heading
to the Plaza hotel when the shooting occurred. To support this
theory, the State presented testimony from Detectives Gregory
McCormick and Theodore Coons regarding the steps they took to
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investigate Muna. Chinatown surveillance footage, which was not
admitted into evidence, was also discussed at trial as a basis
for the detectives’ decision to rule Muna out as a suspect.
Pasene relied on the defense of mistaken identity,
arguing that Muna could have been the driver who shot and killed
Peneueta. Pasene presented testimony from Linda Del Rio, a bail
bond agent, that Muna confessed to her on the morning of
Peneueta’s killing that he’d shot someone. Pasene also testified
that he was not in possession of the Phone or the blue Buick
sedan at the time of Peneueta’s killing.
During the trial, defense counsel requested that the
circuit court excuse Juror No. 1 because he interacted with a
witness and discussed the interaction with another juror. This
request was denied. Defense counsel also objected throughout the
trial and made several motions for mistrial on the bases of
evidentiary violations and prosecutorial misconduct. Although
the circuit court sustained numerous objections raised by defense
counsel, admonished the Deputy Prosecuting Attorney (DPA)
multiple times, and expressed concern that the DPA’s pattern of
conduct could jeopardize Pasene’s right to a fair trial, it
denied Pasene’s motions.
2. The State’s Opening Statement
In his opening statement, the DPA suggested that two
groups of Samoan men - one local, and one from San Francisco -
were engaged in a territorial dispute. According to the DPA,
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evidence presented at trial would show that Pasene shot and
killed Peneueta in response to escalating tensions between the
two groups.
Defense counsel made ten objections during the DPA’s
opening statement. The circuit court sustained six objections on
the basis of improper argument, and warned the DPA, “I’ve
sustained many appropriate objections raised at this point. You
know what argument is. You are engaging in argument. Do not do
that.”
The DPA then stated:
[A]s far as Mr. Muna being a suspect, you will hear
the testimony of Detective Greg McCormick and
Detective Theodore Coons, both of whom investigated
Cedro Muna and eliminated him as a suspect because the
Chinatown cameras were able to capture Mr. Muna
getting into the taxi, as testified to by the taxi
driver and as stated to them by Mr. Muna, and the taxi
driver and the timing allowed the police to eliminate
Mr. Muna as a suspect, because as the car . . . was
driving away . . . shots were heard.
(Emphases added).
Defense counsel objected, as the surveillance footage
from the Chinatown camera referenced by the DPA was “not
recoverable,” and therefore would not be admitted into evidence.
Although no curative instruction was given, the circuit court
addressed the DPA at the bench as follows:
[G]iven the number of objections that have been
sustained thus far, you know, one would question
whether or not this is just inadvertent or you are
blatantly disregarding the Court’s – the rulings about
the limitations of opening statement.
. . .
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[Y]ou have this tendency to launch into an
argumentative tone and syntax, that certainly a
conclusion could be drawn, that could be reasonable
based upon the number of those instances, to question
whether or not that is, in fact, inadvertent or if you
are doing it purposefully. I certainly hope it’s not
the latter, . . . [b]ut I ask you to try to be
careful. Because this is the third trial. We want to
make sure that everybody has a fair opportunity to be
heard.
(Emphasis added).
At the conclusion of the State’s opening statement,
defense counsel moved for a mistrial, arguing the DPA’s use of
improper argument forced him to repeatedly object and prejudiced
Pasene’s opportunity to receive a fair trial. The circuit court
denied the motion, but admonished the DPA, acknowledging that any
further improper conduct could jeopardize Pasene’s right to a
fair trial:
[T]he reality is, . . . the sum total of the repeated
references or arguments that you made during your
opening really . . . causes me to seriously question
whether or not it is intentional or it is purely
inadvertent. I don’t care, to be quite frank about
it. Both sides are entitled to a fair trial.
. . .
I’m putting you clearly on notice . . . we’re in a
third trial . . . [and] we want to make sure that
everything is done as appropriately and properly as
possibly can be. You want a fair trial. Mr. Pasene
deserves a fair trial, as well. And playing fast and
loose with . . . the rules or conventions of court
really is not going to serve you well if you choose to
do that. . . . [G]oing forward I will full well
expect you to conduct yourself . . . without the need
to inject improper statements, comments, or what have
you.
(Emphases added).
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3. Evidence
The jury was presented with testimony elicited from 27
witnesses during the evidence phase of trial. The evidence most
directly relevant to the issues on appeal is set forth below.
a. Gabriel Sakaria
Gabriel Sakaria (Sakaria) testified that he, Richard
Tagataese (Tagataese), and Peneueta grew up together and had been
friends for over 20 years. Sakaria stated that he witnessed
Pasene and Peneueta arguing outside a liquor store on the morning
of Peneueta’s shooting. He heard Pasene say, “[w]here we from we
don’t fight, we shoot, shoot to kill.” Sakaria later walked to
the nearby recreation center. He was sitting next to Peneueta
outside the center, when a four-door blue Buick sped up the
street and stopped right in front of them. Two men got out of
the car. The driver was holding a rifle and his face was
uncovered. Sakaria identified him as Pasene. The passenger was
holding a shotgun, but Sakaria was unable to identify him because
his face was covered.
Sakaria testified that the driver walked towards
Peneueta with the rifle pointed at him and said, “What’s up now?”
Sakaria stated he was roughly three feet away from the driver,
the lighting conditions were good, and he had an unobstructed
view of the driver’s face. Sakaria testified that he heard a
gunshot and ran. He heard at least ten more gunshots as he fled.
When he returned to the area, Peneueta was lying in the street.
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Sakaria also testified that he knew Muna and was “[h]undred
percent” positive that the driver was Pasene, and not Muna.
b. Richard Tagataese
Tagataese testified that he was outside the recreation
center with Peneueta and Sakaria at the time of Peneueta’s
shooting. Tagataese’s testimony regarding the details of
Peneueta’s shooting was substantively consistent with Sakaria’s
version of events. Tagataese identified Pasene as the driver of
the car, and one of Peneueta’s killers.
c. Darren Kawelolani
Taxi cab driver Darren Kawelolani (Kawelolani)
testified that one of his regular customers, Daniel Ropati
(Ropati), called him from Chinatown at around 4:00 a.m. on the
morning of Peneueta’s killing. When Kawelolani arrived in
Chinatown roughly 10 minutes later, Ropati no longer wanted a
ride, so Kawelolani picked up two male passengers that he did not
know. Kawelolani testified that after the passengers entered his
cab, he saw a blue car speed by within three feet of the cab.
The blue car’s windows were rolled up and tinted or dirty.
Shortly after the blue car passed by, Kawelolani heard what
sounded like firecrackers or eight to ten loud gunshots. He
proceeded to drive to the Best Western Airport Plaza Hotel, where
he dropped off one of the passengers. He then returned to
Chinatown, where he dropped off the other passenger.
Kawelolani was interviewed by HPD Detective Gregory
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McCormick (Detective McCormick) four or five days after
Peneueta’s killing. Kawelolani testified that during the
interview, he identified Toloai as one of the passengers based on
a single photograph presented to him by Detective McCormick.
Kawelolani was unable to identify the second passenger.
At trial, Kawelolani testified that the driver of the
blue car had long hair. When asked if the driver had any facial
hair, Kawelolani responded, “Not that I recall.” However, after
reviewing a copy of the statement he gave to the police four or
five days after the shooting, Kawelolani testified that the
driver of the blue car “not only had long hair, but he also had a
beard.” When asked if he ever saw the driver of the blue car
after his initial sighting, Kawelolani responded, “Yes. . . . I
saw him on the news on the television.” Kawelolani did not
identify Pasene as the driver of the blue car or the person that
he saw on the news.
d. Detective Gregory McCormick
Detective McCormick was the lead homicide detective
assigned to investigate Peneueta’s killing. He testified that
shortly after the shooting, he was given the names of three
possible suspects: Pasene, Muna, and Toloai. The DPA asked
Detective McCormick, “[w]hat conclusion did you come to regarding
Cedro Muna being one of the shooters?” Defense counsel objected
to the question, arguing that Detective McCormick’s conclusion
regarding Muna was irrelevant and that the question was improper
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because it was equivalent to asking for Detective McCormick’s
personal opinion about whether Muna was involved in Peneueta’s
killing. The circuit court sustained in part and overruled in
part the objection, acknowledging the possibility that the jury
might use Detective McCormick’s opinion for an improper purpose.
Accordingly, the circuit court limited the DPA’s line of
questioning to the “efforts [Detective McCormick] made relative
to Mr. Muna and the conclusion of those efforts” - whether they
cleared him as a suspect in the investigation.
McCormick testified that Muna was interviewed, but not
arrested in connection with Peneueta’s killing. The DPA then
questioned Detective McCormick regarding his elimination of Muna
as a suspect, prompting defense counsel to object and move for a
mistrial:
[DPA]: Did you interview other witnesses that could
corroborate what Mr. Muna had told you?
[Detective McCormick]: Yes.
[DPA]: Okay. Who was that?
[Detective McCormick]: One of ‘em was Antonias Toloai.
[Defense counsel]: Your Honor, can we approach again
please?
The Court: All right. Very well.
(The following proceedings had at the bench:)
[Defense counsel]: [T]he problem is . . . I’m never
going to cross [Toloai], and he says [Toloai’s]
statement matches Cedro [Muna]’s. And that’s a
violation of the confrontation clause and my client’s
right to cross-examine witnesses against him. And
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that’s why it’s hearsay and it’s problematic. And so
I’d like to ask for a mistrial. I move for a mistrial
because this violates a whole variety of rules of
evidence.
. . .
The Court: [Defense counsel] has a valid concern and
point, because you know, . . . once you start placing
the moniker of corroboration on there, essentially
that’s saying that . . . what they said to the police
was the same thing Mr. Muna had said. And he’s not
going to get an opportunity to cross-examine those
folks [because they are not going to testify].
(Emphasis added).
The circuit court denied Pasene’s motion for mistrial
and instructed the jury that Detective McCormick’s testimony that
“Muna was in fact interviewed and that he was not arrested,”
would stand. The circuit court struck all of the testimony that
followed and instructed the jury to “treat it as if you didn’t
hear it,” acknowledging that disregarding the stricken testimony
may be “easier said than done.”
