Gotti, Manson, and what not to do when Prosecuting
State
v. Pasene (HSC
April 22, 2019)
Background. During the
early morning hours of March 28, 2009, Iosefa Pasene, Cedro Muna, and
Antonius Paul Toloai were released from custody. Pasene and Muna were dressed
alike and had similar physical characteristics. At around 4:00 a.m., Joseph Peneuete
and several others gathered outside of the Pauahi Recreational Center in
Chinatown. A blue Buick sedan drove up to the group and stopped in front of
them. Two men with guns moved to Peneuete and shot him several times. He died.
Two hours later a blue Buick sedan was reported on fire just outside of Wahiawa.
Pasene was indicted for murder in the 2d degree and carrying or using a firearm
in the commission of a separate felony. He went to trial twice, but they
resulted in hung juries and mistrials.
The prosecution’s theory
was that Pasene was the killer and not Muna because Muna was in a taxi cab
heading to the Plaza Hotel at the time of the shooting. Detectives also ruled
out Muna after watching some surveillance footage in Chinatown that was not
admitted at trial. The prosecution also presented evidence captured
from Pasene’s cellular telephone showing that he was in the area at the time of
the shooting.
During the opening
statement, the prosecutor told the jury about the ruling out of Muna:
[Y]ou
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 a
taxi, as testified 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[.]
Pasene objected on the
grounds that the surveillance footage was not recovered and was never going to be
admitted into evidence. The circuit court sustained the objection without a
curative instruction. A total of six objections were sustained during the
prosecutor’s opening statement. Pasene moved for a mistrial. The motion was
denied.
At trial, the prosecution
called two eyewitnesses, Gabriel Sakaria and Richard Tagataese, both of whom
were friends with Peneueta for nearly 20 years. They testified that Peneueta
and Pasene were arguing outside a liquor store and Pasene said “[w]here we from
we don’t fight, we shoot, shoot to kill.” They broke it up and walked to the
recreational center where a blue Buick pulled up and two men shot Peneueta. The
prosecution also called a taxi cab driver who was nearby the scene. He testified
that he picked up two male passengers when a blue car sped by within three feet
of the cab. After the blue car passed by, the cab driver heard 8-10 loud
gunshots. He went to the Best Western Plaza Hotel near the airport and dropped
off one of the passengers. Then he went back to Chinatown and dropped off the
other one. He testified that the driver of the blue car and long hair and told
the police a few days after the shooting that the driver had facial hair. He did
not identify Pasene.
The prosecution also
called Det. McCormack who investigated the case. He testified that he
interviewed Muna was not arrested. He also testified that he reviewed surveillance
footage, but that footage was not recovered. He testified that after watching
the footage, he eliminated Muna as a suspect. He next testified that at around
6:00 a.m.—around two hours after the shooting—a blue Buick registered to Sylvia
Hall was found on fire.
Det. Coons testified that
he met with Hall. He described her as “a very simple person” accompanied by a
social worker. She understood and was coherent, but to him she was a “simple”
person.
The prosecution also
presented evidence that Pasene’s cellular phone was in the Chinatown area at
the time of the shooting and later in Wahiawa at around 5:00 a.m,, where a blue
Buick was found burning. An undercover officer was also permitted to testify
that in the days leading up to the shooting, he conducted a series of “transactions”
with Pasene. He did not say that they were drug transactions, but told the jury
that the amounts in the transactions ran from $6,000 to $4,900.
The defense called its own
witnesses, including Linda Del Rio. Del Rio testified that she posted bail
bonds for Pasene, Muna, and Toloai during the early morning hours of March 28.
She testified that Muna had the blue Buick and tried to put it up as
collateral. She testified that Muna used the Buick on previous occasions as collateral.
She testified that Muna called her at around 10:30 a.m. or 11 a.m. that day.
Muna said he was in Wahiawa and “had done something and he needed to . . . turn
himself in.” She said Muna confessed that he “shot someone.”
Muna also testified. He denied
shooting Peneueta. He testified that he got into a cab with Toloai when a blue
car sped by driven by Pasene. He heard gunshots after that. The cab dropped him
off at the Best Western Hotel. He denied using the blue Buick as collateral. He
said that he sold it in January—two months before the shooting. He also said
that he had a bad relationship with Del Rio because he jumped bail. He admitted
to leaving Hawaii and having to be extradited back to the islands.
Pasene testified in his
own defense. He denied shooting anyone and said that he used the phone from
time to time, but it belonged to someone else.
During the prosecutor’s closing
argument, Pasene objected several times. First, the prosecutor argued that Hall
“did not have a license [and] had a social worker . . . Now, who benefits if a
mentally handicapped person is the registered owner?” Pasene objected on the
grounds that the comment was prejudicial and misstated the evidence. The
objection was sustained and the jury instructed to disregard it. Pasene moved
for a mistrial. It was denied.
The prosecutor moved on to
argue about the unrecovered surveillance footage. “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.” Pasene objected and moved for mistrial.
The circuit court sustained the objection and cautioned the prosecutor “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.” The mistrial motion was denied.
The prosecutor
mischaracterized the “ID” by the taxi driver and commented on the credibility of
the eyewitnesses. The prosecutor urged the jury to “ask yourself this. Imagine,
all of you, imagine one of your friends that you’ve known for 20 years . . . .”
Pasene immediately objected and it was sustained. The prosecutor rephrased with
the following:
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.
