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.
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