Emphasizing how the Victims Felt at Closing is Misconduct

 State v. Riveira (HSC August 31, 2021)

Background. Ralph Riveira was charged with burglary in the first degree. At trial, the prosecutor said during opening statement that this was a case “about a Kailua family who was burglarized. And more so than just losing electronics, the evidence will show that they lost their sense of security and ability to feel safe in their home.”

 

The prosecution presented evidence of a burglary. The homeowner in Kailua testified she saw a man running in her backyard. She described the man holding a black object with cords hanging from it. He was heavy-set with short hair wearing a neon green construction shirt, dark boots, and plaid shorts. The man hopped over the fence and went into a red Toyota tundra near the mailbox. The homeowner got the license plate and saw a woman sitting in the truck with her feet on the dashboard. Her nails were painted.  The homeowner discovered that her laptop and gaming devices were missing from the home. A boot print was found on a towel in the house. The police stopped the Toyota not far from her home. Riveira was in the passenger seat and a woman with painted toenails was the driver. They were arrested. The homeowner identified Riveira. A search of the truck revealed the black laptop with cords and gaming devices.

 

At trial, the prosecutor called the homeowner’s husband. He was not an eyewitness. The prosecutor asked how “did it make you feel after you had learned that you had been burglarized?” There was no objection. The witness told the jury he felt “violated.” Similar testimony came from the homeowner. She testified she felt “very violated” and that “it’s affected me deeply.”

 

Riveira’s defense was misidentification. He cross-examined police officers about a lack of forensic evidence.

 

During the prosecutor’s rebuttal argument, the prosecutor argued that Riveira’s counsel was “trying to trick” them with his interpretation of the evidence. There was no objection. The prosecutor also emphasized the homeowner’s feelings of loss:

 

Do you remember what [the homeowner] said about this whole experience? It’s affected me deeply. It’s affected me deeply. You know, the evidence does show they got the electronics back. She still uses the laptop. The kids still play with the Nintendo devices. But more than electronics, the defendant took something else from them that they didn’t get back, that’s the ability to feel safe and secure in their own home.

 

. . . .

Ladies and gentlemen, I ask that you hold the defendant accountable for what he did to that family and find him guilty as charged of Burglary in the First Degree.

 

Riveira objected. The circuit court, with the Hon. Judge Paul Wong presiding, overruled the objection. Riveira asked the court to reconsider its ruling and argued that it went to inflame the jurors. The court would not reconsider and said that jury instructions about avoiding passions and prejudice would ensure fairness. Riveira was found guilty as charged. He appealed. Riveira appealed and the ICA affirmed.

 

Prosecutorial Misconduct Doesn’t Get a New Trial Unless it is Affected the Outcome. Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard. State v. Klinge, 92 Hawai'i 577, 584, 994 P.2d 509, 516 (2000). It hinges on three prongs: (1) the nature of the prosecutor’s conduct; (2) promptness or lack of curative instruction; and the strength or weakness of the evidence against the defendant. State v. Senteno, 69 Haw. 363, 366, 742 P.2d 369, 372 (1987). Conviction will be vacated when there is a reasonable possibility that the conduct might have affected the outcome. Id.

 

Using the Victim Impact Statement at Trial and Telling Jurors Defense Counsel was “Tricking” them is Misconduct. The prosecution conceded that the comments about how the homeowners felt and the comment that defense counsel was trying to “trick” the jurors amounted to misconduct. The HSC agreed. Evidence of the victim’s impact and how it felt after the fact are “rarely allowed.” HRE Rules 401 and 403. The HSC noted that it had already rejected “an approach that would permit the admissibility of the impacts of an alleged offense on a complaining witness in order to bolster the witness’s credibility after it has been impeached or attacked.” State v. Lora, 147 Hawai'i 298, 309, 36 P.3d 745, 756 (2020). In this case, testimonial evidence that the homeowners felt “violated” and that it “affected [them] deeply” was irrelevant. Highlighting it during the opening statement and again at rebuttal was highly prejudicial because it “generated sympathy for the family and impelled hostility toward Riveira.”

 

The HSC also held that the prosecutor’s comment that defense counsel was trying to “trick” the jurors amounted to misconduct. According to the HSC, “impugning defense counsel’s principles is serious misconduct.” See State v. Underwood, 142 Hawai'i 317, 327, 418 P.3d 658, 668 (2018).  It is an “impermissible attack on defense counsel’s integrity and operates to denigrate the legal profession in general.” State v. Pasene, 144 Hawai'i 339, 370, 439 P.3d 864, 895 (2019).

 

No Objection, No Instruction, No Problem? The HSC noted that there was no curative instruction given by the trial court. The lack of curative instruction and the lack of objection, according to the HSC, “rewards sloppy defense work” and “seemingly makes a successful appeal easier in a plain error prosecutorial misconduct case.” Nevertheless, the HSC here found that the second factor weighs toward new trial. The generalized instructions did not cure the problem brought on by the prosecution. Moreover, even if there had been an instruction, prejudicial comments cannot be unheard. See Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) (“The naïve assumption that prejudicial effects can be overcome by instructions to the jury . . . [is] unmitigated fiction.”).

 

The Evidence here was Overwhelming. The HSC nevertheless affirmed the conviction. “When evidence is so overwhelming as to outweigh the inflammatory effect of the improper comments, reviewing courts will regard the impropriety as ultimately harmless.” State v. Williams, ___ Hawai'i ___, 491 P.3d 592, 607 (2021). That’s what we have in this case. According to the HSC, the evidence presented against Riveira was overwhelming. Two eyewitnesses placed him at the scene. The police found the stolen property in the truck with him in it. The evidence was enough to affirm despite the “[s]erious prosecutorial misconduct.”