At the bench, the circuit court also addressed whether,
and to what extent, the DPA could question Detective McCormick
regarding Chinatown surveillance footage that he reviewed in the
course of his investigation. The DPA represented to the circuit
court that the surveillance footage showed Muna getting into
Kawelolani’s taxi cab.4 However, defense counsel objected to the
allowance of any testimony regarding the content of the
4
The DPA also referred to this footage in the State’s opening
statement. See section I.B.2.
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surveillance footage because it “somehow was unrecorded or
destroyed.” In recognition of the fact that the surveillance
footage was not turned over to the defense and could not be
viewed by the jury, the circuit court proposed limiting Detective
McCormick’s testimony regarding the surveillance footage to the
following:
[T]o the extent that [the DPA] examines [Detective
McCormick] on the video evidence, that . . . following
the interview of Mr. Muna[,] he viewed the video and .
. . based upon what he viewed in the video, . . .
essentially Mr. Muna was cleared.
. . .
[B]asically [that the detectives] chose not to further
investigate Mr. Muna.
Defense counsel replied, “If he keeps it to that,
that’s fine.”
Detective McCormick testified that although he viewed
the Chinatown surveillance footage in the course of his
investigation, it was “not recoverable.” The State examined
Detective McCormick regarding the Chinatown surveillance footage
as follows:
[DPA]: As part of your investigation of Cedro Muna,
you reviewed some of the camera videotape from
Chinatown; is that correct?
[Detective McCormick]: Yes.
[DPA]: Okay. And based upon your review of that – of
that video, that was part of the reason why you were
able to eliminate Mr. Muna as a suspect?
[Detective McCormick]: That was part of the reason,
yes.
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[DPA]: Okay. And in addition to other parts of your
investigation which – in addition to the video that
you saw led you to eliminate Mr. Muna as a suspect in
the shooting?
[Detective McCormick]: Yes.
Defense counsel did not object. Detective McCormick
also testified that a blue Buick, with the license number JGA
055, was reported burning just before 6:00 a.m. on the day of
Peneueta’s shooting. The car was registered to Sylvia Hall
(Hall). Detective McCormick further testified that the car was
registered to Muna until Hall registered it in her name on
February 10, 2009.
e. Detective Theodore Coons
Detective Coons was the scene investigator assigned to
Peneueta’s killing. When asked whether, based on his review of
the Chinatown surveillance footage, he ruled Muna “in or out,”
Detective Coons confirmed that Muna was not arrested in
connection with Peneueta’s killing and testified that his review
of the Chinatown surveillance footage “was one of the aspects”
that led to the elimination of Muna as a suspect.
The State moved surveillance footage recorded at the
Best Western Airport Plaza Hotel into evidence. Detective Coons
testified that he viewed the footage at the hotel in the course
of his investigation, and at the time, it was marked with a date
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and time stamp.5 The footage admitted into evidence lacked such
temporal references, but Detective Coons testified that it was
“an exact copy” of the footage he reviewed at the hotel.
Detective Coons also confirmed that a car with the license plate
number JGA 055, registered to Hall, was reported burning near
Waialua shortly after the shooting. Detective Coons further
testified that he met with Hall and she did not have a driver’s
license. Without objection by defense counsel, Detective Coons
described Hall as “a very simple person. She was accompanied by
a social worker. She was sober. She appeared coherent and she
understands. But it was obvious that she was a simple . . .
person.”
f. Vince Monaco
The circuit court permitted Monaco, the network
engineering manager and custodian of records for Mobi, to testify
as an expert in “cell phone technology and the technique of
locating and plotting origins of cell phone calls using cell
phone records.” Monaco testified that, according to Mobi’s
records, the Phone was associated with the name Fasi Lya.
Pursuant to the circuit court’s ruling regarding Motion
5
The custodian of records testified that the hotel surveillance
footage was recorded on March 28, 2009, but there is nothing in the record to
indicate that the footage was recorded around the time of Peneueta’s killing.
The footage was introduced by the State in order to: 1) explain the HPD
detectives’ efforts to fully investigate Muna before eliminating him as a
suspect; and 2) corroborate Muna’s alibi that he was in a taxi cab on the way
to the Best Western Airport Plaza Hotel at the time of the shooting.
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in Limine No. 3,6 the circuit court admitted into evidence cell
phone site records and text message records associated with the
Phone. Monaco testified that the cell phone site records
indicated that the Phone utilized cell towers in or near
Chinatown at 3:43 a.m., 4:06 a.m., and 4:12 a.m. on the morning
of Peneueta’s shooting. The Phone also connected to cell towers
in the Wahiawā area at 5:50 a.m. and 5:52 a.m.7 The text message
records also included a message sent from the Phone at 4:47 a.m.
on March 29, 2009, the day after Peneueta’s killing. The message
stated, “I need a lawyer because they trying 2 put a hot one on
me so don’t talk on da phone.”
g. Undercover Officer Khan Le
Officer Le testified that he first met Pasene on
March 10, 2009, while working undercover in Chinatown. Officer
Le arranged meetings with Pasene on March 12, 13, 19, 26, and 30
by communicating with Pasene using the Phone. Officer Le stated
that of all the times he called the Phone, only Pasene answered.
Officer Le also testified that Pasene drove to four or five of
their meetings in a dark-colored sedan with the license plate
6
With respect to all three jury trials, defense counsel challenged
the admissibility of the cell phone site records through motions in limine.
These motions were denied. Prior to admitting the records into evidence
during the third trial, the circuit court noted “all prior positions” taken by
defense counsel and gave defense counsel an opportunity to object further.
Defense counsel stated he had “[n]othing additional to what we’ve already
placed on the record.”
7
Wahiawā is located between Chinatown, where Peneueta’s killing
took place, and Waialua, where the blue Buick sedan was reported burning.
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number JGA 055, and that two of their meetings took place in the
car.
Officer Le testified that the purported purpose of his
final meeting with Pasene, which occurred two days after
Peneueta’s killing, was “to have a transaction.” In apparent
violation of the circuit court’s ruling on Motion in Limine No.
4, which precluded “any mention of drugs, money or money
transactions,” the DPA asked Officer Le how much money was
involved in the transaction, and he responded “$6,000.” Defense
counsel did not object. Officer Le also stated that Pasene was
arrested during that final meeting. On cross-examination,
defense counsel asked Officer Le, “[o]n [March] 26, 2009, money
was also exchanged, right?” Le responded affirmatively. Defense
counsel then asked Officer Le to confirm that the exchange “was
in the amount of $4,900.” Officer Le responded, “correct.”
h. Request to Excuse Juror No. 1
During a recess following the conclusion of Officer
Le’s testimony, Juror No. 1 approached Officer Le and asked if he
practiced jiu-jitsu. Officer Le responded by shaking his head to
indicate “no.” Juror No. 1 told Juror No. 2 about his exchange
with Officer Le, but there was no further interaction between
Juror No. 1 and Officer Le.
The court asked Juror No. 1 if the interaction left him
with “any type of impression or reaction” that might “affect
[his] ability to sit on this case,” to which he replied “No.”
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The court then asked Juror No. 1 if he had any concern that the
interaction “might in some small way, even inadvertently . . .
affect the way [he looks] at either the evidence or . . . the
application of the law to the facts” in this case. Juror No. 1
again replied “No.” Neither the DPA nor defense counsel elected
to question Juror No. 1 further. When asked if either counsel
thought an inquiry with Juror No. 2 would be appropriate, both
the DPA and defense counsel deferred to the circuit court’s
determination that such an inquiry was unnecessary.
Pasene asked the circuit court to excuse Juror No. 1,
arguing that the juror’s conduct demonstrated an unwillingness or
inability to follow the circuit court’s instructions.8 The
circuit court denied Pasene’s request, finding “nothing about
[the] particular encounter . . . remotely touched upon the facts
in this case,” and concluding Juror No. 1’s conduct was “fairly
innocuous.”
i. Linda Del Rio
The defense put on testimony from bail bond agent Linda
Del Rio (Del Rio). Del Rio testified that she posted bail bonds
8
At the start of trial, the circuit court gave the following
instruction to the jury:
We talked about seeing the attorneys, right, out and
about the courthouse or anyplace else. If you see
them, you can say “hi”; see witnesses, you know, same
goes for that. But please have as minimal interaction
as you possibly can with them because we want to make
sure the trial is fair in actuality - both in
actuality but as well as in perception . . . .
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for Pasene, Muna, and Toloai in the early hours of March 28,
2009. She recalled that Muna owned a blue four-door sedan, which
he tried to use as collateral. Del Rio also stated that Muna
used the car as collateral when she bailed him out on a previous
occasion.
Del Rio also testified that Muna called her between
10:30 a.m. and 11 a.m. on the morning of Peneueta’s shooting. He
told her he “was in Wahiawa, and that he had done something and
he needed to . . . turn himself in.” According to Del Rio, Muna
also confessed to her, “Aunty, I shot someone.”
j. Cedro Muna
Muna testified that Pasene was using a car that
belonged to someone named Fasi - not the blue Buick sedan - prior
to their arrest on March 27, 2009. He also stated that Pasene
did not own a phone at the time. Muna further testified that he,
Pasene, and Toloai went to Chinatown after they were released
from police custody on the morning of March 28, 2009. There, he
witnessed Pasene and Peneueta arguing outside a liquor store.
Muna testified that he saw Pasene point a shotgun at
Ropati roughly 30 minutes later, telling Ropati to “get away or
he was going to shoot him.”9 Muna testified that Ropati called a
cab, but gave it away, despite having been threatened with a
shotgun a couple of minutes earlier. Muna stated he and Toloai
9
This allegation provided the foundation for Count IV, Terroristic
Threatening in the First Degree. Pasene was found not guilty of Count IV in
the second jury trial.
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got into the cab and before the cab pulled away, he saw a blue
Buick pass by. He recognized the car as his old car and
identified the car’s driver as Pasene. As the cab drove off,
Muna heard about ten gunshots. Muna testified that he took the
taxi to the Best Western Airport Plaza Hotel.
The DPA showed Muna surveillance footage from the
hotel’s elevator camera that had been admitted into evidence.
Muna testified that he recognized himself in the footage based on
his clothing. Muna stated that he left the hotel just ten
minutes after he arrived, explaining, “I forgot that my hotel is
in Waikiki, . . . [s]o I got in [another] cab and I went to
Waikiki.”
