State v. Hirata ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-NOV-2021
07:52 AM
Dkt. 74 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CHANSE HIRATA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
A jury found Defendant-Appellant Chanse Hirata guilty
of Continuous Sexual Assault of a Minor Under the Age of Fourteen
Years. Hirata appeals from the Judgment of Conviction and
Sentence entered by the Circuit Court of the First Circuit on
August 5, 2019.1 For the reasons explained below, we affirm the
Judgment.
Hirata was indicted by an O#ahu grand jury on June 29,
2018. He was charged with Continuous Sexual Assault of a Minor
Under the Age of Fourteen Years, in violation of Hawaii Revised
Statutes (HRS) § 707-733.6. He pleaded not guilty.
Trial began on May 9, 2019. The complaining witness
(CW) was 11 years old at the time of trial. CW's mother (Mother)
and Hirata's girlfriend (CW's Aunt) are sisters. CW called
Hirata "Uncle Makani." Hirata and Aunt lived with Hirata's
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The Honorable Catherine H. Remigio presided.
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parents and brother. Hirata and Aunt began watching CW when CW
was a baby, while Mother was finishing high school. CW would
stay overnight at Hirata's and Aunt's house once a week from the
time she was five or six years old until she turned ten.
CW testified that Hirata began touching her when she
was around seven years old. Hirata kissed CW and put his tongue
in her mouth more than 10 times, on different days. Hirata put
his penis in CW's mouth more than 10 times, on different days.
Hirata touched CW's breasts with his hands or mouth more than 10
times, on different days. Hirata put his fingers in CW's vagina
more than 10 times, on different days. Hirata put his tongue
inside CW's vagina more than 10 times, on different days. Hirata
put his finger in CW's anus more than 10 times, on different
days. Hirata put his tongue in CW's anus more than 10 times, on
different days. Hirata put his penis in CW's anus one or two
times. Hirata grabbed CW's hands and moved them "up and down" on
his penis more than 10 times, on different days. CW described
several of the incidents in more detail in response to further
questions.
Hirata testified in his own defense. He denied all of
CW's allegations.
On May 16, 2019, the jury found Hirata guilty as
charged. The Judgment was entered on August 5, 2019. Hirata was
sentenced to 20 years in prison with credit for time served.
This appeal followed.
Hirata contends that he was denied a fair trial because
the deputy prosecuting attorney (DPA) committed misconduct during
closing argument. Hirata did not object to any part of the
State's closing or rebuttal arguments.
Normally, an issue not preserved at trial is deemed to be
waived. But where plain errors were committed and
substantial rights were affected thereby, the errors may be
noticed although they were not brought to the attention of
the trial court. Accordingly, an alleged error may be
corrected on appeal unless it was harmless beyond a
reasonable doubt.
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State v. Salavea, 147 Hawai#i 564, 601, 465 P.3d 1011, 1048
(2020) (Nakayama, J., dissenting) (cleaned up).
"A defendant's contention . . . that prosecutorial
misconduct resulted in the denial of the defendant's right to a
fair trial is a question of constitutional law, which we review
de novo." Salavea, 147 Hawai#i at 575, 465 P.3d at 1022
(citation omitted). "When reviewing allegations of prosecutorial
misconduct, the following factors are considered: (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. at 581, 465 P.3d at 1028 (citation omitted).
1. Nature of the conduct.
Hirata argues that the DPA improperly offered her
personal opinions about the witnesses' credibility. It is
"well-established under Hawai#i case law that prosecutors are
bound to refrain from expressing their personal views as to a
defendant's guilt or the credibility of witnesses." Salavea, 147
Hawai#i at 582, 465 P.3d at 1029 (quoting State v. Basham, 132
Hawai#i 97, 115, 319 P.3d 1105, 1123 (2014)) (additional
citations omitted). "Prosecutors may, however, cite to specific
facts or evidence indicating the lack of trustworthiness of the
witness or defendant when discussing a witness or defendant's
testimony during summation." Id. (underscoring added) (citing
State v. Walsh, 125 Hawai#i 271, 295, 260 P.3d 350, 374 (2011)
("[T]he prosecution is free to refer to the specific
inconsistencies and contradictions in a defendant's testimony or
with other evidence.") (underscoring added)).
In closing argument the DPA told the jury:
Now, at the beginning of this trial I told you you
were not gonna hear about DNA evidence. You weren't gonna
see surveillance videos. You weren't gonna hear from
eyewitnesses because in a case like this, there is [sic]
none. But you would hear from the one person that lived
through it, and at the end of this, it comes down to that
one person, comes down to [CW]. And it also comes down to
one question, is [CW] believable?
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Now, the Court gave you the jury instructions that you
all have in front of you, and on page 8, there are [sic] a
list of factors that you can consider when you deliberate to
determine if a witness is credible. So you look at their
demeanor, their candor, lack of motive, and if what they say
makes sense.
So when you look at the factors -- and I'll go through
them with you, ladies and gentlemen -- the answer is clear
to this question. Yes, [CW] is believable. And because
[CW] is believable, it's -- it is the testimony that has a
convincing force upon you that counts, and the testimony of
even a single witness, if believed, can be sufficient to
prove a fact.
So let's go through the factors of [CW]'s credibility.
