Gotti, Manson, and what not to do when Prosecuting
State v. Pasene (HSC April 22, 2019)
Background. During the early morning hours of March 28, 2009, Iosefa Pasene, Cedro Muna, and Antonius Paul Toloai were released from custody. Pasene and Muna were dressed alike and had similar physical characteristics. At around 4:00 a.m., Joseph Peneuete and several others gathered outside of the Pauahi Recreational Center in Chinatown. A blue Buick sedan drove up to the group and stopped in front of them. Two men with guns moved to Peneuete and shot him several times. He died. Two hours later a blue Buick sedan was reported on fire just outside of Wahiawa. Pasene was indicted for murder in the 2d degree and carrying or using a firearm in the commission of a separate felony. He went to trial twice, but they resulted in hung juries and mistrials.
The prosecution’s theory was that Pasene was the killer and not Muna because Muna was in a taxi cab heading to the Plaza Hotel at the time of the shooting. Detectives also ruled out Muna after watching some surveillance footage in Chinatown that was not admitted at trial. The prosecution also presented evidence captured from Pasene’s cellular telephone showing that he was in the area at the time of the shooting.
During the opening statement, the prosecutor told the jury about the ruling out of Muna:
[Y]ou will hear the testimony of Detective Greg McCormick and Detective Theodore Coons, both of whom investigated Cedro Muna and eliminated him as a suspect because the Chinatown cameras were able to capture Mr. Muna getting into a taxi, as testified by the taxi driver and as stated to them by Mr. Muna, and the taxi driver and the timing allowed the police to eliminate Mr. Muna as a suspect, because as the car . . . was driving away . . . shots were heard[.]
Pasene objected on the grounds that the surveillance footage was not recovered and was never going to be admitted into evidence. The circuit court sustained the objection without a curative instruction. A total of six objections were sustained during the prosecutor’s opening statement. Pasene moved for a mistrial. The motion was denied.
At trial, the prosecution called two eyewitnesses, Gabriel Sakaria and Richard Tagataese, both of whom were friends with Peneueta for nearly 20 years. They testified that Peneueta and Pasene were arguing outside a liquor store and Pasene said “[w]here we from we don’t fight, we shoot, shoot to kill.” They broke it up and walked to the recreational center where a blue Buick pulled up and two men shot Peneueta. The prosecution also called a taxi cab driver who was nearby the scene. He testified that he picked up two male passengers when a blue car sped by within three feet of the cab. After the blue car passed by, the cab driver heard 8-10 loud gunshots. He went to the Best Western Plaza Hotel near the airport and dropped off one of the passengers. Then he went back to Chinatown and dropped off the other one. He testified that the driver of the blue car and long hair and told the police a few days after the shooting that the driver had facial hair. He did not identify Pasene.
The prosecution also called Det. McCormack who investigated the case. He testified that he interviewed Muna was not arrested. He also testified that he reviewed surveillance footage, but that footage was not recovered. He testified that after watching the footage, he eliminated Muna as a suspect. He next testified that at around 6:00 a.m.—around two hours after the shooting—a blue Buick registered to Sylvia Hall was found on fire.
Det. Coons testified that he met with Hall. He described her as “a very simple person” accompanied by a social worker. She understood and was coherent, but to him she was a “simple” person.
The prosecution also presented evidence that Pasene’s cellular phone was in the Chinatown area at the time of the shooting and later in Wahiawa at around 5:00 a.m,, where a blue Buick was found burning. An undercover officer was also permitted to testify that in the days leading up to the shooting, he conducted a series of “transactions” with Pasene. He did not say that they were drug transactions, but told the jury that the amounts in the transactions ran from $6,000 to $4,900.
The defense called its own witnesses, including Linda Del Rio. Del Rio testified that she posted bail bonds for Pasene, Muna, and Toloai during the early morning hours of March 28. She testified that Muna had the blue Buick and tried to put it up as collateral. She testified that Muna used the Buick on previous occasions as collateral. She testified that Muna called her at around 10:30 a.m. or 11 a.m. that day. Muna said he was in Wahiawa and “had done something and he needed to . . . turn himself in.” She said Muna confessed that he “shot someone.”
