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Hawai’i Supreme Court: Cumulative Effect of Multiple Instances of Prosecutorial Misconduct Requires Reversal

by Douglas Ankney

The Supreme Court of Hawai’i reversed the murder conviction of Iosefa Meafua Pasene due to the cumulative effect of multiple instances of prosecutorial misconduct.

In the early morning hours of March 28, 2009, Pasene, Cedro Muna, and Antonius Toloai were released from the custody of the Honolulu Police Department. Pasene and Muna were both Samoan men with similar height, build, and hair and eye color. They also wore the same colored clothing.

Later that same morning, a blue Buick stopped in front of a group of people standing outside a recreation center in Chinatown. Two men exited the Buick and repeatedly shot Joseph Peneueta, killing him. The men fled in the Buick. Two friends of Peneuta identified Pasene as one of the shooters. Two hours later, a blue Buick that had formerly belonged to Muna was reported burning near Wahiawa.

Pasene and Zorro Ramon Rye were tried for the murder of Peneueta.

Pasene’s defense was “mistaken identity” and that perhaps witnesses had confused him with Muna. Their first trial ended in a hung jury. At the second trial, Rye was acquitted. But the jury voted 9 to 3 for acquittal concerning Pasene, resulting in another mistrial.

Prior to the third trial, the court ruled that no testimony regarding the content of “the Chinatown surveillance video footage” would be permitted because the video footage was not available for trial. But in his opening statement, the Deputy Prosecuting Attorney (“DPA”) told the jury that the footage showed Muna getting into a taxi at the time of the murder. In response to defense counsel’s objection, the judge called the DPA to the bench and strongly admonished him. But the court neither sustained nor overruled the objection and failed to give a curative instruction. And then during his closing argument, the DPA again told the jury that detectives saw Muna on the video footage. Upon defense’s objection, the court admonished the DPA and told the jury to completely disregard the DPA’s statement.

The taxi driver, Darren Kawelolani, testified that he saw the driver of the Buick and that he later saw someone on TV who looked like the driver of the Buick. But in his closing argument, the DPA said Kawelolani identified Pasene as the driver. Defense counsel’s objection was overruled.

Then in his rebuttal closing, the DPA said, “[defense counsel] had this nice drawing of presumption of innocence, blah, blah, blah, right, it’s our burden ....” Defense counsel’s objection was overruled. The DPA also stated, “John Gotti, when he goes to trial, he’s presumed innocent. Charles Manson ....” Defense counsel’s objection was sustained, and the court instructed the jury to disregard the DPA’s statement.

Pasene was convicted. On appeal to the Intermediate Court of Appeals (“ICA”) he argued, inter alia, the trial court erred in failing to grant a mistrial due to prosecutorial misconduct. After the ICA affirmed, the Supreme Court granted further review.

The Court observed, “Prosecutorial misconduct may provide grounds for a new trial if the prosecutor’s actions denied the defendant a fair trial.” State v. Pemberton, 796 P.2d 80 (Haw. 1990). “Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Rogan, 984 P.2d 1231 (Haw. 1999). In reaching the determination courts consider (1) the nature of the conduct, (2) the promptness of a curative instruction, and (3) the strength or weakness of the government’s case. State v. Kahalewai, 516 P.2d 336 (Haw. 1973). Even if no single instance of misconduct standing alone was sufficient to deprive a defendant of a fair trial, courts may consider the cumulative effect of multiple errors. Id. 

As to the nature of the DPA’s conduct, the Court found it comparable to that in Pemberton because the DPA persistently failed to abide by: (1) the circuit court’s instructions, (2) case law and rules of ethical responsibility, and (3) the American Bar Association’s Criminal Justice Standards for the Prosecution. The misconduct was egregious, the Court determined.

Regarding curative instructions (where one was given), the Court observed that defense counsel’s repeated objections to the statements that the surveillance video depicted Muna getting into a taxi together with the circuit court’s curative instructions only served to focus the jury’s attention on evidence that was supposed to be suppressed. Further, the statement went to the heart of Pasene’s defense, i.e., that it was most likely Muna who killed Peneueta. Additionally, when the DPA interjected statements about John Gotti and Charles Manson, the trial court’s curative instruction likely did little to negate the emotional impact upon the jury.

The Court then turned its attention to the circuit court’s overruling of defense counsel’s objections. By overruling the objection to the DPA’s statement that Kawelolani identified Pasene, the court permitted the jury to accept the State’s “conclusion” as fact. And in overruling the objection to the DPA’s statements denigrating the presumption of innocence, the trial court failed to give any curative instruction. Additionally, when the trial court overrules an objection to the misconduct, the jury can perceive this as the court’s endorsement of the misconduct. State v. Espiritu, 176 P.3d 885 (Haw. 2008).

In considering the strength of the State’s case against Pasene, the Court observed that the properly admitted evidence was substantially the same as the evidence at Pasene’s previous trials that ended in mistrials. The Court concluded that there was a reasonable possibility that the DPA’s misconduct contributed to the jury’s decision to convict. 

Accordingly, the Court vacated both the ICA and circuit court judgments and remanded to the circuit court for further proceedings consistent with its opinion. See: State v. Pasene, 439 P.3d 864 (Haw. 2019). 

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