Muna denied attempting to use the blue Buick as
collateral to secure his bail bond. He testified that he sold
the blue Buick to someone named Tia in January 2009, and he was
present when Tia sold it to Pasene in February 2009. Muna also
denied telling Linda Del Rio that he shot someone on March 28,
2009. He stated that he had a good relationship with Del Rio
when she bailed him out on the morning of Peneueta’s shooting,
but their relationship turned “bad” when he “jumped bail.” Muna
explained that he left Hawaii two months after Peneueta’s
shooting. Because he missed a court date, his bail was revoked.
Muna was ultimately picked up on a warrant and extradited to
Hawaii in February 2013.
Muna admitted that he gave a statement to the
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detectives on the day of Peneueta’s shooting, which made no
mention of Pasene threatening Ropati with a shotgun, or of Pasene
driving by in the blue Buick. Upon his extradition, Muna gave a
second statement regarding the events of March 28, 2009, in which
he stated that he saw Pasene threaten Ropati with a gun. On
cross-examination, defense counsel asked Muna, “you knew that if
you cooperated in a murder case, your attorney could . . . argue
to the judge in your case . . . this guy was helpful to the
State, and . . . a judge could consider that . . . right?” Muna
responded: “Yeah.”
k. Iosefa Pasene
Pasene admitted to using the Phone from time to time,
but testified that Fasi owned and paid for the Phone. Pasene
explained that he used the Phone because Fasi lived nearby, most
of the phone numbers Pasene used were saved on the Phone, and
Fasi had a second phone. Pasene also admitted to arguing with
Peneueta on the morning of Peneueta’s killing, but he stated that
he had not met Peneueta prior to that occasion and he denied
saying anything like “where I’m from, I shoot, and I shoot to
kill.”
Pasene testified that although he had driven the blue
Buick sedan on several occasions, he borrowed it from Muna and
believed it belonged to Muna. According to Pasene, several other
people drove the car, including Muna, Toloai, and Ropati. Pasene
also testified that he had Fasi’s car, not the blue Buick, when
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he was arrested on March 27, 2009. Pasene stated that Fasi
picked up the car while he was in custody, leaving him without a
vehicle. When he realized Fasi’s car wasn’t where he left it,
Pasene asked his cousin for a ride to his girlfriend’s house a
couple blocks away.
Pasene testified that he gave the Phone and Fasi’s car
keys to his cousin “to give back to Fasi.” Pasene stated that he
stayed at his girlfriend’s house until around noon, when he got
the Phone back and used it to call Del Rio. When asked if he
recalled sending a text message from the Phone at 7:47 a.m. on
the day after Peneueta’s killing, which said, “I need a lawyer
because they trying 2 put a hot one on me so don’t talk on da
phone.” Pasene replied, “I don’t recall that text message. I
know I didn’t send that text message.” Pasene denied shooting
and killing Peneueta.
4. Jury Instructions
At the conclusion of the evidence phase of the trial,
the circuit court gave the jury several instructions, including
the following:
Statements or arguments made by lawyers are not
evidence. You should consider their arguments to you,
but you are not bound by their memory or
interpretation of the evidence.
. . .
You must disregard entirely any matter which the Court
has ordered stricken.
. . .
You must not consider in any way nor speculate upon
the nature or subject matter involved in the alleged
interactions and the alleged transactions.
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. . .
You have heard evidence relating to out-of-court
identifications of the defendant and other individuals
made by witnesses to police investigators in this
case. Some of these identifications reportedly were
made after viewing a single photograph as opposed to a
group of photographs presented to the witness. This
type of identification procedure may be suggestive and
may or may not affect the reliability of the witness’s
identification.
5. The State’s Closing Argument
In closing, the DPA summarized the State’s theory of
the case: Pasene shot and killed Peneueta to send a message. He
thought he could get away with the killing because the Phone and
the blue Buick sedan were not registered to him. However, the
State argued, evidence from his meetings and transactions with
undercover Officer Le and eye-witness testimony established his
guilt beyond a reasonable doubt. Defense counsel objected
several times during the DPA’s closing argument. Four such
instances are discussed below.
The DPA stated, “Hall did not have a license [and] had
a social worker. . . . Now, who benefits if a mentally
handicapped person is the registered owner [of the blue Buick]?”
(Emphasis added). Defense counsel objected, arguing that the
comment was prejudicial and misstated the evidence. Finding that
the DPA’s statement made an unfair inference, which “conjures up
a different sort of scenario,” the circuit court sustained the
objection and instructed the jury to “disregard in its entirety
the last statement of the [DPA] that Ms. Hall was . . . mentally
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handicapped.” It explained that there was no evidence that Hall
was intellectually disabled introduced at trial and further
instructed the jury to “disregard [the DPA’s statement] and not
consider it for any purpose whatsoever.” Defense counsel moved
for a mistrial. The motion was denied.
Later in the State’s closing argument, defense counsel
objected to the DPA’s following statement:
Cedro Muna was not one of the shooters, but he was one
of the suspects. The detectives told you that. How
was he eliminated as a possible shooter? They didn’t
go on his word. What they did was they told you they
went to the Chinatown station and they looked at the
camera, and they saw a person that looked like Cedro
Muna.
(Emphasis added).
Defense counsel again moved for a mistrial, as the
circuit court made clear that because the Chinatown surveillance
footage was not admitted into evidence, its contents were
inadmissible. The circuit court sustained the objection,
provided a cautionary instruction to the jury, and denied
Pasene’s motion for mistrial. The circuit court proceeded to
admonish the DPA at the bench as follows:
[T]here was absolutely no evidence with respect to
what was seen on the video. And your statement during
closing argument . . . is injecting information that
was never provided to this jury. . . . I’ve told you
ad nauseam that you have to confine your arguments and
questioning during this case to what’s appropriate.
And for whatever reason, you’re either incapable of
doing that or you refuse. I’m not sure what it is,
but there’s no excuse for it.
(Emphasis added).
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The DPA later stated, “Who else IDs Mr. Pasene? Darren
the taxi driver.” Defense counsel objected on the basis that
Darren Kawelolani did not identify Pasene as the driver of the
blue Buick. Kawelolani testified that he saw the driver on the
news, but did not identify Pasene as that person. The circuit
court overruled the objection and asked the DPA to make a
clarifying statement. Accordingly, the DPA stated:
Darren [Kawelolani] said that he saw the driver, and
he later . . . recognized that person on the news.
Cedro Muna, who is sitting directly behind Darren
[Kawelolani] at that same moment, sees the same blue
car coming towards the taxi . . . . He recognizes the
car because he used to be the owner of that car, and
he recognizes the driver as Iosefa Pasene.
Defense counsel did not object to the DPA’s restatement.
The DPA commented on the credibility of Sakaria and
Tagataese’s eye-witness testimony by stating, “let’s go to Gabe
[Sakaria] and Richard [Tagataese]. Ask yourself this. Imagine,
all of you, imagine one of your friends that you’ve known for 20
years . . . .” Defense counsel objected, arguing that the DPA
improperly asked the jurors to put themselves in the shoes of the
State’s eye-witnesses. In response to this objection, the
circuit court asked the DPA to rephrase. The DPA then stated:
Imagine a person has a friend for over 20 years and
they’re standing next to him and unexpectedly a car
stops, two guys jump out, and they shoot him in his
back and kill him and that’s your good friend. That’s
your close friend. . . . You, as a friend, would want
the person who shot your close friend to be held and
come to justice, so you’re going to tell the truth if
you’re a friend and he was a friend for over 20 years.
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(Emphases added).
6. Pasene’s Closing Argument
In his closing argument, defense counsel stressed the
presumption of innocence and emphasized that the question before
the jury was whether the State proved beyond a reasonable doubt
that Pasene killed Peneueta. Defense counsel then highlighted
evidence suggesting Muna, rather than Pasene, may have been one
of Peneueta’s killers: the blue Buick sedan was registered to
Muna before it was put in Hall’s name; Pasene testified that he
borrowed the car from Muna in the weeks leading up to the
shooting; Del Rio testified that Muna tried to use the car as
collateral the day before the shooting; Muna and Pasene had
similar dress and physical attributes on the morning of the
shooting; Muna “act[ed] very strange” the morning of the shooting
by going to the wrong hotel; Del Rio testified that Muna told
her, “Aunty, I shot someone” on the morning of the shooting;
Detective McCormick testified that Muna was one of the three
named suspects; and Muna fled the jurisdiction following the
shooting and only testified that Pasene threatened Ropati with a
gun upon his extradition to Hawaii four years later.
Defense counsel concluded that the State had failed to
carry its burden of proving beyond a reasonable doubt that Pasene
killed Peneueta.
7. The State’s Rebuttal Closing
The DPA began the State’s rebuttal closing by stating,
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“[defense counsel] had this nice drawing of presumption of
innocence, blah, blah, blah, right, it’s our burden, and we’re
over here and he draws a stick man.” (Emphasis added). Defense
counsel objected, but the court overruled the objection. The DPA
then proceeded to state, “John Gotti, when he goes to trial, he’s
presumed innocent. . . . Charles [Manson] . . . .” Defense
counsel objected once more. The circuit court sustained the
objection and instructed the jury to “disregard the last
statements of the [DPA].” It also addressed the DPA at the bench
as follows:
[T]he examples that you’re using, . . . I believe tend
to have an inflammatory nature about them . . . .
[W]hen you start injecting the specter of these other
heinous examples[,] . . . one danger is, is that the
jury might be led to react either in a more emotional
other than an objective and unbiased way.
8. Motion for Mistrial
Following the conclusion of the State’s rebuttal
closing, defense counsel renewed his motion for mistrial and
stated the following outside the presence of the jury:
In each of the three trials, two of the most hotly
litigated issues [were] . . . whether or not the jury
would know that [Hall] was mentally handicapped and .
. . what the detective saw in the [Chinatown
surveillance] video. . . . After all of that, in
closing argument, knowing that . . . was nowhere in
evidence, [the DPA] gets up there and tells the jury
that [Hall] was mentally handicapped and tells the
jury that the detective[s] saw Cedro Muna on the
[Chinatown surveillance] video getting into the ca[b].
. . . You can’t unring a bell, and [the DPA] knows
that, and that’s why he told the jury that because now
it’s in their head.
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The circuit court denied defense counsel’s motion for
mistrial, but addressed the DPA as follows:
[I]t is clear that there has been . . . a pattern of
conduct in this particular case that does one of two
things. It either implicates a knowing disregard of
the rules of court and evidence and ethical
considerations, or it certainly suggests a pattern of
not complying with those. . . . [I]t certainly at a
bare minimum would suggest a lack of either
understanding or an unwillingness or an inability to
follow certain rules and conventions that attend
trial.
