Statements that were Never Raised at Trial Cannot be Presented during Argument

State v. McGhee (HSC June 21, 2017)

Background. Jamal McGhee was charged with terroristic threatening in the second degree. HRS § 707-717(1). McGhee waived his right to a jury trial. At trial, Edithe Kearney testified that she owns the Alley Cat club on Oahu. She testified it’s a small place and the club does not get loud. One day, McGhee came in at around 2:00 a.m. He was upset at an Alley Cat employee at the front door. She testified that McGhee was yelling, screaming, and threatening everyone in the bar. He was saying things like he can “kill me, can beat me up, that sort of thing.” Keaney felt threatened by these remarks and called the police because he would not calm down. The police showed up, but by then McGhee was gone. On cross-examination, Kearney testified that she wasn’t actually afraid of McGhee. “I mean, I’m almost 70. I’m not afraid to be—if he wants to kill me, kill me.” The district court denied McGhee’s motion for judgment of acquittal. McGhee testified that he went to the Alley Cat to meet his girlfriend. He stood outside the club and did not see Kearney at first because it was dark. He said that he avoided Kearney because she always called the police on him.

During rebuttal, the prosecutor argued that “although this wasn’t raised as evidence in this case,” it pointed to a written statement adopted by Kearney that verified she was afraid of McGhee. Defense counsel allowed the prosecutor to read it. The trial court found McGhee guilty and sentenced him to one year of probation. He appealed and the ICA affirmed, but Chief Judge Nakamura dissented.

Just to be Clear: this is the Scope of Closing Argument. The HSC took pains to clearly define the scope of closing arguments for the parties. The prosecutor (and defense counsel) may “draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence,” State v. Nofoa, 135 Hawaii 220, 228, 349 P.3d 327, 335 (2015). The parties are also free “to state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence.” State v. Quitog, 85 Hawaii 128, 145, 938 P.2d 559, 576 (1997). However, arguments “must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor's conduct.” State v. Rogan, 91 Hawaii 405, 413, 984 P.2d 1231, 1239 (1999). In other words, “[c]losing arguments are not the place to introduce new evidence outside the safeguards of the Hawaii Rules of Evidence.” State v. Basham, 132 Hawaii 97, 113, 319 P.3d 1105, 1121 (2014).

Presenting the Written Statement at Rebuttal was Improper. The HSC examined the reading of the written statement under this standard and it was apparent that it was not part of the evidence presented at trial. The statement—that Kearney was afraid of McGhee—could not have been inferred from the evidence at trial either.

The ICA Erred in Concluding the Statement was Irrelevant to Terroristic Threatening. The HSC also took on the ICA’s conclusion that the statement of being actually afraid of McGhee was irrelevant. Terroristic threatening means threatening “by words or conduct to cause bodily injury to another in reckless disregard of another.” HRS § 707-715. It also requires the “intent to terrorize or in reckless disregard of the risk of terrorizing, another person.” Id.

“Actual terrorization is not a material element although it is evidence of the occurrence of the material elements.” State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987). The HSC took issue with the ICA’s conclusion that the written statement was irrelevant. Although it is not a material element, the evidence certainly is relevant to show threats with the intent to terrorize or in reckless disregard of the terrorizing. It could also be used as evidence of a “true threat.” See State v. Valdivia, 95 Hawaii 465, 476, 24 P.3d 661 ,672 (2001). And so, the ICA was wrong to conclude that the statement of fear was irrelevant.

The Improper Statement by the Prosecutor Warranted a new Trial. A prosecutor’s improper statements in a closing argument warrants a new trial when “there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Tuua, 125 Hawaii 10, 16, 250 P.3d 273, 279 (2011). Assessing whether an improper statement is harmless beyond a reasonable doubt hinges on three factors: (1) the nature of the conduct; (2) the promptness or lack of curative instruction; and (3) the strength or weakness of the evidence against defendant. Id. at 15-16, 250 P.3d at 278-279. The HSC applied all three factors.

First, the nature of the conduct weighed in favor of new trial. The prosecutor’s statement referred to evidence that was never presented at trial and during rebuttal argument—when there was no possibility that McGhee could respond. Second, the HSC noted that because this was not a jury trial—the lack of a curative instruction was inapposite. Instead, the HSC inquired if the trial court “disregarded or did not consider” the improper statement. There was no indication on the record if the trial court considered it or not and because it was impossible to determine, it weighs against harmlessness. Finally, the HSC noted that this case hinged on conflicting testimony between Kearney and McGhee. “In 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.” State v. Tuua, 125 Hawaii at 17, 250 P.3d at 280. This was such a case. Accordingly, the HSC vacated the judgment and remanded for new trial.