Cumulative Effect of Eight Improper Statements by Prosecutor Result in New Trial

State v. Conroy (HSC July 1, 2020)

Background. Sean Conroy was on trial for assault in the first degree. The prosecution presented evidence at trial that back in 2011 Conroy and his wife got into an argument at their apartment parking lot in Kihei, Maui. The argument resulted in them struggling over the car keys to her Camaro. The complainant testified that Conroy punched her in the face with both fists and she lost consciousness. She could not remember the number of times she was actually hit. She denied hitting Conroy first and denied kicking Conroy. A picture of the complainant taken six months before the fight and a photograph after the fight were admitted into evidence. The complainant testified that in the pre-fight picture she could smile without a problem but afterwards she could “only smile with half” of her face. She also testified about having nightmares about the incident and it affected her memory. Conroy presented evidence in his defense. He even testified that his wife hit him on the side of his head with a television remote control and knocked out his tooth. He said on the day of the incident he saw that she took his personal items and put them in the Camaro. They started arguing and demanded the keys to the apartment and the Camaro, since it was his. He testified his wife kicked him in the groin causing him to bend over and that she hit him on the left side of his head. He testified that he punched her in the face twice causing her to fall onto the Camaro. When he tried to help her back on her feet she was dazed and fell.

On rebuttal the prosecution recalled the complainant who was allowed to testify that Conroy believed she was unfaithful and had been violent to him in the past.

During his closing argument, the prosecutor urged the jury that this was not a case of self-defense.

Their marriage was going down. [The complainant] no longer gave the Defendant nature’s smile, so he was going to make sure that she didn’t give that smile to any other man, and she won’t. She can’t.

          He was going to teach her a lesson, a lesson that she would never, could never forget, a lesson she would remember every time she looked in a mirror. Look at [her] eyes. What do you see in those eyes? Resignation, defeat, a woman that’s learned her lesson. We should teach her a new lesson. I say we teach her that there is justice in the world. I say we teach her that there can be justice in this—

[Defense Counsel]: Your Honor, I would just object. Passion, prejudice.

THE COURT:      Sustained, counsel.

. . . .

[The prosecutor]: Whatever we do here, we’re not going to put nature’s smile back on [the complaint’s] face, but you can put the smile back in her eyes. What is justice in this case? It’s finding the Defendant guilty of crime the he committed. . . .

. . . .

Consider that, you know, when Defendant broke [the complainant’s] face, when you look at the way she testified, consider her demeanor, the pictures of her after the scene. He broke something inside of her as well.

[Defense Counsel]: Your Honor, objection. Passion, prejudice.

THE COURT: I’ll allow this.

Conroy argued at closing that the complainant kicked him in the groin and he bent over in pain. He argued self-defense. The prosecutor rebutted by asking the jury to reject the self-defense claim. “You break my heart, I break your face. That’s what this case is about.” Conroy objected again and the circuit court with the Hon. Judge Richard T. Bissen, Jr. presiding, sustained and granted the motion to strike. The prosecutor’s final comment expressed disbelief at Conroy’s claim he was kicked in the groin:

If it was a kick to his right testicle and he was bent over in excruciating pain, he would not have been able to hit anybody.

          I think that’s part of, certainly for the guys here—

Counsel objected again and it was sustained and stricken. Conroy was convicted of assault in the second degree, a lesser included offense. He was sentenced to probation for five years and sixty days jail. The court stayed the jail sentence pending appeal. The ICA affirmed.

Examining Claims of Prosecutorial Misconduct. “The term ‘prosecutorial misconduct’ is a legal term of art that refers to any improper action committed by a prosecutor, however harmless or unintentional.” State v. Udo, 145 Hawai'i 519, 534, 454 P.3d 460 (2019). “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 Hawai'i 148, 158, 871 P.2d 782, 792 (1994). “In order to determine whether the alleged prosecutorial misconduct reached the level of reversible error, [the reviewing court examines] the nature of the alleged misconduct, the promptness or lack of a curative instruction, and the strength or weakness of the evidence against the defendant.” State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).

