ICA orders new trial where prosecutor tells jury it’s blood without proving it’s blood; upholds denial of pretrial defense motions.

 State v. Willis (ICA April 30, 2024)

Background. Erik Willis was indicted for attempted murder in the second degree. This case goes back to 2020, when a 17-year-old girl was found on a Kahala Beach with stab wounds to her stomach. She survived. The police found surveillance footage showing that before she was found a “fair-skinned man, with dark curly hair, a blue disposable face mask, a clean white t-shirt, tan pants, and dark colored shoes with white striping on the side” was near the area. Footage from a bus showed the man getting on the bus and heading to the Kahala beach he got out off the bus approximately twenty minutes before the woman was found. More footage showed that at around the time the woman was found the man was running from the beach to a sink and appeared to “wash himself off.” At around 4 p.m., the man is seen with a soiled t-shirt sitting on the bus. HPD officer Matthew Motas watched the footage and identified the man as Willis.

          The police arrested Willis at his grandparents’ home. They did not have permission to enter the home and seized evidence. The grand jury returned an indictment.

          Willis filed a motion to dismiss and motions to suppress. The circuit court, with the Honorable Judge Kevin Souza presiding, denied them all. Willis sought an interlocutory appeal on the suppression and won. State v. Willis, 150 Hawai'i 235, 500 P.3d 420 (2021).

          At the jury trial, several witnesses testified for the prosecution. The complaining witness testified that she had been stabbed and identified Willis as her assailant three days after the stabbing. She also identified Willis in the courtroom. Corporal Motas also testified. Willis moved for a judgment of acquittal, which was denied.

          During his closing argument, Deputy Prosecuting Attorney Lawrence Sousie told the jury that the witnesses and surveillance footage depicted Willis washing “blood” off of his hands and face and his white t-shirt at the time of the stabbing was stained with blood. The jury found Willis guilty and he appealed.

 

The short-hand analysis for the motion to dismiss. The ICA affirmed the denial of the motion to dismiss the indictment with very little discussion and almost no analysis. Willis argued there was insufficient evidence presented to the grand jury to support its probable cause finding. According to the ICA, “similar challenges were rendered moot by the defendant’s subsequent conviction after trial, based on the supreme court’s ruling in In re Doe, 102 Hawai'i 75, 78, 73 P.3d 29, 32 (2003).”

For good measure, the ICA added that “[i]n any event, based on our review of the record, we reject Willis’s contention that there was insufficient evidence to support the indictment.”

 

The invitation to interlock. This is the ruling cited by the ICA:

 

Although the Hawai'i appellate courts have never specifically addressed the question, it is widely acknowledged in other jurisdictions that, absent unusual circumstances, any defects in a pretrial determination of probable cause are rendered moot, or are without any effective remedy, which is much the same thing, by a subsequent conviction. We agree.

 

In re: Doe, 102 Hawai'i 75, 78, 73 P.3d 29, 32 (2003) (citations and footnotes omitted). But there is at least one case in which it appears that the HSC examined the sufficiency of evidence presented before the grand jury without reference to Doe. State v. Shaw, 150 Hawai'i 56, 497 P.3d 71 (2021). The ICA did the same thing in State v. Nicholson, 120 Hawai'i 480, 484-85, 210 P.3d 3, 7-8 (App. 2009). And there are cases before Doe that have examined the sufficiency of evidence presented to the grand jury on an appeal from a conviction. State v. Ganal, 81 Hawai'i 358, 917 P.2d 370 (1996); State v. Okumura, 59 Haw. 549, 584 P.2d 117 (1978). And yet Doe did not expressly call these cases out and overrule them.

 

If Shaw and Nicholson were deciding moot points and if Ganal and Okumura were implicitly and partially overruled, then the only way defendants can get meaningful appellate review of the sufficiency of evidence presented before the grand jury is through an interlocutory appeal.

 

That takes us to another problem. Interlocutory appeals are generally permitted at the discretion of the trial court. HRS § 641-17 allows “a defendant” to appeal “from a decision denying a motion to dismiss or from other interlocutory orders, decisions, or judgments, whenever the judge in the judge’s discretion may think the same advisable for a more speedy termination of the case.”

 

This all suggests that if Doe says waiting for an appeal from the judgment renders the issue moot, then the defendant must take it up as an interlocutory appeal. The judge does not have discretion or at least should not have the discretion to deny it. That would suggest that the clause in HRS § 641-17 discussing the judge’s discretion does not apply to “a decision denying a motion to dismiss” and only applies to “other interlocutory orders, decisions, or judgments.” Time will tell if the HSC clarifies this.

