From leading questions to closing argument: a steady drip of prosecutorial misconduct

 State v. Cardona (HSC September 20, 2024)

Background. Oscar Cardona was indicted with murder in the second degree. Before trial, he notified the court and the prosecution that he suffers from an eye disease called myopic degeneration, has extremely blurred vision, and wears glasses. At the time of the incident, his glasses were damaged and had been he could not see. The circuit court—with the Honorable Judge Kevin Morikone presiding—ruled that Cardona could present the evidence at trial.

 

At trial, the prosecution presented evidence that one summer’s night in Waikiki, Elijah Horn was talking to some women when Elian Delacerda and Osvaldo Castaneda-Pena approached them. The men got vulgar and aggressive. Horn got scared and called Cardona to come help because he was like a father figure to him. Cardona showed up and pulled out a gold knife. Cardona and Horn told Delacerda and Castaneda-Pena to leave.

 

Delacerda and Castaneda-Pena attacked Horn. Horn hit Castaneda-Pena with a skateboard. Horn went to the ground and the next thing he saw was Delacerda lying on the ground with a woman kneeling next to him yelling for help. Horn helped Cardona find his glasses because he could not see and was in panic mode. Horn and Cardona went back to their hotel room. Cardona was beaten and bloodied. Cardona told Horn to “lay low” and that he thought he stabbed Delacerda three times in the stomach.

 

During Horn’s testimony, the prosecutor, Don Pacarro, repeatedly asked leading questions with sustained objections, stricken testimony, and cautionary instructions.

 

The prosecution also called Melissa Del Sarto, a registered nurse who had been visiting Hawai'i. She saw four men fighting—two on two until one of the men slowly went to the ground and slumped over. The crowd ran away and she ran up to the man. She knew he was dying and in a last-ditch effort to get him breathing she did CPR. The police and EMS showed up and asked her to step aside.

 

The only witness for the defense was Cardona. He was 21 that night and grew up in Waikiki. He explained his poor eyesight and how he needs to get his glasses every six months because of his rapid vision deterioration. Without his glasses, he cannot see. He testified that on the night of the incident, he got to Horn and saw two guys and a bunch of women arguing. He parked his bike and took out a knife “just in case” something were to happen. Delacerda was angry, aggressive, and swearing. It was scary. Castaneda-Pena punched Cardona in the face and broke his glasses. He explained someone started attacking him and he tried to fight back. At some point, his attacker stopped. Horn found his glasses. He testified that he held his knife out and it was possible Delacerda ran up against it and stabbed himself.

 

During the closing arguments, the prosecutor urged the jurors to find Cardona incredible: “People lie. The evidence doesn’t lie.” He went on:

 

The defendant would have you believe that an unarmed man ran into his knife. That’s not self-defense. He’s saying self-defense. What he said on the stand, that ain’t self-defense. He said, I was holding the knife. I don’t know what happened. He’s attacking me. I don’t know. Come on. He’s holding the knife like that? (Demonstrates.) Come on. Be truthful. He knows exactly what happened. He’s playing that thing over and over in his mind.

. . . .

[R]emember, there’s no credible evidence that he can’t see. There’s no credible, independent evidence that he had an eye problem.

 

He also called Cardona an “enforcer.”

 

[T]hat’s how [Cardona] was on those streets. He looked like he owned those streets, riding his bike all over, sometimes with the light on, sometimes with the light off, going up the one way, going against -- going against traffic, riding on the sidewalk, whatever, doing whatever he wants. He’s scared? He looks like the enforcer.

 

Finally, he argued that Cardona’s claim that he could not see was unsubstantiated: “[R]emember, there’s no credible evidence that he can’t see. There’s no credible, independent evidence that he had an eye problem.”

 

The jury found Cardona guilty as charged and he was sentenced to life with the possibility of parole. He appealed. The ICA affirmed.

 

The prosecutor’s argument amounted to misconduct. “Prosecutorial misconduct” refers to any improper action committed by the prosecutor no matter how harmless or unintentional. State v. Borge, 152 Hawai'i 458, 464, 526 P.3d 435, 441 (2023). Once established, appellate review is the same:

 

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 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. Hirata, 152 Hawai'i 27, 31, 520 P.3d 225, 229 (2022).

 

Don’t call the defendant a liar. The HSC found three instances of prosecutorial misconduct. First, there was the comment that “people lie. The evidence doesn’t lie.” And that after summarizing Cardona’s testimony he said, “Come on. Be Truthful.”

 

Claiming that a witness lied to the jury is improper. State v. Austin, 143 Hawai'i 18, 56, 422 P.3d 18, 56 (2018). That’s because it is the functional equivalent of expressing a personal opinion about the veracity of a witness. Id. at 51, 422 P.3d at 51. That is the case here. The prosecutor’s argument characterized Cardona as a liar and was misleading.

 

Don’t mischaracterize the defendant as an enforcer. Then came the part about Cardona being an “enforcer.”

 

[T]hat’s how [Cardona] was on those streets. He looked like he owned those streets, riding his bike all over, sometimes with the light on, sometimes with the light off, going up the one way, going against -- going against traffic, riding on the sidewalk, whatever, doing whatever he wants. He’s scared? He looks like the enforcer.

 

Cardona never testified he was scared as he rode his bike to the scene. He was scared when he was attacked and could not see. The prosecutor’s argument was improper. See State v. Basham, 132 Hawai'i 97, 112, 319 P.3d 1105, 1120 (2014).

 

And don’t be dismissive of his bad eyesight. Finally, the argument that Cardona could not see was unsubstantiated. Cardona testified he could not see. Arguing that he could not see amounted to an expression of his personal view about his credibility and guilt. See State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986).

 

The comments violated the right to a fair trial. These instances of misconduct are measured against the harmless-beyond-a-reasonable-doubt standard. State v. Hirata, 152 Hawai'i at 31, 520 P.3d at 229. The fact that there was no curative instruction did not matter. They “are not particularly effective.” Id. at 34, 520 P.3d at 232.

 

It came down to the “strength or weakness of the evidence” against Cardona. The HSC noted this came down to Cardona’s credibility, a very important factor. State v. Williams, 149 Hawai'i 381, 393, 491 P.3d 592, 604 (2021). Given that, the misconduct at closing infringed on the right to a fair trial in violation of the due process clause of Article I, Section 5 of the Hawai'i Constitution.

 

Leading questions by the prosecutor also contributed to the misconduct. The HSC also pointed out that Pacarro’s “contumacious and repeated” leading questions were disrespectful and prejudicial to the defense. Even when “no single instance of prosecutorial misconduct substantially prejudiced [the defendant’s] right to a fair trial,” the “cumulative weight” of the conduct can arise to unfair prejudice. State v. Soares, 72 Haw. 278, 815 P.2d 428 (1991). That was the case here. It contributed to the denial of the right to a fair trial.