Prosecutor's Discovery Violations, Violation of a Ruling In Limine, and Lurid Cross-Examination Require New Trial

 State v. Williams (HSC June 30, 2021)

Background. Matthew Williams was charged with multiple counts of sexual assault. The complainant was a minor male, T. Y. Before trial, the defense filed a motion in limine to exclude any of T.Y.’s out-of-court statements—particularly any statements he made to his school friends, S.S. and C.O. The circuit court, with the Hon. Judge Karen S.S. Ahn presiding, granted the motion.

 

During her opening statement at trial, the prosecutor, Victoria Chang, made several references to the out-of-court statements:

 

One of [T.Y.’s] friends will tell you about how she and [T.Y.] sat in [T.Y.’s] room the night she learned about what happened. She will tell you how [T.Y.] could not look at her, how [T.Y.] could not say what happened. He could only write it, and write it he did. Using his computer, he sent her a message.

 

The defense objected. At a bench conference, it was revealed that this message was never disclosed to the defense. The prosecutor said she never received it either because it was “one of those messages that disappears.” The circuit court sustained the objection because even referencing the message was prejudicial. The circuit court instructed the jury to disregard the prosecutor’s “assertion . . . about an alleged computer message.”

 

During the trial, T.Y. testified that Williams sexually abused him on two occasions in 2012. He also testified that he told his friends about those incidents. S.S., one of the friends, testified about T.Y.’s “sudden change” in demeanor. Over the defense’s objection, S.S. testified that T.Y. “told me what happened” through a message and added that “I know that he wasn’t lying, obviously. He would tell me the truth.”

 

The prosecutor called C.Y., T.Y.’s father. He testified about an “odd incident” involving Williams. According to C.Y., Williams insisted on accompanying him on a drive from Kaneohe to Laie. During the drive, “all he could talk about was” T.Y. The defense objected on the grounds that that statement from Williams had never been disclosed in discovery and was a violation of the discovery rules. The prosecutor argued she did not know what Williams actually said and only knew about the fact that he was generally talking about T.Y. The circuit court sustained the objection. Despite the ruling, the prosecutor continued her line of questioning about the conversation. The defense objected two more times. They were sustained without a curative instruction.

 

The defense called three female non-family character witnesses to testify about Williams’s nonviolent and non-aggressive character, his honesty, and his integrity. During the cross-examination, the prosecutor asked each of them if “sucking a child’s penis is not something you would expect to see in public; right?” The defense objected and it was sustained.

 

The circuit court’s instructions included the generalized instruction to “disregard entirely any matter which the Court has ordered stricken.” Williams was found guilty as charged. He was sentenced to prison for twenty years. He appealed to the ICA, which agreed the prosecutor engaged in misconduct, but it was harmless. Williams petitioned to the HSC.

 

Prosecutorial Misconduct—the three Elements for a new trial. Every defendant has the constitutional right to a fair trial. U.S. Const. Am. VI; Haw. Const. Art. I, Sec. 14. When the prosecutor engages in misconduct that deprives the defendant of that right, a new trial is required. State v. Underwood, 142 Hawai'i 317, 325, 418 P.3d 658, 666 (2018). Claims of prosecutorial misconduct hinge on three factors: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength of the evidence against the defendant. State v. Pasene, 144 Hawai'i 339, 364, 439 P.3d 864, 889 (2019). Moreover, “the cumulative weight of such errors may create an atmosphere of bias and prejudice which no remarks by the trial court could eradicate.” Id. The HSC here found three specific instances of prosecutorial misconduct.

 

Eliciting Evidence of the Defendant’s Statement at Trial Violated the Discovery Rules and Misconduct. The HSC found three instances of misconduct committed by the prosecutor. First, the prosecutor’s failure to disclose Williams’s out-of-court statements to C.Y. in the car ride violated the discovery rules. The prosecution must disclose “any written or recorded statements and the substance of any oral statements made by the defendant” prior to trial. Hawai'i Rules of Penal Procedure (HRPP) Rule 16(b)(1)(ii). For the HSC, the prosecutor’s ignorance about the particulars of Williams’s statement was of no consequence. Disclosure of “the substance of any oral statements” made by Williams was required. And despite the sustained objections, the prosecutor continued to ask C.Y. about these previously undisclosed statements.