. . .
[B]ased upon what I’ve seen, I think there’s at least
at a bare minimum a suggestion that your facility with
either the rules or what is expected of your conduct
as a trial prosecutor is certainly lacking in some
regard . . . .
9. Jury Verdict
The jury found Pasene guilty as charged as to both
Murder in the Second Degree and Carrying or Use of Firearm in the
Commission of a Separate Felony.
D. Post-trial Proceedings and Judgment
Pasene filed a post-trial motion for mistrial, or in
the alternative for a new trial, alleging prosecutorial
misconduct prejudiced his right to a fair trial. Pasene argued
that the DPA engaged in improper argument in his opening
statement, “violated countless rules of evidence, rules of
professional conduct, and rules of court” throughout the evidence
portion of the trial, and “on several occasions informed the jury
of facts not in evidence, some of which had been expressly
prohibited by order of [the circuit court]” during his closing
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argument. Pasene specifically addressed multiple instances of
alleged misconduct, which he later raised on appeal to the ICA
and again on certiorari. Pasene argued that “[t]he prosecutorial
misconduct throughout [the third] trial, and especially in
closing argument, were not errors made due to inexperience or
lack of the law on the part of the [DPA]. Instead, the
prosecutorial misconduct was calculated and knowingly committed.”
He concluded that, based on the nature of the DPA’s conduct, the
sufficiency of the circuit court’s curative instructions, and the
weakness of the State’s evidence, there was a reasonable
possibility that the DPA’s misconduct might have contributed to
the conviction, and thus the granting of a mistrial or a new
trial was warranted.
The circuit court denied Pasene’s motion, stating,
“this Court finds and concludes that the State’s conduct was not
improper, and therefore has not risen to the level of misconduct
warranting the granting of [Pasene’s] Motion.” The circuit court
further concluded that even if the DPA’s conduct was improper,
granting of Pasene’s motion was still unwarranted in light of the
promptness of the circuit court’s curative instructions and the
strength of the State’s evidence.
The circuit court entered an Amended Judgment of
Conviction and Sentence (Amended Judgment), sentencing Pasene to
concurrent terms of life imprisonment with possibility of parole
for Murder in the Second Degree and twenty years’ imprisonment
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for Carrying or Use of Firearm in the Commission of a Separate
Felony.
On appeal, the ICA concluded that the circuit court did
not err in: (1) denying Pasene’s Moriwake motion to dismiss; (2)
permitting Detective McCormick to testify regarding the
elimination of Muna as a suspect; (3) admitting the cell phone
site records; (4) admitting evidence of Pasene’s meetings and
transactions with Officer Le; or (5) denying Pasene’s request to
excuse Juror No. 1. With regard to Pasene’s allegations of
prosecutorial misconduct, the ICA characterized some of the DPA’s
conduct as improper and noted:
We do not condone or excuse a prosecutor’s conduct in
making improper remarks in opening statement or
closing statement or asking improper questions during
trial. We agree with the Circuit Court that the
prosecutor’s conduct in this case created issues that
could easily have been avoided and unnecessarily
raised the potential for a mistrial.
However, the ICA concluded that “individually and
cumulatively the [DPA’s] alleged acts of misconduct did not deny
Pasene of a fair trial and do not warrant vacating his
convictions.” Accordingly, the ICA affirmed the circuit court’s
Amended Judgment.
II. DISCUSSION
On certiorari, Pasene argues the circuit court abused
its discretion in denying his pre-trial Moriwake Motion to
Dismiss. He also challenges the circuit court’s rulings
admitting into evidence cell phone site records, testimony
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regarding the meetings and transactions he had with Officer Le,
and testimony regarding the elimination of Muna in the
investigation of Peneueta’s killing. In addition, Pasene argues
the circuit court abused its discretion and deprived him of a
fair trial in denying his request to excuse Juror No. 1.
Finally, Pasene challenges the denial of his various motions for
mistrial, and his post-trial Motion for Mistrial or New Trial on
the basis of prosecutorial misconduct.
As discussed below, we conclude that the cumulative
effect of the DPA’s improper conduct was so prejudicial as to
jeopardize Pasene’s right to a fair trial. We therefore vacate
Pasene’s convictions and remand this case to the circuit court
for further proceedings.
We affirm the ICA’s Memorandum Opinion with regard to
all other issues raised on appeal.
A. The Circuit Court Did Not Abuse its Discretion in Denying
Pasene’s Pre-trial Moriwake Motion to Dismiss
Dismissing an indictment with prejudice following one
or more hung-jury mistrials is a proper exercise of a trial
court’s power to administer justice. Moriwake, 65 Haw. at 55,
647 P.2d at 712. Determining whether an indictment should be
dismissed with prejudice following the declaration of one or more
mistrials is “a matter of balancing the interest of the state
against fundamental fairness to a defendant with the added
ingredient of the orderly functioning of the court system.” Id.
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at 56, 647 P.2d at 712 (citing State v. Braunsdorf, 297 N.W.2d
808, 817 (Wis. 1980)).
After his first two trials resulted in hung-jury
mistrials, Pasene filed a Moriwake motion to dismiss his
indictment with prejudice. Citing to specific facts in the
record, the circuit court considered each of the factors set
forth in Moriwake and acknowledged the need to “balance
[Pasene’s] rights against . . . the interest of the State in
pursuing a prosecution for yet a third time.” The circuit court
determined that the only Moriwake factor weighing in favor of
dismissal was the character of the prior trials in terms of
length, complexity and similarity of evidence presented. It
denied Pasene’s motion to dismiss accordingly.
We review a trial court’s ruling on a motion to dismiss
an indictment for an abuse of discretion. State v. Hinton, 120
Hawaii 265, 273, 204 P.3d 484, 492 (2009) (citing State v. Akau,
118 Hawaii 44, 51, 185 P.3d 229, 236 (2008)). A 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.” State v. Wong,
97 Hawaii 512, 517, 40 P.3d 914, 919 (2002) (citing State v.
Klinge, 92 Hawaii 577, 584, 994 P.2d 509, 516 (2000)). “The
burden of establishing [an] abuse of discretion is on appellant,
and a strong showing is required to establish it.” Id. (citing
State v. Kupihea, 80 Hawaii 307, 312, 909 P.2d 1122, 1127
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(1996)).
It is undisputed that the first Moriwake factor - the
severity of the offenses charged - weighs against dismissal.
Reasonable minds might differ regarding whether the second
Moriwake factor - the number of prior mistrials and the
circumstances of the jury deliberation therein - weighs against
dismissal. On one hand, like in Moriwake, there were two hung
jury mistrials in the instant case, seemingly cutting in favor of
dismissal. On the other hand, the final jury tally varied
significantly between the first and second trials, and as the
circuit court noted, each jury is different. Thus, it cannot be
said that the circuit court’s determination that this factor
weighs against dismissal clearly exceeds the bounds of reason.
As for the third Moriwake factor - the character of
prior trials in terms of length, complexity and similarity of
evidence presented - the record substantiates the circuit court’s
determination that the first two trials were of similar duration
and complexity. It also appears the State put its best case
forward in each trial, and there is no indication in the record
that any new evidence would be presented in a third trial,
weighing in favor of dismissal.
With regard to the fourth Moriwake factor - the
likelihood of any substantial difference in a subsequent trial -
it is apparent that the acquittal of co-defendant Rye would
likely affect the third trial by allowing the State to narrow the
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scope of its argument and the evidence presented in order to
focus its case on Pasene’s prosecution. This supports the
circuit court’s conclusion that the fourth Moriwake factor weighs
against dismissal.
The circuit court determined that the fifth Moriwake
factor - its own evaluation of relative case strength - weighed
against dismissal. It cannot be said that the circuit court
abused its discretion in making this determination. Similarly,
deference to the circuit court’s evaluation of the remaining
Moriwake factor - the professional conduct and diligence of
respective counsel, particularly that of the prosecuting attorney
- is appropriate.
The circuit court’s denial of Pasene’s Moriwake motion
to dismiss was thus based on careful evaluation of each of the
Moriwake factors, and supported by facts in the record. As such,
Pasene has failed to make the requisite strong showing that the
circuit court clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice. Accordingly,
the circuit court did not abuse its discretion in denying
Pasene’s pre-trial motion to dismiss.
B. The Circuit Court Did Not Err in Admitting the Cell Phone
Site Records Into Evidence
Pursuant to HRE Rule 803(b)(6):
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made in the course of a regularly conducted
activity, at or near the time of the acts, events,
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conditions, opinions, or diagnoses, as shown by the
testimony of the custodian or other qualified witness
. . . [is not excluded by the hearsay rule], unless
the sources of information or other circumstances
indicate lack of trustworthiness.10
Pasene filed Motion in Limine No. 3, seeking to exclude
from evidence cell phone site records associated with the Phone
on the grounds that the State did not lay a sufficient foundation
to show the records met the requirements of HRE Rule 803(b)(6).
The circuit court denied Pasene’s motion and allowed
the cell phone site records to be admitted into evidence as a
business record under HRE Rule 803(b)(6). As set forth below, we
conclude that the cell phone site records can properly be
admitted into evidence under HRE Rule 803(b)(6), and that the
circuit court did not abuse its discretion in admitting the
10
The federal counterpart to HRE Rule 803(b)(6), Federal Rules of
Evidence (FRE) Rule 803(6), provides:
A record of an act, event, condition, opinion, or diagnosis [if
not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness] if:
(A) the record was made at or near the time by - or from
information transmitted by - someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or
calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack
of trustworthiness.
We note that “[a]lthough cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules
of Evidence.” State v. Fitzwater, 122 Hawaii 354, 366 n.7, 227 P.3d 520, 532
n.7 (2010).
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records based on its determination that there were no indicia of
a lack of trustworthiness.
1. The Cell Phone Site Records Can Properly be Admitted
Into Evidence Under HRE Rule 803(b)(6)
The circuit court found the cell phone site records
were admissible under HRE Rule 803(b)(6)’s business records
exception to the hearsay rule. We review the admissibility of
hearsay evidence under the right/wrong standard. State v.
Fitzwater, 122 Hawaii 354, 362, 227 P.3d 520, 528 (2010)
(citations omitted).