 

The denial of the motion to suppress identification evidence. The ICA also addressed the motion to suppress evidence of witnesses identifying Willis. Due Process is violated when evidence of an eyewitness’s identification that is “unnecessarily suggestive and conductive to irreparable mistaken identification” is used at trial. State v. Masaniai, 63 Haw. 354, 362, 628 P.2d 1018, 1024 (1981). It is not enough to show that the eyewitness identification procedure was impermissibly suggestive. State v. Malani, 59 Haw. 167, 170, 578 P.2d 236, 238 (1978).

 

Admissibility of evidence that resulted from an impermissibly suggestive procedure is barred when it is unreliable. That is determined when the trial court weighs thirteen factors: (1) the witness’s opportunity to observe the person in the criminal act; (2) the stress, if any, to which the witness was subject at the time of the observation; (3) the witness’s ability, following the observation, to provide a description of the person; (4) the extent to which the defendant fits or does not fit the description of the person previously given by the witness; (5) the cross-racial or ethnic nature of the identification; (6) the witness’s capacity to make an identification; (7) evidence relating to the witness’s ability to identify other participants in the criminal act; (8) whether the witness was able to identify the person in a photographic or physical lineup; (9) the period of time between the alleged criminal act and the witness’s identification; (10) whether the witness had prior contacts with the person; (11) the extent to which the witness is either certain or uncertain of the identification and whether the witness’s assertions concerning certainty or uncertainty are well-founded; (12) whether the identification is in fact the product of the witness’s recollection; and (13) any other evidence about the witness’s ability to make an identification. State v. Kaneaiakala, 145 Hawai'i 231, 242-44, 450 P.3d 761, 772-74 (2019). The ICA—without much explanation—examined each factor and found that the circuit court did not err in denying the motion.

 

Telling the jury that Willis was wiping blood off his hands and face and had blood on his shirt went beyond a reasonable inference and crossed into prosecutorial misconduct. “After considering the nature of the prosecuting attorney’s conduct, promptness or lack of a curative instruction, and strength or weakness of the evidence against the defendant, a reviewing court will vacate a conviction if there is a reasonable possibility that the conduct might have affected the trial’s outcome.” State v. Riveira, 149 Hawai'i 427, 431, 494 P.3d 1160, 1164 (2021). It makes no difference if there was an objection or not; “appellate review is the same[.]” State v. Hirata, 152 Hawai'i 27, 31, 520 P.3d 225, 229 (2022).

 

The ICA focused on the prosecutor’s closing argument in which he told the jury that there was evidence of Willis washing blood off of his hands and face and that his white t-shirt was stained with blood. A prosecutor may “draw reasonable inferences from the evidence” at closing. State v. Basham, 132 Hawai'i 97, 112, 319 P.3d 1105, 1120 (2014). But they are “forbidden from introducing new information or evidence in closing argument.” State v. Hirata, 152 Hawai'i at 33, 520 P.3d at 231.

 

Saying Willis had blood on him went beyond a reasonable inference and into misconductland. The ICA held that the prosecutor’s argument went “well beyond” a reasonable inference that there was blood. Witnesses testified that they saw a man washing his face and arms in a sink around the time of the stabbing, but did not identify Willis as the man. Moreover, the witness did not even say he saw blood or anything resembling blood. He just saw the man “washing his arms, here, and also wash[ed] his face a little.” Nothing in the record allowed the prosecutor to reasonably infer that that man was Willis and that he was washing blood off his body. The prosecutor then said that Willis’s white t-shirt was stained with blood after stabbing the girl. The ICA held there was no evidence that stains on the shirt “were or even appeared to be blood.” To say that Willis got blood on him amounted to misconduct.

 

The nature of this misconduct is serious. It was exacerbated because the prosecution was aware that no blood was recovered from the sink and the white shirt itself was suppressed because it was unlawfully seized. Willis, 150 Hawai'i at 238, 241, 500 P.3d at 423, 426.

 

No objection, no curative instruction, no problem. Willis did not object at the time of the closing argument and no curative instruction was given. The ICA rejected the prosecution’s argument on appeal that the general instruction to the jury that it must consider only the evidence and that the arguments of counsel are not evidence. See State v. Riveira, 149 Hawai'i at 433, 494 P.3d at 1166.

 

The case against Willis is weak enough to warrant new trial. While there was sufficient evidence to support the verdict, the evidence was not overwhelming—which is what is required to stop a new trial based on prosecutorial misconduct. State v. Underwood, 142 Hawai'i 317, 329, 418 P.3d 658, 670 (2018). The complaining witness was the only one at trial who identified Willis as the assailant and the case hinged on her credibility. That weighs against harmlessness and so the ICA ordered a new trial.