Prosecutors Cannot call People Liars (and Other Things they can’t do)

State v. Austin (HSC June 29, 2018) Part II. For Part I Click HERE.

Background. Edith Skinner was an 89-year-old woman, who enjoyed swimming at the Elks Club in Honolulu. She lived alone at an apartment in Waikiki, which was generally restricted to low-income and elderly tenants. Skinner’s body was discovered on July 25, 1989. Her body was lying on top of the bed. There were no signs of a struggle within the apartment.

The doctor performing the autopsy on Skinner’s body concluded that Skinner suffocated as a result of manual strangulation. The doctor also recovered black or dark-colored pubic hair, which stood out from Skinner’s light-colored hair. The hair was preserved as evidence. Semen was also discovered in Skinner’s vagina. The case went cold after that.

In 2005, the fluid found on Skinner’s body was tested for its DNA and compared with a database. It found a match with Gerald Austin, a white male. Police got a warrant to search Austin’s body and took saliva samples from his mouth. The fluid found on Skinner was confirmed to match Austin’s DNA.

Austin spoke to the police and said that he was familiar with the apartment complex because his grandmother used to live there and he would visit. He did not recognize Edith Skinner by name or by a picture of her. He denied ever going into her apartment, sexually assaulting Skinner, and killing Skinner. He could not remember where he was on July 25, 1989.

Austin was indicted with murder in the second degree. At trial, Austin testified that he was 29 years old in 1989. He testified that he was visiting his grandmother when he met an elderly woman, went to her apartment, and had consensual sex with her. He never made the connection that that woman was later found dead.

During his closing argument, the prosecutor argued that Austin lied to the police when he was interrogated and lied to “you” on the witness stand. He also argued that Austin had no alibi and could not corroborate his testimony. The prosecutor in going through elements of murder told the jury that it did not need find that Austin had the intent to kill. He also argued a narrative of what happened when Austin went into Skinner’s apartment. The prosecutor summarized that the jurors should “vote quickly.”

The defense argued that the prosecutor’s characterization of Skinner as a “frail, old lady” is wrong and emphasized her active social life, and that she swam every week. The prosecutor rebutted that there was no evidence about Skinner swimming weekly. The defense made no objection until after the jury was excused; then he argued that the prosecutor should not have made repeated characterizations that Austin had lied.

Austin was found guilty as charged. Austin filed a motion for new trial based on the prosecutor’s arguments. The motion was denied. Austin appealed. The case was transferred directly to the HSC.

The Standard of Prosecutorial Misconduct. “Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant’s right to have a fair trial.” State v. Clark, 83 Hawaii 289, 304, 926 P.2d 194, 209 (1996). Determining prosecutorial misconduct hinges on three factors (1) the nature of the alleged misconduct; (2) the promptness or lack of a curative instruction; and (3) the strength or weakness of the evidence against the defendant. Id.

Austin contends that several parts of the prosecutor’s arguments arose to misconduct. The HSC addressed each one.

Arguing that Austin had no Alibi was Impermissible Burden-Shifting (but it was Harmless). Austin contended that the prosecutor’s argument that he had no alibi and he could not corroborate his testimony was an impermissible shift of the burden of proof. Austin did not object to these comments at trial. When the defense does not object, plain error can still be recognized if it affected the defendant’s substantial rights. Id.

“[T]he burden is always upon the prosecution to establish every element of [a] crime by proof beyond a reasonable doubt, never upon the accused to disprove the existence of any necessary element.” State v. Cuevas, 53 Haw. 110, 113, 488 P.2d 322, 324 (1971). Efforts to shift the burden away from the prosecution onto the defendant are improper and unconstitutional. State v. Hauge, 103 Hawaii 38, 55-56, 79 P.3d 131, 148-149 (2003). The HSC agreed with Austin that the comments about having no alibi and the fact that Austin could not corroborate his testimony amounted to burden shifting. However, it was harmless beyond a reasonable doubt.

The Prosecutor Misstated the Elements of Murder in the Second Degree (but it was Harmless). The HSC next agreed that the prosecutor’s recitation of the elements of murder in the second degree were incorrect statements of the law. The prosecutor said that murder in the second degree required proof that (1) “has the evidence demonstrated that on the date prescribed, that the defendant intentionally or knowingly engaged in certain conduct? 2) As a result of that conduct, did he cause Ms. Skinner’s death? And 3) Once you’ve concluded that, has the evidence demonstrated that Ms. Skinner was 60 years or older? That’s all that the prosecution has placed upon it as its burden.”

The prosecution is wrong. The prosecution had to show the intentionally or knowingly causing the death of another person. In other words, an intent to kill. HRS § 707-701.5. And the prosecution must also prove that Austin knew or should have known that Ms. Skinner was over 60. HRS § 706-660.2. Arguments of counsel that misstate the law are subject to objection and correction by the court. State v. Mahoe, 89 Hawaii 284, 290, 972 P.2d 287, 293 (1993). But, according to the HSC, the error was harmless. The jury was correctly instructed by the circuit court and counsel for the defendant also correctly provided the elements of the offense. This did not arise to plain error.

Prosecutors Cannot Argue that the Defendant or other Witnesses “Lied.” (But it’s Harmless). Justice Pollack concurred and wrote separately on this one particular issue.

Courts across the country have recognized that the charge of a “liar” is an emotionally-charged term that may bring unfair prejudice into the proceeding when used by the prosecution. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010) (en banc); State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003); State v. Davis, 275 Kan. 107, 121 (2003); Williams v. State, 803 A.2d 927, 930 (Del. 2002); State v. Locklear, 294 N.C. 210, 217 (1978); Lewis v. State, 569 P.2d 486, 488 (Okla. Crim. App. 1977). The word “lie” goes beyond factual inaccuracy. It carries the intent to deceive. It is “such a strong expression that it necessarily reflects the personal opinion of the speaker.” State v. Basham, 132 Hawaii 97, 113, 319 P.3d 1105, 1121 (2014).

When the prosecutor argues that Austin lied to you it really conveyed the subjective belief that the prosecutor thought that Austin lied, which introduces the personal, judgmental evaluation. Counsel is prohibited from expressing personal opinions. State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986); Hawaii Rules of Professional Conduct Rule 3.4(g). The HSC held that “a prosecutor’s assertion that a defendant or witness lied to the jury is improper and should not be permitted.” But it was harmless given the strength of the evidence at trial.

Urging the Jury to “Vote Quickly” was Error (but Harmless) The HSC was unanimous in holding that the prosecutor’s invitation to “vote quickly because justice in this case has waited too long” was an improper comment. But that too was harmless beyond a reasonable doubt.

The Comment that there was no Evidence about Skinner Swimming Weekly was O.K. The HSC also held that the rebuttal argument was adequately linked to the evidence. The prosecutor argued in rebuttal that there was no evidence that Skinner swam at the Elks Club on a weekly basis. That is true. There was only evidence that Skinner “would go down quite a bit to the Elk’s Club to swim.” It did not arise to plain error for the HSC.