The HSC examined eight different comments made by the prosecutor in his closing and rebuttal arguments and found prosecutorial misconduct. The HSC examined each statement in turn for evaluating the nature-of-misconduct prong.

The First Statement: Conroy “was Going to Make Sure that [the Complainant] didn’t give that smile to any other man, and she won’t. She can.” This statement, according to the HSC, improperly encouraged jurors to sympathize with the complainant and consider the effects of her future relationships and quality of life.

The Second statement: “I say we teach her that there is justice in the world.” The HSC took issue with the prosecutor’s use of the words “I” and “we.” It was clearly improper because it invited jurors to show that justice exists based on something other than the evidence. See State v. Apilando, 79 Hawai'i 128, 149, 900 P.2d 135, 142 (1995) and State v. Mars, 116 Hawai'i 125, 143, 170 P.3d 861, 879 (App. 2007). Moreover, using words like “I” and “we” place the imprimatur of the prosecutor’s office in joining him to teach the complainant about justice and learning lessons. The inclusive pronoun “we” implies that the jury and the prosecution have similar interest and were working together to convict. The implication of unity was improper. State v. Basham, 132 Hawai'i 97, 116, 319 P.3d 1105, 1124 (2014).

The Third Statement: “Whatever we do here, we’re not going to put nature’s smile back on [the complainant’s] face, but you can put the smile back in her eyes. What is justice in this case? It’s finding the Defendant guilty of the crime that he committed.” The HSC noted that this statement again diverts the jury away from its duty to decide the case based on the evidence and suggests that the just verdict is to allow the complainant to smile again. See State v. Klinge, 92 Hawai'i 577, 592, 99 4 p.2d 509, 524 (2000).

Fourth Statement: “When Defendant broke [the complainant’s] face . . . [he] broke something inside as well.” The prosecutor’s statement appealed to the jury’s passions and not its duty to make a decision based on the evidence.

Fifth and Sixth Statements: “We all want [the complainant’s] spirit to heal even if her face won’t. But in order for that to happen, there has to be justice done.” Asking the jury to spiritually heal the complainant encourages them yet again to reach a decision based on sympathy and passion, not the evidence.

The Seventh Statement: “You break my heart, I break your face. That’s what this case is about.” The HSC agreed with the ICA that this statement is not based in evidence and was improper.

The Eighth Statement: “If it was a kick to Defendant’s right testicle and he was bent over in excruciating pain, he would not have been able to hit anybody. I think that’s part of, certainly for the guys here—” The HSC found this statement improper because he was inserting his personal knowledge about what it is like to be kicked in the testicles.

The Nature of the Misconduct Prong is Great. The HSC summarized that the nature of the prosecutor’s misconduct here weas that he repeatedly urged the jurors to sympathize with the complainant and her need to heal. The invitation was improper because he urged jurors to deliver justice not on the facts, but out of some kind of revenge. The prosecutor continued to improperly explain that it should afford justice this way even after the circuit court sustained objections and struck statements.

The Sustained Objections Weren’t Enough. Although the circuit court sustained some, but not all, of the objections and even though there was one instruction about disregarding stricken arguments at the end of the trial, the “cumulative effect of prejudicial conduct going to the issue of guilt is so strong that it overcomes the presumption that the curative remarks of the court have rendered the prejudicial remarks harmless.” State v. Pemberton, 71 Haw. 466, 476, 796 P.2d 80, 85 (1990).

There was a Reasonable Possibility that the Error Complained of Contributed to the Conviction. For the third factor, the HSC evaluated the evidence and found that there was enough evidence to show self-defense that it warranted a new trial. It was not harmless error. See State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002).

Chief Justice Recktenwald’s Dissent. The CJ disagreed with the prosecutorial misconduct analysis. He agreed that the statements were indeed improper and should not have been said to the jury. He also agreed that the circuit court’s inconsistency in affording curative instructions for the improper statements weighed in favor of a new trial. Ultimately, however, the impropriety was slight and the evidence of guilt was overwhelming to the point that it was harmless beyond a reasonable doubt. Justice Nakayama joined.