The circuit court qualified Monaco, Mobi’s custodian of
records, as an expert in cell phone technology and the technique
of locating and plotting origins of cell phone calls using cell
phone records. Monaco testified that Mobi maintains call records
and a cell site database in the regular course of its business.
Monaco further testified that Mobi relies on its call records and
cell site database in its regular billing, maintenance, and
repair operations and their accuracy is important to Mobi.
Monaco explained that he produced the cell phone site
records using a program that he created. When prompted by
Monaco, the program compiled information from Mobi’s call records
and a cell site database. Monaco stated that the process
performed by the program is simple enough to be done manually,
and was in fact done manually prior to the creation of his
program. He further testified that Mobi utilizes the same
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process in the course of its regularly-conducted troubleshooting
and quality-control activities.
Pasene argues that the cell phone site records were
inadmissible under HRE Rule 803(b)(6) because they were compiled
using a computer program pursuant to a subpoena, and were
therefore not created in the regular course of Mobi’s business.
However, HRE Rule 803(b)(6) does not require that a compilation
of data be produced in the regular course of business at or near
the time of the events recorded, provided that the underlying
data used to generate the compilation was so produced. See,
e.g., United States v. Loney, 959 F.2d 1332, 1340-41 (5th. Cir.
1992) (a 35-page compilation of computer records was admissible
as a business record because the underlying data was admissible);
United States v. Russo, 480 F.2d 1228, 1240 (6th Cir. 1973) (“It
would restrict the admissibility of computerized records too
severely to hold that the computer product as well as the input
upon which it is based, must be produced at or within a
reasonable time after each act or transaction to which it
relates.”); United States v. Fujii, 301 F.3d 535, 539 (7th Cir.
2002) (“Computer data compiled and presented in computer
printouts prepared specifically for trial is admissible under
[FRE] Rule 803(6), even though the printouts themselves are not
kept in the ordinary course of business.”) (emphasis in
original); U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576
F.3d 1040, 1043 (9th Cir. 2009) (“evidence that has been compiled
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from a computer database is also admissible as a business record,
provided it meets the criteria of [FRE] Rule 803(6)”); United
States v. Hernandez, 913 F.2d 1506, 1512 (10th Cir. 1990)
(“Computer data compilations may constitute business records for
purposes of [FRE] Rule 803(6), and may be admitted at trial if a
proper foundation is established.”) (citation, internal quotation
marks and brackets omitted).
Here, the data underlying the cell phone site records
was admissible pursuant to HRE Rule 803(b)(6) because it was
produced in the ordinary course of Mobi’s business, at or near
the time of the events recorded. Thus, the fact that the cell
phone site records are a compilation of that data produced by a
computer program does not render the records inadmissible.
Moreover, the fact that the cell phone site records
were produced by the program only when prompted by a human query
does not destroy the records’ admissibility under HRE Rule
803(b)(6). A record containing underlying data that meets HRE
Rule 803(b)(6)’s requirements for admissibility is not rendered
inadmissible simply because it is produced by human query. See
People v. Zavala, 156 Cal. Rptr. 3d 841, 846-47 (Cal. Ct. App.
2013) (call records were not inadmissible simply because they
were produced by human query, where the underlying data was
recorded and stored by a reliable computer system at or near each
time a user made a phone call). Because the cell phone site
records at issue are a compilation of two sets of admissible
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data, they can properly be admitted into evidence under HRE Rule
803(b)(6).11
2. The Circuit Court Did Not Abuse its Discretion in
Admitting the Cell Phone Site Records Into Evidence
“A record that is otherwise admissible under HRE Rule
803(b)(6) may nevertheless be inadmissible if the sources of
information or other circumstances indicate a lack of
trustworthiness.” Fitzwater, 122 Hawaii at 363, 227 P.3d at 529
(internal quotation marks and brackets omitted). The circuit
court found “no indication whatsoever that [the cell phone site
records] lack trustworthiness in any way” and admitted them into
evidence. We review a circuit court’s determination as to the
trustworthiness of hearsay evidence for an abuse of discretion.
Id.
Monaco, Mobi’s custodian of records, was qualified by
the circuit court as an expert witness without objection by
defense counsel. He had personal knowledge of the information
contained in the records and the process by which they were
produced, and was available for cross-examination. Monaco
testified that the data contained in Mobi’s call records is
automatically generated by Mobi’s switch every time a phone call
is made on its system. See Commonwealth v. McEnany, 732 A.2d
11
Although not relied upon by the circuit court, we note that the
cell phone site records also could have been admitted under HRE Rule 1006.
See Loney, 959 F.2d at 1341 (Where the underlying data is admissible under the
business records exception, but is voluminous and cannot conveniently be
examined in court, a summary, compilation, or calculation of that data can be
admitted under FRE Rule 1006).
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1263, 1273 (Pa. Super. Ct. 1999) (call records systematically and
contemporaneously created by a computer system in the regular
course of business were admissible despite the fact that they
were translated from binary code to English for purposes of
trial). Monaco also testified as to the switch’s accuracy,
stating that the switch’s manufacturer guaranteed it to work
“99.999 percent of the time.” He added that the switch is fully
redundant and alarmed in order to prevent errors and to alert the
operator if any errors do occur.
Mobi had no apparent interest in the disposition of
this case and the records were produced in a non-adversarial
setting without “the motivation of prevailing against a
particular party.” Fitzwater, 122 Hawaii at 364, 227 P.3d at
530. Further, there is no evidence or allegation of bias,
tampering, or falsification on the part of Mobi or Monaco with
regard to the cell phone site records, the process by which they
were produced, or the underlying sources of information.
The fact that the cell phone site records were produced
in response to a subpoena issued by law enforcement does not
preclude them from being admitted into evidence as a business
record under HRE Rule 803(b)(6). We have recognized that “[w]hen
records are prepared in anticipation of litigation, they will
often, but not always, demonstrate [a] lack of trustworthiness.”
Id. at 363, 227 P.3d at 529 (emphasis added) (citing 2 Kenneth S.
Broun et al., McCormick on Evidence § 288 at 312 (6th ed. 2006)).
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However, despite the fact that the cell phone site records may
have been produced for the purpose of prosecuting this case, the
sources of information underlying the records and the
circumstances by which they were produced do not indicate a lack
of trustworthiness. Thus, the fact that the cell phone site
records were produced pursuant to a subpoena does not deprive
them of their business-record character. Fujii, 301 F.3d at 539.
Pasene fails to establish that “the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness.” See id. (the trial court did
not abuse its discretion in admitting check-in and reservation
records where defendant failed to establish that “the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness”). We therefore conclude that
the circuit court did not abuse its discretion in finding the
cell phone site records to be trustworthy and admitting the
records under HRE Rule 803(b)(6).12
C. The Circuit Court Did Not Abuse its Discretion in Admitting
Evidence of Pasene’s Meetings and Transactions With Officer
Le
Relevant evidence may be excluded pursuant to HRE Rule
403 “if its probative value is substantially outweighed by the
12
Pasene’s other arguments regarding the admissibility of the cell
phone site records similarly lack merit. Monaco’s testimony was sufficient to
satisfy the foundational requirements of Montalbo, 73 Haw. 130, 828 P.2d 1274,
and concerns regarding the accuracy of the locations reflected in the records
go to the weight of the records, rather than their admissibility.
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danger of unfair prejudice[.]” Pasene filed Motion in Limine No.
4, seeking to exclude testimony regarding various meetings and
transactions he had with Officer Le under HRE Rule 403.
The circuit court granted in part and denied in part
the motion, allowing Officer Le to testify regarding the meetings
and transactions, but precluding “any mention of drugs, money or
money transactions.” A trial court’s balancing of the probative
value of relevant evidence against the prejudicial effect of such
evidence under HRE Rule 403 is reviewed for an abuse of
discretion. State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516
(1992).
Officer Le’s testimony was relevant to connecting
Pasene to the Phone and the blue Buick sedan by showing that: (1)
Pasene used the Phone on several occasions in the weeks leading
up to Peneueta’s killing and on an additional occasion two days
after the killing; and (2) Pasene used the blue Buick sedan on
four or five occasions prior to the killing. The testimony also
carries an inherent risk of prejudice, as the jury could infer
that Pasene’s meetings and transactions with Officer Le involved
the sale of drugs or other bad acts.
It is apparent from the hearing transcript that, as a
result of such weighing, the circuit court granted in part and
denied in part Pasene’s Motion in Limine No. 4 in order to reduce
the testimony’s prejudicial effect while retaining its probative
value. “[T]he determination of the admissibility of relevant
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evidence under HRE 403 is eminently suited to the trial court’s
exercise of its discretion . . . .” State v. Behrendt, 124
Hawaii 90, 108, 237 P.3d 1156, 1174 (2010) (citation omitted).
The record reflects that the circuit court properly exercised its
discretion in order to preserve the probative value of Officer
Le’s testimony and reduce its prejudicial effect. Therefore, the
circuit court’s determination that the probative value of the
testimony permitted was not substantially outweighed by the
danger of unfair prejudice does not clearly exceed the bounds of
reason or otherwise constitute an abuse of discretion.
We affirm the ICA’s determination that the circuit
court’s ruling admitting evidence of Pasene’s meetings and
transactions with undercover Officer Le does not constitute an
abuse of discretion, and shall be left undisturbed.
D. The Circuit Court Did Not Abuse its Discretion in Allowing
Officer McCormick to Testify Regarding the Elimination of
Muna as a Suspect
The circuit court permitted Detective McCormick to
testify that Muna was eliminated as a suspect in the
investigation of Peneueta’s killing, in part, due to his review
of the Chinatown surveillance footage, which was not in
evidence.13 Pasene argues this testimony is inadmissible under
13
As a preliminary matter, we note that the testimony Pasene now
challenges comports with a proposition that the circuit court made at the
bench, to which defense counsel acquiesced. Defense counsel stated at the
bench that it would be fine for Detective McCormick to testify that “he viewed
the [Chinatown surveillance] video and that based on what he viewed in the
video, that essentially Mr. Muna was cleared.”
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HRE Rule 701 (2016), as it constitutes lay opinion that Muna was
innocent and, in any event, is inadmissible under HRE Rule 403,
as the danger of unfair prejudice substantially outweighs its
probative value.
First, as set forth below, Detective McCormick’s
testimony does not constitute lay opinion testimony subject to
the restrictions of HRE Rule 701. Second, the circuit court did
not abuse its discretion under HRE Rule 403 in allowing the
testimony.
