Rebuttal is not a Second Chance at the Case in Chief


State v. David (HSC December 22, 2017)
Background. Peter David was charged with murder in the second degree of Santhony Albert and assault in the second degree against Torokas Kikku. At trial it was undisputed that David stabbed and killed Albert. David raised self-defense. At trial, the prosecution called eight witnesses, including Kikku.

Kikku testified that David was the initial aggressor to the stabbing. She testified that everyone was at a party in Kalihi and the men were drinking beer and vodka. An argument broke out and some people stayed in Kalihi, while Kikku, David, Albert, and another person, Sam, went to an apartment in Waipahu. They drank more at the apartment. The police showed up, but they later left. David and Albert went downstairs to the parking lot for a while and returned. When they returned Kikku noticed a fresh scratch on David’s nose. He looked angry and said, “how come you do this to me, no man can do this to me.” David went back outside and demanded Albert to go with him. Albert went and Kikku followed after ten seconds. Once outside she saw David chase and hit Albert in the back of his head. Kikku followed them around a corner and saw Albert bending over with his torso parallel to the ground. Kikku helped him get back to the apartment. Albert had trouble walking. David returned with rocks and Kikku confronted him and pushed him. The rocks scratched her arms and chin. Albert went down to the ground lying face up. David ran over to him, straddled him, and was about to hit him with the rocks when Kikku screamed. David looked up, threw the rocks, and ran off. Kikku and another person carried Albert up to the apartment. Paramedics arrived and determined Albert was stabbed. He died from his injuries.

David testified in his own defense. He challenged Kikku’s version of what happened. David testified that Albert was the initial aggressor who was beating him up. He testified that he was invited to the apartment at first, but things got hostile with Albert. He also testified that when the police first arrived, he did not speak with any of them.

At a break in David’s testimony, the prosecution told the Court that it would call a police officer to contradict David’s testimony that he did not speak to them. The circuit court permitted the witnesses over David’s objection.

During rebuttal, the prosecutor called Officer Randall Woo. Officer Woo testified that he arrived to the apartment and saw a female and two males. He testified that he spoke to David. But Officer Woo continued to testify about David’s uncooperative behavior, such as his refusal to leave the scene and that he ordered him to leave the scene at least four times. David objected.

At the sentencing hearing, the prosecutor argued that the court sentence Mr. David and send a message to the Micronesian community:

[A] sentence like this could save lives, I’m talking about sending a message to the Micronesian community.
          Even more so than just a community, but I say this, by no means to be a racist about anything, but in my experience, . . . over the past few years, we have had a number of cases that have come in involving Chuukese, Micronesian males drinking, not high on drugs, like type of cases we’re more used to seeing, high on drugs, try to get drugs, commit offenses because of the need to get drugs or being high on drugs.
          But we’re talking Micronesians who get inebriated on alcohol, then become violent with their own family members, their own friends and they involve knives.

The sentencing court agreed and sentenced David to twenty years prison. David appealed. The ICA found no errors at trial, but found prosecutorial misconduct for appealing to race and nationality in imposing a harsher sentence. The ICA did not order a new trial but remanded for resentencing before a new judge. David petitioned for a writ of certiorari. Read analysis HERE.

Rebuttal Testimony Cannot be the Case-in-Chief in Disguise. “[A] party is bound to give all available evidence in support of an issue in the first instance it is raised at trial and will not be permitted to hold back evidence confirmatory of his or her case and then offer it on rebuttal.” State v. Duncan, 101 Hawaii 269, 276, 67 P.3d 768, 775 (2003).

Here, the prosecution proffered that Officer Woo would contradict David’s claim that he spoke to no officers. But once he was up on the witness stand, the prosecution was permitted to let Officer Woo testify that David was uncooperative and was repeatedly told to leave the scene. Such evidence, according to the HSC, went beyond the proffer and exceeded the scope of rebuttal. Such evidence should have been presented during the prosecution’s case in chief.

The Admission of Improper Rebuttal Evidence is not Harmless. The HSC held that this error was not harmless beyond a reasonable doubt. When improper testimony about a defendant’s credibility is erroneously admitted on rebuttal, it is not harmless when the defendant’s credibility is “the linchpin of his defense.” Id. at 278, 67 P.3d at 777. David’s demeanor leading up to the fight with Albert is “linchpin of his defense.” It went directly to his self-defense claim. The HSC vacated the judgment and remanded for a new trial.

Prosecutorial Misconduct at Sentencing: Don’t be Racist. The HSC did not take up the second issue—whether the prosecutor’s comments warranted a new trial instead of resentencing—but expressly agreed with the ICA that the comments at sentencing were out of line. “[A]rguments by the prosecution contrived to stimulate racial prejudice . . . threaten[] our multicultural society and constitutional values. . . . [A]ppeals to racial prejudice lack the professionalism and decorum required of attorneys who practice before the bar of the courts of Hawaii and will not be tolerated.” State v. Rogan, 91 Hawaii 405, 414-415, 984 P.2d 1231, 1240-1241 (1999).

An Intriguing Question of Remedy. The dodged issue is an interesting one. Just what is the remedy for prosecutorial misconduct committed at the sentencing hearing? A new trial or resentencing before a different judge? The HSC’s recitation of the standard of review may be a clue: “Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant’s right to a fair trial.” State v. McGriff, 76 Hawaii 148, 158, 871 P.2d 782, 792 (1994). Arguably even the ugly comments about race and nationality did not prejudice David’s right to a fair trial. But that issue will be resolved for another day.

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