Prosecutor Can't Supply Legal Definitions for the Court at Closing

State v. Basham (HSC February 6, 2014)
Background. Michael Basham and his son, Aliikea, were charged with assault in the first degree. The prosecution alleged that the Bashams intentionally or knowingly caused “serious bodily injury” to Steven Bloom. See HRS § 707-710. Both went to trial at the same time.

The prosecution adduced these facts from witness testimony. Steven Bloom and his wife, Jennifer Chavez, were driving around Ewa Beach looking for a beach. They got into a minor motor vehicle accident with a blue car, which collided into the back of their car. Both pulled off to the side of the road. The driver was uninjured and Bloom suggested that they exchange insurance information. The driver said he had to call his father. Bloom went back to his car to get his proof of insurance and when he walked back to the blue car he saw Aliikea running up from a nearby beach. Aliikea, according to Bloom, was loud, aggressive, and was trying to intimidate him. Aliikea pushed Bloom. Michael came up from the beach too. Michael was upset too, but Bloom recalled Michael yelling at Aliikea and the driver not hit him. But when Michael showed up, the driver got agitated. Aliikea pushed Bloom again, and put his hands up to or grabbed Bloom’s throat. Bloom knocked Aliikea’s hand away, told Chavez to get behind him, and then he lost consciousness. He could not remember what happened next. He woke up later in his car.

Chavez testified that Aliikea pushed Bloom to the ground and Bloom hit his head. He went down, Basham held him down while Aliikea kicked Bloom and the driver jumped on top of Bloom. On cross-examination, Chavez clarified that Basham held him momentarily and when Aliikea was kicking Bloom and the driver was jumping on him, no one was holding him down. Bloom started having a seizure and Chavez was screaming at the men. When they stopped, she helped him back into his car.  Chavez called 911 and was still on the phone with dispatch when Michael came and started hitting their car. The paramedics and the police showed up soon after that. The police officers testified that when they got there, the driver was gone and Aliikea and Michael were still there. The police were unable to determine what happened.

Michael did not testify, but Aliikea did. He told the jury that he was with his family at the beach when he saw a motor vehicle accident involving his father’s car. Michael told Aliikea to go check it out. Aliikea admitted he was frustrated with his brother, who had been driving the car. He was scolding his brother when Bloom kept coming up to them with his insurance information. Aliikea said he told Bloom to step away until Michael could get there. When Michael showed up, he started talking to Bloom while Aliikea talked to his brother, who was getting a little “crazy.” According to Aliikea, things were fairly calm when out of nowhere, the driver attacked Bloom and started punching him. He said that neither he nor his father held Bloom to the ground. He confirmed that after the attack, the couple went back into their car and it looked like they were going to drive off. Aliikea’s brother was gone already. They knew the police were coming, so Michael told his son to let them know not to drive off. He stood in front of the car to stop them from leaving. Then the cops came.

During the settling of jury instructions, the parties agreed that the court (Judge Randal Lee) should instruct the jury about accomplice liability. The actual instruction given to the jury went like this:

A defendant charged with committing an offense may be guilty because he is an accomplice of another in the commission of the offense. The prosecution must prove accomplice liability beyond a reasonable doubt.

A person is an accomplice of another in the commission of an offense if, with the intention of promoting or facilitating the commission of the offense, the person aids or agrees or attempts to aid the other person in planning or commission of the offense.

Mere presence at the scene of an offense or knowledge that an offense is being committed, without more, does not make a person an accomplice to the offense. However, if a person plans or participates in the commission of the offense with the intent to promote or facilitate the offense, he is an accomplice to the commission of the offense.

The jury was not instructed on the definition of the words “intent to promote or facilitate the commission of the offense.”

At closing, the prosecutor argued that Bloom and Chavez were completely credible and “on behalf of the prosecution, I adamantly state to you, that Mr. and Mrs. Bloom have been completely credible witnesses. . . . They have absolutely no reason to fabricate or otherwise make up the accounts that they recited to you in explicit detail.” Aliikea, on the other hand, “has absolutely no reason to tell you the truth.”