In response to the closing, Pasene urged the jurors to
consider the presumption of innocence and the proof-beyond-a-reasonable doubt standard.
He argued that there was a reasonable doubt and that the killer might be Muna
instead of Pasene. In rebuttal the prosecutor told the jury that counsel for
the defense “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.”
Pasene objected, but it was overruled. The prosecutor went on to say that “John
Gotti, when he goes to trial, he’s presumed innocent. . . . . Charles [Manson]
. . . .” Pasene objected again. This time the circuit court sustained the
objection and instructed the jury to disregard the last comment of the
prosecutor. At the bench the judge admonished the prosecutor.
After argument Pasene renewed his motion for mistrial. It was
denied. The jury found him guilty as charged. Pasene filed a motion for new
trial on the grounds that the prosecutor’s misconduct denied him the right to a
fair trial. The motion was denied. Pasene was sentenced to life with the possibility
of parole.
Editor’s
Note. Pasene raised multiple issues were raised on appeal. All but
one were rejected by the HSC. The dispositive issue was whether the prosecutor’s
multiple instances of misconduct warranted yet another trial.
The
Cumulative Effect of 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). In this case
there were multiple instances where the defense objected to a comment based on
prosecutorial misconduct and later moved for mistrial several times, all of
which were denied.
Examining prosecutorial
misconduct is based on consideration of three factors: (1) the nature of the
conduct; (2) the promptness of a curative instruction; and (3) the strength or
weakness of the evidence against the defendant. State v. Klinge, 92 Hawaii 577, 584, 994 P.2d 509, 516 (2000). The
HSC also noted that prosecutorial misconduct when viewed in isolation and may
not warrant a new trial alone, but the cumulative effect could be so
prejudicial that it deprives the defendant of a fair trial.
The
First Factor: the Nature of the Conduct. In examining the first
factor the HSC opted to review only “the most significant instances” of the
prosecutor’s improper conduct. The first factor requires consideration of “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 Hawaii 317, 325,
418 P.3d 658, 666 (2018). According to the HSC, the record is “replete with
examples of the [prosecutor’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.”
The HSC noted that even
though the circuit court diligently issued curative instructions when it could,
there were times when the circuit court failed to sustain proper objections.
Moreover, “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.” State v. Pemberton, 71 Haw. 466, 476,
796 P.2d 80, 85 (1990).
The HSC concluded that the
nature of the conduct was so pervasive and consistent that the circuit court
could not stop every improper comment and issue curative instructions.
At
Opening. The HSC began with the opening statement. There were six
sustain objections at opening. The HSC held that most were not prejudicial
because they were “relatively innocuous.” However, the comment about the Chinatown
cameras showing Mr. Muna get into a cab was improper. The circuit court did not
sustain the objection and did not issue a curative instruction. This is especially
concerning since it goes to the heart of Pasene’s defense.
At
Closing. The HSC also found prejudicial misconduct during the closing
statements. Prosecutors have a wide latitude at closing and can “state,
discuss, and comment on the evidence as well as draw all reasonable inferences
from the evidence.” State v. Rogan,
91 Hawaii 405, 412, 984 P.2d 1231, 1238 (1999). The prosecutor exceeds the limit
of closing 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.” State
v. Underwood, 142 Hawaii at 326, 418 P.3d at 667.
In this closing, the HSC
held that the statement about Sylvia Hall being “mentally handicapped” and an
unlikely driver of the Buick was improper. It strongly suggested that someone took
advantage of Hall—an issue that has nothing to do with the murder.
The HSC also held that the
comment about the Chinatown footage was improper. “[C]omment on matters outside
the evidence is improper.” State v. Walsh,
125 Hawaii 271, 290-291, 260 P.3d 350, 369-370 (2011). Even though the circuit
court issued a curative instruction, it was so highly prejudicial that it raised
concerns about the cumulative effect of the prosecutor’s conduct.
Then there was the problem
with the taxi cab driver. The prosecutor commented that the cab driver positively
identified Pasene. This is an improper statement of the evidence. The circuit
court overruled Pasene's objection and issued no curative instruction.
The HSC, however, did not
find it improper for the prosecutor to urge jurors to imagine a man whose
friend of 20 years had been gunned down in front of them in order to make that
person more credible. This, according to the HSC, was not a “blatantly improper”
plea for sympathy.
The
Rebuttal. The HSC, however, did find serious issues with the rebuttal
argument. Misconduct arises when there is “an impermissible attack on defense
counsel’s integrity” and “operate[s] to denigrate the legal profession in
general.” State v. Klinge, 92 Hawaii
at 595, 994 P.2d at 527. The HSC noted that reducing the argument of proof
beyond a reasonable doubt and the presumption of innocence as “blah, blah, blah”
makes a mockery of the constitutional principles. Not only did this denigrate counsel
and the legal profession in general, it denigrated the constitutional protections
of the defense. This was improper and without a curative instruction did not
overcome the prejudicial nature of the conduct.
The other problematic
comment—about John Gotti and Charles Manson—was also improper. Prosecutors “should
not use arguments calculated to inflame the passions or prejudices of the jury.”
Rogan, 91 Hawaii at 413, 984 P.2d at
1239. Relying on juror prejudice “cannot be tolerated.” Id. Referencing notorious murderers in a murder trial may lead the
jury to react based on their emotions not in an objective way. Thus, it was
prejudicial.
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