1. Lay Opinion Testimony - HRE Rule 701
Under HRE Rule 701, lay opinion testimony is only
admissible if it is: (1) rationally based on the perception of
the witness; and (2) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.
“[A]dmission of opinion testimony is a matter within the
discretion of the trial court, and only an abuse of that
discretion can result in reversal.” State v. Toyomura, 80
Hawaii 8, 23-24, 904 P.2d 893, 908-09 (1995) (original brackets
omitted) (quoting State v. Tucker, 10 Haw. App. 73, 89, 861 P.2d
37, 46 (1993)).
We need not apply the standard for admissibility of lay
opinion testimony, as the testimony at issue does not constitute
opinion. Opinions are “beliefs, conclusions, and inferences that
are distinguishable from facts.” Addison M. Bowman, Hawaii
Rules of Evidence Manual § 701-1[1], at 7-1 (2018-19 ed.).
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Detective McCormick and Detective Coons - the lead homicide
detective and the scene detective assigned to investigate
Peneueta’s killing - both testified that their review of the
Chinatown surveillance footage contributed to the elimination of
Muna as a suspect in their investigation. This is a fact, rather
than a belief, conclusion, or inference. As such, this testimony
does not constitute inadmissible lay opinion testimony that Muna
was innocent.
2. Probative Value and Unfair Prejudice - HRE Rule 403
Relevant evidence may be excluded pursuant to HRE Rule
403 “if its probative value is substantially outweighed by the
danger of unfair prejudice[.]” The circuit court determined that
the testimony in question was probative to explain the steps that
HPD detectives took in order to fully investigate Peneueta’s
shooting, and permitted Detective McCormick’s testimony regarding
the elimination of Muna as a suspect.14 A trial court’s
balancing of the probative value of relevant evidence against the
prejudicial effect of such evidence under HRE Rule 403 is
reviewed for an abuse of discretion. Klafta, 73 Haw. at 115, 831
P.2d at 516.
Testimony describing the actions a police officer took
during the course of an investigation may be admitted into
14
The circuit court explained at the bench: “[T]he fairness of the
investigation, whether it’s full and fair and what decisions were made in the
course of the investigation, whether to focus on one or more individuals and
to exclude others is something for the jury to consider.”
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evidence. See State v. Feliciano, 2 Haw. App. 633, 636-67, 638
P.2d 866, 869-70 (1982) (hearsay statements may be admissible if
they are offered to explain a police officer’s conduct during an
investigation leading up to the defendant’s arrest). Even if the
testimony at issue were stricken, it would be apparent from other
facts in evidence that Muna was eliminated as a suspect in the
investigation, and that the Chinatown surveillance footage was
one of many pieces of evidence considered by the detectives in
ruling Muna out. The testimony therefore poses little danger of
unfair prejudice. Because the danger of unfair prejudice does
not substantially outweigh the testimony’s probative value, the
circuit court did not exceed the bounds of reason or otherwise
abuse its discretion in admitting the testimony at issue.
E. The Circuit Court Did Not Abuse its Discretion in Denying
Pasene’s Request to Excuse Juror No. 1
Pursuant to Hawaii Rules of Penal Procedure (HRPP)
Rule 24(c), it is within the trial court’s discretion to “replace
jurors who, prior to the time the jury retires to consider its
verdict, become or are found to be unable or disqualified to
perform their duties.” See State v. Jones, 45 Haw. 247, 262, 365
P.2d 460, 468 (1961) (“The rule is universally recognized that
the matter of excusing trial jurors lies in the discretion of the
trial judge.”). Pasene asked the circuit court to excuse Juror
No. 1, arguing that the juror’s interaction with Officer Le
demonstrated an unwillingness or inability to follow the circuit
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court’s instructions.
The circuit court denied Pasene’s request, finding
nothing about the juror’s interaction with Officer Le “remotely
touched upon the facts in this case,” and concluding that the
interaction was therefore “fairly innocuous.” We will not
interfere with a trial court’s ruling on a request to excuse a
juror unless “it patently appears” that: i) the ruling
constituted an abuse of discretion; and ii) the defendant was
denied a fair trial as a result. State v. Crisostomo, 94 Hawaii
282, 287, 12 P.3d 873, 878 (2000) (citing Jones, 45 Haw. at 262,
365 P.2d at 468).
Upon notification of their interaction, the circuit
court individually questioned Juror No. 1 and Officer Le as to
the substance and scope of the encounter. The circuit court then
sought and obtained specific assurances from Juror No. 1 that the
encounter would not affect the way he looked at the evidence or
the application of the law, or otherwise affect his ability to
serve as a juror. Finally, the circuit court allowed the DPA and
defense counsel an opportunity to question Officer Le and Juror
No. 1, and asked if either thought an inquiry with Juror No. 2
would be appropriate.
“The circuit court is in a better position than the
appellate court to ascertain from the answers of the juror
whether the juror is able to be fair and impartial.” State v.
Mark, 120 Hawaii 499, 537-38, 210 P.3d 22, 60-61 (App. 2009)
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(quoting State v. Cardus, 86 Hawaii 426, 438, 949 P.2d 1047,
1059 (App. 1997)) (internal quotation marks omitted). Because
the record reflects that the circuit court denied Pasene’s
request to excuse Juror No. 1 upon reasoned consideration
following proper inquiry, the circuit court’s ruling did not
clearly exceed the bounds of reason or disregard rules or
principles of law or practice. Thus, the circuit court did not
abuse its discretion in denying Pasene’s request to excuse Juror
No. 1.
F. The Circuit Court Abused its Discretion in Denying Pasene’s
Post-trial Motion for Mistrial or New Trial Based on
Prosecutorial Misconduct
“Prosecutorial misconduct may provide grounds for a new
trial if the prosecutor’s actions denied the defendant a fair
trial.” State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502
(1992) (citing State v. Pemberton, 71 Haw. 466, 796 P.2d 80
(1990). At trial, defense counsel made several motions for
mistrial due to prosecutorial misconduct. Pasene also filed a
post-trial motion for mistrial, or in the alternative for a new
trial, alleging prosecutorial misconduct prejudiced his right to
a fair trial. All of these motions were denied by the circuit
court.
The denial of a motion for mistrial or new trial “is
within the sound discretion of the trial court and will not be
upset absent a clear abuse of discretion.” State v. Furutani, 76
Hawaii 172, 178-79, 873 P.2d 51, 57-58 (1994) (citations
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omitted). “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.” Klinge,
92 Hawaii at 584, 994 P.2d at 516 (quoting State v. Rogan, 91
Hawaii 405, 412, 984 P.2d 1231, 1238 (1999)) (internal quotation
marks omitted).
In reaching this determination, we consider the
following 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. Id. Moreover,
[Even where] no single misstatement or other erroneous
remark standing alone would have sufficient
prejudicial weight to deprive the defendant of a fair
trial, the cumulative weight of such errors may create
an atmosphere of bias and prejudice which no remarks
by the trial court could eradicate. On appeal we must
determine 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. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336, 338 (1973)
(citation and internal quotation marks omitted).
Although each instance of the DPA’s improper conduct,
when examined in isolation, may not rise to the level of
misconduct warranting the vacation of Pasene’s convictions, as
set forth below, the cumulative effect of the DPA’s improper
conduct was so prejudicial as to deprive Pasene of a fair trial.
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See Klinge, 92 Hawaii at 596, 994 P.2d at 528.
1. Nature of the Conduct and Promptness of the Circuit
Court’s Curative Instructions
Below, we discuss the first two factors in our analysis
of prosecutorial misconduct together, highlighting the most
significant instances of the DPA’s improper conduct. Under the
first factor, we consider “the nature of the challenged conduct
in relation to our criminal justice system generally and the
special role of the prosecutor specifically.” State v.
Underwood, 142 Hawaii 317, 325, 418 P.3d 658, 666 (citing Rogan,
91 Hawaii at 412-15, 984 P.2d at 1238-41). With regard to the
second factor,
[We consider] the extent to which a trial court’s
instruction to the jury minimized or eliminated the
prejudicial effect of misconduct. Rogan, 91 Hawaii
at 415, 984 P.2d at 1241. 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.” Id. (quoting
State v. McGriff, 76 Hawaii 148, 160, 871 P.2d 782,
794 (1994)) (alteration in original).
Underwood, 142 Hawaii at 327, 418 P.3d at 668.
Much like in Pemberton, the record in the instant case
is replete with examples of the DPA's persistent failure -
whether willful or inadvertent - to abide by the circuit court’s
instructions, our case law and rules regarding the ethical
responsibilities of the prosecutor, and the American Bar
Association’s Criminal Justice Standards for the Prosecution. 71
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Haw. 466, 796 P.2d 80. The DPA’s improper statements pervaded
every phase of trial, prompting defense counsel to object
repeatedly. Some of these statements were particularly
prejudicial, as they injected facts not in evidence that directly
contradicted Pasene’s core theory of the case, or served to
denigrate fundamental constitutional protections guaranteed to
criminal defendants.
Although the circuit court was diligent in its efforts
to sustain defense counsel’s objections and to promptly issue
curative instructions to the jury where necessary, there were
occasions where the circuit court failed to sustain defense
counsel’s objections to improper statements by the DPA, and
failed to issue necessary curative instructions. Additionally,
“the 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 . . .
effect of focusing the jury’s attention on that evidence and the
fact that it was being suppressed.” Pemberton, 71 Haw. at 476,
796 P.2d at 85 (citation omitted).15
As such, with regard to the first two factors in our
analysis of prosecutorial misconduct, we conclude the circuit
court’s efforts were insufficient to eliminate the prejudicial
15
The circuit court acknowledged that evidence may be prejudicial
despite a prompt curative instruction, when it stated that it may be “easier
said than done” for the jury to disregard stricken testimony.
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effect of the DPA’s improper conduct.
a. The State’s Opening Statement
“An opening statement merely provides an opportunity
for counsel to advise an outline for the jury, the facts and
questions in the matter before them.” State v. Simpson, 64 Haw.
363, 369, 641 P.2d 320, 324 (1982) (citations omitted). It is
not an opportunity to present argument, nor is it an opportunity
to inject evidence that is otherwise inadmissible. See State v.
Sanchez, 82 Hawaii 517, 528, 923 P.2d 934, 945 (App. 1996).
The circuit court sustained six objections during the
State’s opening statement on the basis of improper argument. The
circuit court stated at the bench, “I’ve sustained many
appropriate objections raised at this point. You know what
argument is. You are engaging in argument. Do not do that.”