The prosecutor moved on to the accomplice instruction. “Let’s define a couple of those words and put it in everyday English that we can understand. A person is an accomplice if with the intent to promote—what does that ‘promote’ mean? It simply means for our purposes to encourage, the desire to bring about.” Basham objected and during a bench conference, Basham argued that the prosecutor’s definition was a “far cry” from the statutory definition.” Aliikea joined in the objection. The trial court overruled them. The prosecutor continued to tell the jurors that “promote” simply meant “to encourage,” “facilitate,” “make easy” or “bring about.”

Both Bashams were found guilty as charged and sentenced to ten years prison. Basham appealed to the ICA, which affirmed, and then he petitioned for a writ of cert.

Giving your own Erroneous Legal Definitions at Closing is Prosecutorial Misconduct. Basham raised two instances of prosecutorial misconduct. The first was that the prosecutor made incorrect and misleading statements about the law of accomplice liability. The prosecutor defined for the jury the word “promote.” The HSC examined the accomplice statute and held that the word “promote,” though undefined, requires a “conscious objective of bringing about the commission of the offense.” Having the intent to make easy or encourage criminal conduct is not the same. Arguments “of counsel which misstate the law are subject to objection and to correction by the court.” State v. Espiritu, 117 Hawaii 127, 140, 176 P.3d 885, 898 (2008). The prosecutor here provided an erroneous definition of accomplice liability and instead of admonishing the prosecutor, the court overruled Basham’s objection. By overruling the objection, “the court endorsed the definition given by the prosecutor.” The HSC also noted that this error is not harmless beyond a reasonable doubt. There was some question as to whether Basham was an accomplice at all. The HSC vacated the judgment and remanded for new trial.

The Argument that Basham Lied to the Police Without Basham Testifying is Improper Argument. In addition to adding legal terms, the prosecutor argued that Basham was lying to the police. The prosecutor pointed out that the responding officer had determined—after much confusion—that Basham had been the driver that hit Bloom. The prosecutor queried, “who could the only source of that information be? Not [Bloom] who had been knocked unconscious. Michael Basham.” The prosecutor concluded that Basham “took the role of his son as the driver and lied to the police.” The HSC disagreed with the ICA and held that this was not a logical inference that a prosecutor could have made to the jury. Even if it had been a logical inference, the allegation of lying to the police carried the improper perception “by the public as particularly wrongful[.]” Moreover, the HSC noted that if the prosecutor had even tried to admit this as evidence, it would be deemed inadmissible under HRE Rule 404(b) and 403.

Prosecutor’s Comments on the Credibility of Witnesses Improper. Finally, the HSC addressed the prosecutor’s comments that “on behalf of the prosecution, I adamantly state to you, that [Bloom] and [Chavez] have been completely credible witnesses, that they are worthy of your belief.” And that Aliikea had “no reason to tell you the truth.”

According to the HSC, these comments are undoubtedly “an expression of a personal view on the credibility of the State’s witnesses and the guilt of the defendants.” More importantly, the HSC noted that the prosecutor had no basis for making this comment other than the fact that Aliikea was the defendant and standing trial as the accused. This is an impermissible. The prosecutor’s “improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986). Without any particular basis for this assertion, it is a generic accusation that defendants cannot or do no tell the truth. It is “improper, under article I, section14 of the Hawaii Constitution, for the prosecution to make generic accusations during closing argument that a defendant tailored his testimony based solely on the defendant’s exercise of his constitutional right to be present during the trial.” State v. Mattson, 122 Hawaii 312, 326, 226 P.3d 482, 496 (2010). So too, the prosecutor cannot ask the jury to infer a defendant’s incredibility based on the mere fact that the person is a defendant. According to the HSC, Basham was being penalized simply because he was the defendant. This is wholly improper.

Justice Nakayama’s Dissent. Justice Nakayama disagreed with the HSC’s interpretation of the accomplice statute and believed that the prosecutor’s definition of the word “promote” was harmless. For her, the prosecutor’s definition was not all that different than what the statute required and, thus, the court properly overruled the objection. As for the other comments, Justice Nakayama did not agree with the majority that they arose to prosecutorial misconduct. Her disagreement centered largely around her position that the court should not be recognizing plain error in these matters especially since Basham did not object to some comments. As for the prosecutor’s personal view, she believed the comment was nothing more than a “rhetorical device” and that the comment about the defendant having no reason to tell the truth was appropriate in light of the conflicting testimony. Chief Justice Recktenwald joined.


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