 

Introducing Evidence that had been Precluded by a Motion in Limine was Misconduct. When it comes to evaluating the nature of the misconduct, the HSC is sensitive to instances surrounding credibility. “The potential for prejudice is particularly evidence where . . . the improper comments specifically concerned the credibility of the testimony on which the case turned.” State v. Underwood, 142 Hawai'i 329, 418 P.3d at 670. Here, the prosecutor elicited evidence of T.Y.’s out-of-court and computerized statement to S.S. This out-of-court statement to a friend went directly to undermine Williams’s credibility and corroborate T.Y.’s trial testimony. It “may have imparted to the jury that because T.Y. told S.S. about the alleged abuse, he was credible.” The prosecutor’s introduction of inadmissible hearsay that was already barred by the motion in limine was misconduct.

 

Lurid and Inflammatory Cross-Examination of the Defense Witnesses was Misconduct. Prosecutors cannot resort to arguments “calculated to inflame the passions or prejudices of the jury.” State v. Pasene, 144 Hawai'i at 370, 439 P.3d at 895. Even when statements are not intentionally designed to inflame the jurors, if it is likely to result in inflaming passions and prejudices, it is prejudicial and intolerable. Id.

 

The prosecutor cross-examined three defense witnesses with the same question—whether they expected to see someone sucking a child’s penis in public. The HSC held that this was designed to inflame the passions and prejudice of the jury. According to the HSC, the question “emphasized the lurid nature of the accusations and was likely to elicit an emotional response from the jury. The questions were rhetorical and called for immaterial information.” It was misconduct.

 

Circuit Court Lacked Curative Instructions on most of these instances. A curative instruction will generally ensure that despite the prosecutorial misconduct, the constitutional right to a fair trial is honored. State v. Pasene, 144 Hawai'i at 365, 439 P.3d at 890. However, there are times when “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 prejudicial remarks harmless.” State v. Pemberton, 71 Haw. 466, 476, 796 P.2d 80, 85 (1990). And when the trial court does provide a curative instruction, the instruction can still fail to cure the prejudicial effect when “the instruction did not address the problematic nature of the prosecutor’s statements” and “the instruction was general in nature and was delivered to the jury along with a large number of other standard instructions before closing arguments began.” State v. Underwood, 142 Hawai'i at 328, 418 P.3d at 669.

 

Here, the circuit court’s general instruction given before closing arguments failed to cure the prejudicial effect of the prosecutor’s discovery violation about Williams’s statement to C.Y. The misconduct occurred in the middle of the evidentiary phase of trial and the more generalized instruction was given two days later along with “a barrage of other instructions.” According to the HSC, “the jury would not have known the evidence or objections to which the court was referring.”

 

The HSC also held that the curative instruction ordering jurors to disregard the evidence about T.Y.’s out-of-court message to S.S. failed to cure the prejudicial effect. The prosecutor referred to this inadmissible evidence in her opening statement and even after the trial court sustained the defense’s rulings and told jurors to disregard it, the prosecutor continued to elicit evidence about this statement. A prosecutor’s “willful violation of the circuit court’s in limine ruling” is not overcome by a limiting instruction. State v. Pacheco, 96 Hawai'i 83, 98, 26 P.3d 572, 587 (2001). The HSC held that that’s what happened here.

 

As for the lurid and inflammatory questions to the defense witnesses, there was no curative instruction.

 

The Evidence was not so Overwhelming that it Outweighed the Prejudice. “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. Underwood, 142 Hawai'i at 328, 418 P.3d at 669. Put differently, “[w]hen it cannot be said beyond a reasonable doubt that the same result would have been reached absent the improper conduct . . . the defendant’s conviction must be vacated.” Id. That means that “[w]hen a conviction is largely dependent on a jury’s determination as to the credibility of a complainant’s testimony, [] the evidence of the offense is not so overwhelming that it renders the prosecutor’s improper statements harmless beyond a reasonable doubt.” Id. at 325, 418 P.3d at 670.

 

This case came down to credibility. The jury needed to determine if T.Y. was credible or Williams. The HSC held that the evidence here is not so overwhelming that the prejudice can be ignored. The judgment was vacated and remanded for a new trial.