Muna also testified. He denied shooting Peneueta. He testified that he got into a cab with Toloai when a blue car sped by driven by Pasene. He heard gunshots after that. The cab dropped him off at the Best Western Hotel. He denied using the blue Buick as collateral. He said that he sold it in January—two months before the shooting. He also said that he had a bad relationship with Del Rio because he jumped bail. He admitted to leaving Hawaii and having to be extradited back to the islands.
Pasene testified in his own defense. He denied shooting anyone and said that he used the phone from time to time, but it belonged to someone else.
During the prosecutor’s closing argument, Pasene objected several times. First, the prosecutor argued that Hall “did not have a license [and] had a social worker . . . Now, who benefits if a mentally handicapped person is the registered owner?” Pasene objected on the grounds that the comment was prejudicial and misstated the evidence. The objection was sustained and the jury instructed to disregard it. Pasene moved for a mistrial. It was denied.
The prosecutor moved on to argue about the unrecovered surveillance footage. “What they did was they told you they went to the Chinatown station and they looked at the camera, and they saw a person that looked like Cedro Muna.” Pasene objected and moved for mistrial. The circuit court sustained the objection and cautioned the prosecutor “I’ve told you ad nauseam that you have to confine your arguments and questioning during this case to what’s appropriate. And for whatever reason, you’re either incapable of doing that or you refuse.” The mistrial motion was denied.
The prosecutor mischaracterized the “ID” by the taxi driver and commented on the credibility of the eyewitnesses. The prosecutor urged the jury to “ask yourself this. Imagine, all of you, imagine one of your friends that you’ve known for 20 years . . . .” Pasene immediately objected and it was sustained. The prosecutor rephrased with the following:
Imagine a person has a friend for over 20 years and they’re standing next to him and unexpectedly a car stops, two guys jump out, and they shoot him in his back and kill him and that’s your good friend. That’s your close friend . . . . You, as a friend, would want the person who shot your close friend to be held and come to justice, so you’re going to tell the truth if you’re a friend and he was a friend for over 20 years.
In response to the closing, Pasene urged the jurors to consider the presumption of innocence and the proof-beyond-a-reasonable doubt standard. He argued that there was a reasonable doubt and that the killer might be Muna instead of Pasene. In rebuttal the prosecutor told the jury that counsel for the defense “had this nice drawing of presumption of innocence, blah, blah, blah, right, it’s our burden, and we’re over here and he draws a stick man.” Pasene objected, but it was overruled. The prosecutor went on to say that “John Gotti, when he goes to trial, he’s presumed innocent. . . . . Charles [Manson] . . . .” Pasene objected again. This time the circuit court sustained the objection and instructed the jury to disregard the last comment of the prosecutor. At the bench the judge admonished the prosecutor.
After argument Pasene renewed his motion for mistrial. It was denied. The jury found him guilty as charged. Pasene filed a motion for new trial on the grounds that the prosecutor’s misconduct denied him the right to a fair trial. The motion was denied. Pasene was sentenced to life with the possibility of parole.
Editor’s Note. Pasene raised multiple issues were raised on appeal. All but one were rejected by the HSC. The dispositive issue was whether the prosecutor’s multiple instances of misconduct warranted yet another trial.
The Cumulative Effect of Prosecutorial Misconduct. “Prosecutorial misconduct may provide grounds for a new trial if the prosecutor’s actions denied the defendant a fair trial.” State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992). In this case there were multiple instances where the defense objected to a comment based on prosecutorial misconduct and later moved for mistrial several times, all of which were denied.
Examining prosecutorial misconduct is based on consideration of 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. State v. Klinge, 92 Hawaii 577, 584, 994 P.2d 509, 516 (2000). The HSC also noted that prosecutorial misconduct when viewed in isolation and may not warrant a new trial alone, but the cumulative effect could be so prejudicial that it deprives the defendant of a fair trial.
