Prosecutor's Improper Hypothetical at Closing Proves Fatal

State v. Tuua (HSC April 20, 2011)

Background. David Brown, a bouncer at a bar on Maui, was hit with a beer bottle in the middle of a fight at the bar. Lopeti Tuua was charged with assault in the second degree (HRS § 707-711(1)(d)). At his trial, fellow bouncer, Jason Inglish, and bartender, Renie Hamayelian, testified that they were working that night. Brown and Inglish testified that Tuua threw the bottle. Hamayelian testified that he and another customer had collected all of the bottles, except for one--the one in Tuua's hand before it broke. He also testified that he saw the broken bottle near Brown after it had been thrown. He never saw Tuua throw it. The parties also stipulated that Officer Polanco would have testified that when he arrived at the scene, he took Brown's statement. In that statement, Brown said that another man, Ikaika Kawai, threw the bottle that hit him. Tuua and his half-brother, Brandon Carter, testified for the defense. Both testified that it was Carter who threw the bottle.

During his closing argument, the prosecutor argued, over the defense's objection, that Carter was not a credible witness:

[I]f you found the defendant not guilty, a person might think, well, you can go after Brandon Carter because he admitted to it.

Think about it. What would the defense attorney of Brandon Carter do? He'd call every one of the State witnesses. He'd call Dave Brown. He'd call Renie [Hamayelian] and he'd call Jason Inglish. Who threw the bottle? Each of them would say it's [Tuua]. Each one of them.

Brandon Carter could get up on the stand and all he'd have to say is, I lied. And then what would happen? [Tuua] would have been found not guilty. Defendant would have been found not guilty. Could have just said, I lied under oath. So what?

The most that you can get him for would be charging him for lying under oath. That would be it and that's the strategy, and that's why you can't really give any credibility to Brandon Carter coming in here today and saying, hey, it was me.

The jury found Tuua guilty as charged. Tuua appealed; the ICA affirmed.

Prosecutorial Misconduct. Prosecutors at closing may "draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence." State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996). They "are bound to refrain from expressing their personal views as to a defendant's guilt or the credibility of witnesses." State v. Cordeiro, 99 Hawai'i 390, 424-25, 56 P.3d 692, 726-27 (2002).

Here, the HSC held that the prosecutor did not draw from reasonable inferences from the evidence, but rather went beyond the record and discussed the consequences of the jury's verdict. According to the HSC, the prosecutor's hypothetical future trial of Carter was based on an acquittal in Tuua's case. A prosecutor cannot "improperly direct the jury from its duty to decide the case on the evidence . . . by making predictions of the consequences of the jury's verdict." State v. Sanchez, 82 Hawai'i 517, 533, 923 P.2d 934, 950 (App. 1996). According to the HSC, the prosecutor in Tuua's trial did just that.

Three Factors Determine Whether an Improper Statement is Harmless Beyond a Reasonable Doubt. Once misconduct is found, the court must determine whether the error was harmless beyond a reasonable doubt, "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." State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999). The harmlessness of the misconduct is based on 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." Id.

All Factors Point Away from Harmlessness. The HSC held that the first factor weighs against the prosecution. The mere fact that the prosecutor's comment directed jurors away from examining the evidence and thinking about the consequences of their verdict was enough to weigh against the prosecution. As for the second factor, there was no curative instruction given. According to the HSC, the fact that the circuit court twice instructed the jurors prior to the improper comment that the arguments were not evidence did not mean that a curative instruction was given. State v. Rogan, 91 Hawai'i at 415, 984 P.2d at 1241. Finally, the HSC noted that "[i]n close cases involving the credibility of witnesses, particularly where there are no disinterested witnesses or other corroborating evidence, this court has been reluctant to hold improper statements harmless." This case, according to the HSC, turned on the credibility of witnesses and each of them had their own biases and interests. It weighs against harmlessness.