Yet, the DPA’s improper use of argument persisted. Although the
repetitive nature of this conduct is concerning, the DPA’s
argumentative statements were relatively innocuous and the
circuit court properly sustained defense counsel’s objections.
Thus, this improper conduct was not particularly prejudicial.
Significantly, however, the DPA also stated, “the
Chinatown cameras were able to capture Mr. Muna getting into the
taxi . . . and the timing allowed the police to eliminate Mr.
Muna as a suspect, because as the car . . . was driving away
. . . shots were heard.” Defense counsel objected to the DPA’s
statement and the circuit court admonished the DPA at the bench,
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questioning whether his conduct was “just inadvertent,” or
whether he was “blatantly disregarding the Court’s - the rulings
about the limitations of opening statement.” However, the
circuit court did not sustain or overrule the objection, or issue
a curative instruction.
As mentioned above, the Chinatown surveillance footage
referenced in this statement was not admitted at trial, and as a
result, the circuit court prohibited the State from introducing
evidence of its content. Thus, the DPA’s statement improperly
injected evidence that was not properly put before the jury. The
prejudicial nature of this statement is especially concerning, as
it asserted that video evidence directly contradicted Pasene’s
mistaken identity theory of the case - that Muna may have been
the driver of the blue Buick who shot Peneueta.16
The DPA’s comment was not corrected by the circuit
16
We note that video evidence can be particularly persuasive:
The persuasive power of videotape evidence . . . [is]
intuitively obvious: If a picture is worth a thousand
words, then how much more is a moving picture worth[?]
. . .
In the case of contemporaneous evidence, videotape is
unmatched in its ability to capture the nuances of the
setting and events that transpired.
. . .
[T]here is a strong tendency, for those who are used
to television as the primary medium for gaining news
and other information, to believe that any information
imparted via television is true. . . . Thus, jurors
may leap from the likely accuracy of the fact or
circumstance depicted in a videotape to a relatively
undiscriminating acceptance of inferences that are
claimed to be supported by the evidence . . . .
JORDAN S. GRUBER, 44 AM. JUR. TRIALS 171 § 42 (1992).
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court. Thus, the prejudicial effect of the improper statement
was not sufficiently cured.
Defense counsel moved for a mistrial following the
conclusion of the State’s opening statement “based on [the DPA’s]
continuous and pervasive use of argument during his opening
statement.” The circuit court denied the motion, but put the DPA
“clearly on notice,” warning him as follows:
[T]he fact that we’re in a third trial . . . should
certainly be clear to everybody and that we want to
make sure that everything is done as appropriately and
properly as possibly can be. You want a fair trial.
Mr. Pasene deserves a fair trial, as well. And
playing fast and loose with, perhaps, some of the
rules or conventions of court really is not going to
serve you well if you choose to do that. . . . [G]oing
forward I will full well expect you to conduct
yourself in a manner that I believe you are entirely
capable of doing, without the need to inject improper
statements, comments, or what have you.
(Emphasis added).
b. Evidence Phase of Trial
“Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop
the witness’ testimony.” HRE Rule 611(c) (2016). It is
undisputed by the State that the DPA improperly posed leading and
argumentative questions to Sakaria on redirect. However, in each
of the four instances raised on appeal, the circuit court
sustained defense counsel’s objection. After sustaining the
first objection, the circuit court asked the DPA to rephrase his
question. After sustaining the second objection, the circuit
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court struck the question from the record. After the circuit
court sustained the third objection, the DPA offered to rephrase
his question and the court asked him to “put the question to the
witness in a non-leading manner.” After the circuit court
sustained the fourth objection, the DPA concluded his redirect
examination.
Defense counsel again moved for a mistrial, arguing
that the DPA’s improper conduct was depriving Pasene of a fair
trial, despite the circuit court’s efforts to sustain his
objections and issue curative instructions. The circuit court
denied the motion, but again warned the DPA:
I’m here to tell you that you need to give some
thought to how you intend to proceed during the
balance of this trial, because in the end the record
is going to bear out what it does and I make no
promises with respect to how I choose to address those
particular circumstances. At this point two motions
have been made; they’re denied. And –- but going
forward, Mr. Pasene is entitled to a fair trial.
You’re entitled to a fair trial. But when we start
injecting these types of completely unavoidable
circumstances into the case, it really does no one any
good, and it does not further the search for the truth
and the decision that this jury has to make. So I’m
telling you as straight as I possibly can. You need
to be a lot clearer and more circumspect in terms of
the form of the questions you pose.
We generally "consider a curative instruction
sufficient to cure prosecutorial misconduct because we presume
that the jury heeds the court's instruction to disregard improper
prosecution comments." State v. Wakisaka, 102 Hawaii 504, 516,
78 P.3d 317, 329 (2003) (citation omitted). Here, the circuit
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court acted properly to promptly sustain each of defense
counsel’s objections and to issue curative instructions where
necessary. As such, the circuit court’s actions were sufficient
to cure the impropriety of the DPA’s conduct.
c. The State’s Closing Argument
A prosecutor is allowed wide latitude in discussing the
evidence during closing argument. Rogan, 91 Hawaii at 412, 984
P.2d at 1238. Prosecutors may “state, discuss, and comment on
the evidence as well as draw all reasonable inferences from the
evidence.” Id. (citations omitted). “In other words, closing
argument affords the prosecution . . . the opportunity to
persuade the jury that its theory of the case is valid, based
upon the evidence adduced and all reasonable inferences that can
be drawn therefrom.” Id. at 413, 984 P.2d at 1239 (citation
omitted).
However, this latitude is not without limit. “[T]he
scope of [the prosecutor’s] argument must be consistent with the
evidence and marked by the fairness that should characterize all
of the prosecutor’s conduct.” Id. (quoting ABA Prosecution
Function Standard 3-5.8(a)). “A prosecutor exceeds the
acceptable scope of closing argument when a statement cannot be
justified as a fair comment on the evidence but instead is more
akin to the presentation of wholly new evidence to the jury,
which should only be admitted subject to cross-examination, to
proper instructions and to the rules of evidence. Underwood, 142
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Hawaii at 326, 418 P.3d at 667 (quoting State v. Basham, 132
Hawaii 97, 112, 319 P.3d 1105, 1120 (2014) (internal quotation
marks omitted).
i. Sylvia Hall
With regard to Hall, the DPA stated, “who benefits if a
mentally handicapped person is the registered owner [of the blue
Buick]?” In response to defense counsel’s objection, the circuit
court instructed the jury to disregard the DPA’s statement. At
the bench, the circuit court explained to the DPA that there was
no evidence in the record that Hall was intellectually disabled,
and opined that the DPA’s statement made an unfair inference that
“conjures up a different sort of scenario.” Defense counsel
again moved for a mistrial, but the motion was denied. Following
conclusion of the conference, the circuit court reminded the jury
that “the Court sustained the objection, instructed you to
disregard in its entirety the last statement of the [DPA] that
Ms. Hall was . . . mentally handicapped. There was no evidence
of the kind introduced at trial, so you will disregard that and
not consider it for any purpose whatsoever.”
The DPA’s statement was improper, as it presents new
and unsupported evidence to the jury. The statement poses
further danger of prejudice to Pasene’s defense as it implies not
only that Hall was intellectually disabled, but also that someone
- perhaps Pasene - took advantage of that disability in order to
avoid culpability for criminal activity. However, the
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statement’s prejudicial effect was sufficiently negated by the
circuit court’s prompt and thorough curative instruction.
ii. Chinatown Surveillance Footage
“A prosecutor’s comment on matters outside the evidence
is improper.” State v. Walsh, 125 Hawaii 271, 290-91, 260 P.3d
350, 369-70 (2011) (quoting State v. Tuua, 125 Hawaii 10, 14,
250 P.3d 273, 277 (2011)) (internal quotation marks omitted).
Similar to his improper comment in the State’s opening statement,
in the State’s closing argument, the DPA asserted that detectives
McCormick and Coons eliminated Muna as a suspect because “they
went to the Chinatown station and they looked at the camera, and
they saw a person that looked like Cedro Muna[.]” The circuit
court sustained defense counsel’s objection and admonished the
DPA at the bench as follows:
[T]here’s no evidence . . . of what they saw on the
video. There’s evidence that the video was viewed,
and that was part of the evidence or information they
used to essentially continue their investigation
further, but there was absolutely no evidence with
respect to what was seen on the video. And your
statement during closing argument . . . is injecting
information that was never provided to this
jury. . . .
[Y]ou have to confine your arguments to the evidence
that’s been adduced. . . .
And, you know, at this point, I’ve told you ad nauseam
that you have to confine your arguments and
questioning during this case to what’s appropriate.
And for whatever reason, you’re either incapable of
doing that or you refuse. I’m not sure what it is,
but there’s no excuse for it.
Defense counsel again moved for mistrial. The motion
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was denied. Following conclusion of the bench conference, the
circuit court “specifically instructed” the jury to “completely
disregard in its entirety the last statement made by the [DPA]
with respect to what may or may not have been observed by law
enforcement utilizing the Chinatown surveillance system as to Mr.
Muna or anything else for that matter. And so you are not to
consider it in any way, shape, or form in your deliberations.”
Again, although the HPD detectives testified that they
eliminated Muna as a suspect based, in part, on their review of
Chinatown surveillance footage, the footage itself was not
admitted into evidence and the circuit court specifically
prohibited the State from eliciting testimony regarding its
content. Therefore, the DPA’s comment was clearly improper.
This statement poses a heightened danger of prejudice to Pasene’s
defense, given the fact that the DPA similarly invoked the
content of the Chinatown surveillance footage in the State’s
opening statement and implied that it directly contradicted
Pasene’s mistaken identity defense. Thus, even though the
circuit court promptly issued a curative instruction, the repeat
nature of the DPA’s improper conduct and its centrality to
Pasene’s defense raise concerns about the cumulative effect of
such conduct. See Pemberton, 71 Haw. at 476, 796 P.2d at 85.
iii. Taxi Driver Identification
The DPA also stated, “[w]ho else IDs Mr. Pasene?
Darren [Kawelolani,] the taxi driver.” Defense counsel objected
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on the grounds that “Kawelolani never identified Mr. Pasene.”