The First Factor: the Nature of the Conduct. In examining the first factor the HSC opted to review only “the most significant instances” of the prosecutor’s improper conduct. The first factor requires consideration of “the nature of the challenged conduct in relation to our criminal justice system generally and the special role of the prosecutor specifically.” State v. Underwood, 142 Hawaii 317, 325, 418 P.3d 658, 666 (2018). According to the HSC, the record is “replete with examples of the [prosecutor’s] persistent failure—whether willful or inadvertent—to abide by the circuit court’s instructions, our case law and rules regarding the ethical responsibilities of the prosecutor, and the American Bar Association’s Criminal Justice Standards for the Prosecution.”
The HSC noted that even though the circuit court diligently issued curative instructions when it could, there were times when the circuit court failed to sustain proper objections. Moreover, “the fact that defense counsel was repeatedly forced to object and the court repeatedly forced to sustain those objections and to issue cautionary instructions is likely to have had the . . . effect of focusing the jury’s attention on that evidence and the fact that it was being suppressed.” State v. Pemberton, 71 Haw. 466, 476, 796 P.2d 80, 85 (1990).
The HSC concluded that the nature of the conduct was so pervasive and consistent that the circuit court could not stop every improper comment and issue curative instructions.
At Opening. The HSC began with the opening statement. There were six sustain objections at opening. The HSC held that most were not prejudicial because they were “relatively innocuous.” However, the comment about the Chinatown cameras showing Mr. Muna get into a cab was improper. The circuit court did not sustain the objection and did not issue a curative instruction. This is especially concerning since it goes to the heart of Pasene’s defense.
At Closing. The HSC also found prejudicial misconduct during the closing statements. Prosecutors have a wide latitude at closing and can “state, discuss, and comment on the evidence as well as draw all reasonable inferences from the evidence.” State v. Rogan, 91 Hawaii 405, 412, 984 P.2d 1231, 1238 (1999). The prosecutor exceeds the limit of closing when “a statement cannot be justified as a fair comment on the evidence but instead is more akin to the presentation of wholly new evidence to the jury, which should only be admitted subject to cross-examination, to proper instructions and to the rules of evidence.” State v. Underwood, 142 Hawaii at 326, 418 P.3d at 667.
In this closing, the HSC held that the statement about Sylvia Hall being “mentally handicapped” and an unlikely driver of the Buick was improper. It strongly suggested that someone took advantage of Hall—an issue that has nothing to do with the murder.
The HSC also held that the comment about the Chinatown footage was improper. “[C]omment on matters outside the evidence is improper.” State v. Walsh, 125 Hawaii 271, 290-291, 260 P.3d 350, 369-370 (2011). Even though the circuit court issued a curative instruction, it was so highly prejudicial that it raised concerns about the cumulative effect of the prosecutor’s conduct.
Then there was the problem with the taxi cab driver. The prosecutor commented that the cab driver positively identified Pasene. This is an improper statement of the evidence. The circuit court overruled Pasene's objection and issued no curative instruction.
The HSC, however, did not find it improper for the prosecutor to urge jurors to imagine a man whose friend of 20 years had been gunned down in front of them in order to make that person more credible. This, according to the HSC, was not a “blatantly improper” plea for sympathy.
The Rebuttal. The HSC, however, did find serious issues with the rebuttal argument. Misconduct arises when there is “an impermissible attack on defense counsel’s integrity” and “operate[s] to denigrate the legal profession in general.” State v. Klinge, 92 Hawaii at 595, 994 P.2d at 527. The HSC noted that reducing the argument of proof beyond a reasonable doubt and the presumption of innocence as “blah, blah, blah” makes a mockery of the constitutional principles. Not only did this denigrate counsel and the legal profession in general, it denigrated the constitutional protections of the defense. This was improper and without a curative instruction did not overcome the prejudicial nature of the conduct.
The other problematic comment—about John Gotti and Charles Manson—was also improper. Prosecutors “should not use arguments calculated to inflame the passions or prejudices of the jury.” Rogan, 91 Hawaii at 413, 984 P.2d at 1239. Relying on juror prejudice “cannot be tolerated.” Id. Referencing notorious murderers in a murder trial may lead the jury to react based on their emotions not in an objective way. Thus, it was prejudicial.