The DPA then argued about specific facts and evidence supporting
the credibility of CW's testimony. She cited testimony by CW,
Mother, CW's father, a police officer and police detective who
separately interviewed CW, a physician who examined CW, and the
clinical psychologist who was qualified as an expert in clinical
psychology with an expertise in the dynamics of child sexual
abuse. The DPA did not simply express her personal view about
CW's credibility. The argument was not improper. Salavea, 147
Hawai#i at 582, 465 P.3d at 1029.
However, the DPA also argued:
Now, in a few moments, the defense is gonna get the
opportunity to speak to you, and you heard from the
defense's witnesses, his mom, his dad, his girlfriend. And
you have to gauge their credibility with the same factors as
we discussed earlier that are on page 8 of your jury
instructions.
Additionally, the defendant also testified, and the
jury instructions say that when a defendant testifies, his
credibility is to be tested in the same manner as any other
witness. So we still need to use -- or you still need to
use those factors on page 8.
So is the defense's story believable? We look at the
same factors. They have bias. They have a motive to lie.
What they said doesn't make sense, and at times, they even
contradicted each other. The defense's story is not
believable, and this is what their story is.
They never saw anything, none of them. His mom, his
dad, his girlfriend never saw anything. Never. So because
they didn't see anything, it never happened. But we know
that this happened at night when they were sleeping. His
mom and dad were in a separate room. They didn't even know
where [Hirata], [CW], [Aunt] were. They couldn't have seen
anything.
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(Emphasis added.) In State v. Austin, 143 Hawai#i 18, 422 P.3d
18 (2018), a majority of the supreme court held that "a
prosecutor's assertion that a defendant or witness lied to the
jury is improper and should not be permitted." Id. at 56, 422
P.3d at 56.2 The DPA's argument about Hirata's parents and his
girlfriend's (Aunt's) not having the ability to perceive Hirata's
alleged misconduct was supported by reference to specific
evidence.3 However, it was improper to argue they had "a motive
to lie."
As to Hirata's credibility, the DPA did not refer to
any specific facts or evidence showing that Hirata had a motive
to lie. "A statement about a witness's credibility that is made
without reference to the evidence or facts supporting the
assertion amounts to an expression of personal opinion."
Salavea, 147 Hawai#i at 582, 465 P.3d at 1029 (citation omitted).
The DPA's argument suggested to the jury that Hirata had a motive
to lie simply because he was the defendant. "[A] prosecutor
cannot ask the jury to infer a defendant's lack of credibility
based solely on the fact that [they are] a defendant." Basham,
132 Hawai#i at 117, 319 P.3d at 1125. Prosecutors are prohibited
from making "generic arguments regarding a defendant's
credibility"; that is, "arguments that are uncoupled from
evidence showing the defendant has a particular interest in the
outcome separate from the generic interest shared by all
defendants in criminal cases." Salavea, 147 Hawai#i at 585 n.29,
465 P.3d at 1032 n.29. A categorical "suggestion that defendants
have no reason to tell the truth impinges upon fundamental
principles of our system of justice, including the presumption of
2
Austin was decided on June 29, 2018, almost one year before the
DPA gave her closing argument in Hirata's case.
3
The DPA argued, "we know that this happened at night when
[Hirata's parents] were sleeping. His mom and dad were in a separate room.
They didn't even know where [Hirata, CW, and Aunt] were. They couldn't have
seen anything." The DPA also cited the conflict in testimony between Hirata
and Aunt (who said "they were [both] there every night") and Hirata's parents
(who said Aunt "wasn't there -- around all the time").
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innocence, the burden of proof upon the government, the right to
testify without penalty, and the right to a fair trial with an
unbiased jury." Basham, 132 Hawai#i at 116, 319 P.3d at 1124.
2. Curative instruction.
No curative instruction was given because Hirata did
not object to the DPA's argument.
3. Evidence against the defendant.
The evidence against Hirata was overwhelming. The
trial was more than a swearing contest between the complaining
witness and the defendant, as was the case in State v. Rogan, 91
Hawai#i 405, 415, 984 P.2d 1231, 1241 (1999) ("There were no
independent eyewitnesses or conclusive forensic evidence[.] . . .
[T]his case was based on the Complainant's version of the events
against Rogan's version."). In this case, the testimony by CW,
Mother, CW's father, the police officer and police detective who
separately interviewed CW, the physician who examined CW, and the
clinical psychologist who testified as an expert in the dynamics
of child sexual abuse was consistent and compelling. The
witnesses who testified for Hirata (his parents and girlfriend)
were subject to impeachment for lack of opportunity to perceive.
"Where evidence of guilt is so overwhelming as to outweigh the
inflammatory effect of improper comments, [the supreme] court has
held the error harmless beyond a reasonable doubt and has
declined to vacate the defendant's conviction." Austin, 143
Hawai#i at 56, 422 P.3d at 56 (Pollock, J., concurring in part)
(citation omitted).
Here, the DPA's misconduct was limited and was not
repeated. Thus, "[g]iven the strength of the evidentiary record
in this case . . . there is not a reasonable possibility that the
jury would have reached a different verdict in the absence of the
prosecutor's improper comment[]. The misconduct was therefore
harmless beyond a reasonable doubt." See Austin, 143 Hawai#i at
56-57, 422 P.3d at 56-57 (Pollock, J., concurring in part).
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For the foregoing reasons, the Judgment entered by the
circuit court on August 5, 2019, is affirmed.
DATED: Honolulu, Hawai#i, November 12, 2021.
On the briefs:
/s/ Katherine G. Leonard
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
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