Kawelolani testified that he picked up two passengers
in his taxi cab and saw a male drive by in a blue Buick shortly
before he heard gunshots. He later saw someone on the news and
thought “that’s the person that . . . passed me.” Muna testified
that he got into a taxi cab at the same time and place, and saw
Pasene drive by in the blue Buick. Thus, if the jury found both
Kawelolani and Muna’s testimony to be credible, an inference
could be drawn that Pasene was the person that Kawelolani saw
driving the blue Buick. The jurors were not left to make this
assessment, however, as the DPA made it for them.
The circuit court overruled defense counsel’s objection
to the statement and denied defense counsel’s request for a
curative instruction.17 It asked the DPA to clarify his
statement, which he did by accurately representing the evidence
and explaining the inferences that could be drawn therefrom.
However, neither the DPA or the circuit court communicated to the
jury that the DPA’s original assertion - that Kawelolani
identified Pasene as the driver - was untrue.
The DPA’s statement was improper, as Kawelolani did not
17
This court has held that overruling an objection can in effect
endorse the prosecutor’s remarks. See State v. Espiritu, 117 Hawaii 127,
143, 176 P.3d 885, 901 (2008) (Because defense counsel's objections to
prosecutor's misstatement during closing argument were overruled, “the jury
would reasonably perceive that the misstatement of the law was not
incorrect.”); State v. Schnabel, 127 Hawaii 432, 453, 279 P.3d 1237, 1258
(2012) (“[B]y overruling defense counsel's objection, the court, at least
tacitly, placed its imprimatur upon the [prosecutor's] improper remarks.”)
(citation, internal quotation marks and original brackets omitted).
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directly identify Pasene as the driver of the blue Buick.
Moreover, the DPA’s statement was prejudicial to Pasene’s
defense. Sakaria and Tagataese had been friends with Peneueta
for over 20 years and Pasene was the last remaining defendant
being prosecuted for Peneueta’s killing. In his closing
argument, defense counsel questioned Sakaria and Tagataese’s
credibility by suggesting that they wanted to facilitate Pasene’s
conviction in order to ensure someone would be held accountable
for Peneueta’s killing. Kawelolani, however, appears to be a
disinterested third party witness without direct ties to
Peneueta, Pasene, or Muna. Thus, by implying that Kawelolani
directly corroborated the eye-witness identifications made by
Sakaria and Tagataese, the DPA’s statement strengthened the
State’s case against Pasene.
Because the circuit court overruled defense counsel’s
objection and did not issue a curative instruction, the
prejudicial effect of the DPA’s statement was not sufficiently
addressed by the circuit court.
iv. Asking the Jury to Place Themselves in the
Shoes of Eye-Witnesses
Defense counsel objected to the DPA’s discussion of
Sakaria and Tagataese’s testimony, arguing that the DPA
improperly asked the jury to place themselves in the shoes of the
witnesses in assessing their credibility. The circuit court did
not sustain or overrule the objection, but asked the DPA to
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rephrase.
The DPA then stated:
Imagine a person has a friend for over 20 years and .
. . two guys jump out, and they shoot him in his back
and kill him and that’s your good friend. . . . You,
as a friend, would want the person who shot your close
friend to be held and come to justice, so you’re going
to tell the truth if you’re a friend and he was a
friend for over 20 years.
(Emphases added).
Defense counsel did not object and the statement went
unaddressed by the circuit court. Pasene now argues the DPA’s
statement was an improper attempt to elicit the jury’s sympathy
and passion. However, in context, the DPA’s statements entreated
the jury to use their life experiences to judge the credibility
of the witness’ testimony, rather than asking the jury to put
themselves in the witnesses’ position. Unlike in Rogan, the
DPA’s invitation to consider the perspective of the witnesses was
not accompanied by a “blatantly improper” plea for sympathy. Cf.
91 Hawaii at 414, 984 P.2d at 1240 (prosecutorial misconduct
warranted reversal of a conviction where the prosecutor made a
“blatantly improper plea to evoke sympathy for the Complainant’s
mother and represented an implied invitation to the jury to put
themselves in her position.”). Thus, the DPA’s statement was not
improper.
d. The State’s Rebuttal Closing
In his closing argument, defense counsel stressed the
presumption of innocence and emphasized that the question before
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the jury was whether the State proved beyond a reasonable doubt
that Pasene killed Peneueta. Defense counsel then highlighted
evidence suggesting Muna, rather than Pasene, may have been one
of Peneueta’s killers. Defense counsel submitted to the jury
that this evidence showed the State had failed to carry its
burden of proof.
The DPA opened the State’s rebuttal closing by stating,
“[defense counsel] had this nice drawing of presumption of
innocence, blah, blah, blah, right, it’s our burden, and we’re
over here and he draws a stick man.” The circuit court overruled
defense counsel’s objection to the DPA’s “blah, blah, blah”
comment, effectively endorsing it, rather than issuing a curative
instruction.18
A prosecutor’s comment is clearly misconduct where it
“constitute[s] an impermissible attack on defense counsel’s
integrity” and “operate[s] to denigrate the legal profession in
general.” Klinge, 92 Hawaii at 595, 994 P.2d at 527. Moreover,
the presumption of innocence and the State’s burden of proving
every material element of the offenses charged beyond a
reasonable doubt are fundamental protections under our
constitution that were central to Pasene’s mistaken identity
defense.
In mocking defense counsel’s portrayal of these
18
See supra, note 17.
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fundamental principles, not only did the DPA denigrate defense
counsel and the legal profession in general, he also improperly
denigrated the constitutional protections that were at the heart
of Pasene’s defense. Because the circuit court overruled defense
counsel’s objection to the DPA’s statement, it failed to issue a
curative instruction sufficient to overcome the prejudicial
nature of the improper conduct.
The DPA also stated, “John Gotti, when he goes to
trial, he’s presumed innocent. Charles [Manson] . . . .” The
court sustained defense counsel’s objection and instructed the
jury to “disregard the last statements of the prosecutor.”
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.” Rogan, 91 Hawaii at
413, 984 P.2d at 1239 (quoting ABA Prosecution Function Standard
3-5.8(c) (3d ed. 1993) and the 1979 commentary to that section)
(internal quotation marks omitted). While it cannot be said that
the DPA’s statement was calculated to inflame the passions or
prejudices of the jury, that was likely the result. As the
circuit court acknowledged, referencing such notorious examples
of heinous murderers during the State’s rebuttal closing in a
murder trial may lead the jury to react based on emotion, rather
than in an objective way, and threatens to introduce “an
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atmosphere of bias and prejudice” as the jury enters
deliberation. Kahalewai, 55 Haw. at 129, 516 P.2d at 338. Thus,
although the circuit court promptly issued a curative
instruction, it may not have sufficiently negated the prejudicial
impact of the DPA’s statement.
e. Conclusion
In conclusion, with regard to the first factor in our
analysis of prosecutorial misconduct, we find the nature of the
DPA’s improper conduct weighs heavily in favor of vacating
Pasene’s convictions. As an officer of the court, the prosecutor
is expected to know and abide by the standards of professional
conduct, to operate in accordance with the interests of justice,
and to act with due regard for fairness and the rights of the
defendant. Standards 3-1.2 and 3-1.9, ABA Standards for Criminal
Justice (4th ed. 2015). Attempts to refer to evidence that has
been specifically excluded by the circuit court, and to denigrate
core constitutional protections such as the presumption of
innocence, undermine the integrity of the criminal justice
system. Moreover, the repetitive nature of the DPA’s improper
conduct, despite multiple warnings and admonishments from the
circuit court, raises the question of whether this pattern of
behavior was purposeful.
With regard to the second factor in our analysis of
prosecutorial misconduct, in response to the DPA’s improper
conduct, the circuit court properly sustained the majority of
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defense counsel’s objections and generally issued curative
instructions to the jury where necessary. However, there were
occasions where defense counsel failed to object, the circuit
court overruled defense counsel’s objections, or the circuit
court failed to issue necessary curative instructions. Several
of those instances involved improper conduct that directly
impacted Pasene’s theory of defense. As such, because it cannot
be said that the circuit court’s efforts were sufficient to
eliminate the cumulative prejudicial effect of the conduct, this
factor also weighs in favor of vacating the convictions.
Pemberton, 71 Haw. at 476, 796 P.2d at 85.
2. Strength or Weakness of the Evidence Against Pasene
The State’s evidence against Pasene included testimony
from Sakaria and Tagataese, who identified Pasene as the driver
of the blue Buick sedan and one of Peneueta’s killers. The State
also presented Officer Le’s testimony that Pasene used the Phone
and the blue Buick sedan in the weeks leading up to Peneueta’s
killing, in conjunction with the cell phone site records
purporting to show the Phone, and therefore Pasene, was in
Chinatown around the time of Peneueta’s killing, and in Wahiawā
at around the time the blue Buick sedan was reported burning.
The State also elicited testimony from detectives McCormick and
Coons regarding their investigation of the shooting and the
factors that led them to eliminate Muna as a suspect.
To support his mistaken identity defense, Pasene
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presented evidence that Muna, rather than Pasene, may have been
one of Peneueta’s killers. Muna generally resembled Pasene in
dress and appearance, and was, even by his own account, in the
general vicinity of Peneueta’s killing around the time it
occurred. Moreover, the blue Buick sedan was previously
registered to Muna, and Pasene testified that he borrowed the car
from Muna prior to Peneueta’s killing. In addition, Muna’s bail
bond agent, Del Rio, testified that on the day of Peneueta’s
shooting, Muna admitted that he “shot someone,” and that he tried
to use the blue Buick as collateral just one day prior.
Although the evidence supporting Pasene’s convictions
was strong, it cannot be said that the DPA’s improper comments
did not contribute to the jury’s determination of guilt. In
reaching this conclusion, we note that two prior trials ended in
mistrials when the juries were unable to reach unanimous
verdicts. Because there is a reasonable possibility that the
DPA’s improper statements might have contributed to Pasene’s
convictions, the statements cannot be said to be harmless beyond
a reasonable doubt. Thus, in denying Pasene’s post-trial motion
for mistrial or new trial, the circuit court clearly disregarded
principles of law to Pasene’s substantial detriment. As such,
Pasene’s convictions must be vacated.
III. CONCLUSION
For the reasons set forth herein, we vacate the ICA’s
Judgment on Appeal and the circuit court’s Amended Judgment of
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Conviction and Sentence, and remand the case to the circuit court
for further proceedings consistent with this opinion.
Thomas M. Otake /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Matthew J. Viola
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