Ineffective Assistance of Counsel and Prosecutorial Misconduct in a Single Trial

State v. Salavea (HSC June 19, 2020)

Background. Cari Salavea was charged with burglary in the first degree. Before trial, Salavea filed a notice of intent to use evidence that she would present evidence that the complainant was using methamphetamine at the time of the alleged burglary. This drug use undermined the complainant’s perception and memory thereby making the complainant’s testimony unreliable. The case was continued because the complainant was unavailable. Salavea’s lawyer, a deputy public defender, withdrew because of a conflict. In the motion to withdraw, counsel averred the ethical obligation to raise the complainant’s substance abuse and that continued representation of Salavea would compromise the attorney-client relationship with the Office of the Public Defender and the complainant. The circuit court, with the Hon. Judge Karen Ahn presiding, granted the motion and appointed substitute counsel.

The prosecution filed a notice of its intent to present evidence of Salavea’s admitted gambling problem, drug use, and circumstances prior to a theft conviction. The prosecution also moved to exclude the complainant’s history of drug use. The prosecution maintained that if Salavea went into the complainant’s drug use, it would “open the door” to the complainant’s explanation that she would be distancing herself to avoid relapsing. The court permitted both sides to present evidence of drug use on that day.

At trial, the complainant testified she was living in an apartment building with her daughter and parents. She had been friends with Salavea for six years, but they started to drift apart. It had been a month since they saw each other before the alleged burglary; and on that night they went out gambling all night.

The complainant testified that one afternoon she was home recovering from a workplace injury to her foot. She received a call from Salavea but did not pick up. Then she fell asleep. When she woke up, her phone, a tablet, and a backpack containing her wallet were gone. She testified that she went downstairs to the building security and reviewed surveillance footage. She saw Salavea enter the building and make her way to her floor. It also showed her leaving with the backpack.

Salavea testified. She told the jury she went to the residence and was invited to stop in. She testified she spoke to the complainant about borrowing the slippers and backpack. Salavea testified that she wanted to use the bag and “she can come to my house and get it when she’s not out of it.” Counsel asked if the complainant seemed alert when she said “she’s not out of it.” The prosecutor objected on the basis of hearsay and the circuit court sustained the objection and struck the portion about the complainant being “out of it.”

During the closing argument, the prosecutor argued that Salavea was lying:

[The complainant] told you the truth. [The complainant’s] testimony was credible.

. . .

Defendant’s story that she had permission to go in and she had somehow thought it was okay and that [the complainant] cooperated with her . . . is not credible. It’s not credible, it’s a lie, because it doesn’t make sense.

. . . Defendant’s story doesn’t add up. . . . That’s a lie, and from there, it follows that she was concealing the fob, she was deliberately holding on to that fob secretly so she could go in her own time at her own convenience and take from [the complainant].

The prosecutor told the jury that the complainant “told you the truth” and that “everything the Defendant tells you is not true.” Again during the rebuttal argument, the prosecutor harped on how Salavea was lying and how the complainant was frank and truthful. The prosecutor even argued that Salavea “has a lot of interest what’s at stake.” Salavea was found guilty and sentenced to ten years imprisonment. Salavea appealed. The ICA affirmed.

Appointed Counsel was Ineffective. The right to counsel in criminal cases pursuant to Article I, Section 14 of the Hawai'i Constitution and the Sixth Amendment to the United States Constitution includes the right to the effective assistance of counsel. Counsel’s services must be “within the range of competence demanded of attorneys in criminal cases.” State v. Cordeiro,  99 Hawai'i 390, 405, 56 P.3d 692, 707 (2002).

Determining ineffective assistance of counsel is a two-part test. First, the defendant must show specific errors or omissions reflecting counsel’s lack of skill, judgment, or diligence. State v. Antone, 62 Haw. 346, 348, 615 P.2d 101, 104 (1980). Second, the defendant must then show the error or omission resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. Id. at 348-349, 615 P.2d at 104. The second program is met when the defendant shows possible impairment. State v. DeLeon, 131 Hawai'i 463, 479, 319 P.3d 382, 398 (2014). Actual prejudice is not required. Briones v. State, 74 Haw. 442, 465, 848 P.2d 966, 977 (1993). When an action or omission had an obvious tactical basis that benefitted the case no further scrutiny is warranted. State v. Pacheco, 96 Hawai'i 83, 93, 26 P.3d 572, 582 (2001).

Here, the HSC held that counsel was ineffective. There had been notices of the intention to get into the complainant’s drug use on the day of the incident. At trial counsel asked Salavea when she took the stand what she meant when she said “she can come to my house and get it when she’s not out of it.” The prosecutor’s objection was sustained and the testimony stricken. No other attempt was made to elicit evidence of the drug use.

According to the HSC, counsel was confounded by the hearsay objection and did not rephrase the question that would avoid the hearsay. Instead, counsel dropped the line of inquiry. There was nothing about seeing drug paraphernalia in the apartment. There was nothing about her observations of the complainant. There was nothing about the complainant’s ability to converse or think coherently. The HSC held that the first prong was met. Asking questions like this was within the range of competence expected of an attorney.

The HSC also held that the second prong was met. The reliability of the complainant and her version of events was the critical part of the case and the trial. The HSC held that counsel’s failure to elicit testimony that the complainant was using or was under the influence of crystal methamphetamine at the time of the offense resulted in the possible impairment or withdrawal of a potentially meritorious defense.

But What is Hearsay? In a footnote, the HSC observed that this was not a hearsay statement at all. According to the HSC, the statement was not going to be used for the truth of the matter asserted. It went to whether Salavea believed she had permission to take the bag.

Prosecutorial Misconduct on top of it. When reviewing alleged prosecutorial misconduct, the court will look at 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. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999).

The HSC agreed with Salavea that the prosecutor at closing improperly expressed her personal views as to “the defendant’s guilt or the credibility of witnesses.” State v. Basham, 132 Hawai'i 97, 115, 319 P.3d 1105, 1123 (2014). When a prosecutor makes a claim about a witness’s credibility without reference to the evidence or facts supporting the claim it amounts to personal opinion. Id. at 118, 319 P.3d at 1126. Here, the HSC noted that the prosecutor on at least two occasions claimed the complainant was credible without any reference to the evidence supporting that assertion. Moreover, the prosecutor attacked Salavea without any specific reference to the evidence either. This is misconduct.

Justice Nakayama’s Dissent. Justice Nakayama did not agree that counsel was ineffective and did not believe that the prosecutor committed misconduct. Justice Nakayama believed that counsel made the tactical decision not to elicit evidence about the drug use because she feared that it would open the door to more evidence. Moreover, when read in context, the prosecutor’s argument did not arise to misconduct. The Chief Justice joined.