Four Instances of Prosecutorial Misconduct

State v. Suan (ICA August 26, 2009)

Background. Suan was charged with unauthorized control of a propelled vehicle (HRS § 708-836). At trial, the woman whose car was stolen and two police officers testified against Suan. Suan called two alibi witnesses and he himself testified. At closing, the prosecutor made several comments without objection.

Bolstering Witnesses was Prosecutorial Misconduct. "Prosecutors are bound to refrain from expressing their personal views as to a defendant's guilt or credibility of witnesses." State v. Sanchez, 82 Hawai'i 517, 534, 923 P.2d 934, 951 (App. 1996). During her closing argument, the prosecutor told the jury that the officers who testified against Suan "have integrity" and that "their testimony really is a testament to the fact that the system does work. They were telling the truth. They have integrity. They could have come in here no reports, told you anything. They didn't." The ICA held her comment was improper because even though she did not refer to herself, she nonetheless expressed her personal view of the police officers' credibility.

Shifting the Burden to the Defendant to Show an Alibi was Prosecutorial Misconduct. At closing "the prosecution may invoke the adverse inference against the defendant for his [or her] failure to call a witness when it would be natural under the circumstances for the defendant to call that witness and when the comments do not suggest to the jury that it was the defendant's burden to produce proof by explaining the absence of witnesses or evidence." State v. Mainaaupo, 117 Hawai'i 235, 257, 178 P.3d 1, 23 (2008). Here, the prosecutor told the jury that "[w]hen you are bringing up an alibi defense, it's highly likely you're going to bring everybody and their brother's mother's neighbor to say yes, I was someplace else." The ICA held that this comment was improper because it "suggested to the jury that it was Suan's burden to explain the absence of witnesses." The ICA also noted that it was not "natural under the circumstances" for Suan to call the people mentioned by the prosecutor.

Injection of Personal Views was Prosecutorial Misconduct. Prosecutors cannot suggest to the jury that the State would have never brought the case if the defendant was not guilty. State v. Morris, 72 Haw. 527, 529, 825 P.2d 1051, 1052 (1992); State v. Palisbo, 93 Hawai'i 344, 360, 3 P.3d 510, 526 (App. 2000) (statement "We do not prosecute innocent people" was "obviously improper"). Here, the prosecutor told the jurors that the "purpose of the State today in this case is not to convict an innocent person." According to the ICA, this statement may not have referred to the prosecutor directly, but it certainly had the "effect of the telling the jury that the Prosecutor would not have prosecuted the case unless Suan was guilty." The ICA held that her statement was improper and that the circuit court plainly erred in allowing the statement.

Diverting the Jury from its duty to Decide the case Based on Evidence was Prosecutorial Misconduct. The prosecutor told the jury that "[r]esources, time, and dollars of the taxpares are spent to seek justice in this case for" the complaining witness. The ICA, citing State v. Sanchez and the ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8(d), held that this statement was improper because "it injected issues broader than Suan's guilt or innocence under the controlling law into the case and, in effect, diverted the jury from its duty to decide the case based on evidence."

The Cumulative Effect was not Harmless Error. ICA held that the four comments had a cumulative effect and it could not "conclude beyond a reasonable doubt that the Prosecutor's conduct did not contribute to Suan's contribution" and vacated the judgment. See State v. Sanchez, 82 Hawai'i at 534, 923 P.2d at 951 ("the cumulative effect of the prosecutor's misconduct was to deny Defendant a fair trial."); State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986) ("prosecutor's comments, taken as a whole, substantially prejudiced [defendant's] right to a fair trial.").

Plain Error too? It is noteworthy here that the defense in this case did not object to any of the four comments. Thus, the ICA reviewed this case for plain error. Hawai'i Rules of Penal Procedure Rule 52(b). The appellate court will recognize plain error "when the error committed affects substantial rights of the defendant." State v. Staley, 91 Hawai'i 275, 282,982 P.2d 904, 911 (1999). Moreover, plain error is "to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system[.]" State v. Nichols, 111 Hawai'i 327, 335, 141 P.3d 974, 982 (2006).

Plain v. Harmless Error: the Perennial Problem. The ICA reviewed all four comments and held that they were indeed improper prosecutorial misconduct. The ICA also held that the cumulative effect harmful and constituted a reasonable possibility to the conviction. HRPP Rule 52(a). But on top of that it seems that this was all plain error affecting the substantial rights of the defendant. After all, the defense counsel never objected. What would have happened if the prosecutor only made one comment? Would there have been a cumulative effect warranting reversal? Perhaps not. To determine if reversal based on prosecutorial misconduct is warranted, the error must not be harmless beyond reasonable doubt. State v. Espiritu, 117 Hawai'i 127, 140-41, 176 P.3d 885, 898-99 (2008).

So it seems that if the prosecutor only made one of these improper comments, it could have withstood appellate review. But what if defense counsel objected? Would that mean that plain error is out of the equation (it's unclear where the plain error analysis was in this case anyway)? Does that put the single comment at issue again? Could it have still withstood review? This is the perennial problem of harmless error running up against plain error.

A Procedural Note. This case was originally issued as an unpublished disposition, but the ICA granted Suan's motion for publication and now it is precedent. This is the 2d time the ICA granted a motion for publication in 2009.