Hawai’i Supreme Court: Prosecutor’s Cumulative Misconduct Deprived Defendant of a Fair Trial, Vacates Denial of Motion for New Trial
by Douglas Ankney
The Supreme Court of Hawai’i vacated the judgment of the Intermediate Court of Appeals (“ICA”) that held a prosecutor’s cumulative misconduct was harmless.
Matthew K. Williams was convicted of sexually assaulting T.Y., a minor. At trial, the prosecutor introduced to the jury incriminating statements allegedly made by Williams to C.Y. (T.Y.’s father) without previously disclosing them to the defense during discovery in violation of Hawai’i Rules of Penal Procedure (“HRPP”) Rule 16(b)(1)(ii). The prosecutor also introduced out-of-court statements incriminating to Williams that were allegedly made by T.Y. and had been barred by a ruling of the trial court on a motion in limine. Finally, the prosecutor engaged in improper, unnecessarily lurid questioning of defense witnesses by asking three of the witnesses, “[S]ucking a child’s penis is not something you would expect to see in public, right?”
The jury found Williams guilty, and he moved for judgment of acquittal or a new trial based, in part, on the prosecutor’s misconduct. The trial court denied the motion. Williams appealed, arguing, inter alia, the prosecutor’s misconduct violated his right to a fair trial. The ICA affirmed Williams’ conviction, holding the failure to disclose Williams’ statement to C.Y. was the only instance of misconduct—but the error was harmless. The Hawai’i Supreme Court granted Williams’ application for certiorari.
The Court observed “[t]he constitutions of the United States and the State of Hawai’i guarantee every individual accused of a crime the fundamental right to a fair trial.” U.S. Const. amend. VI; Haw. Const. art. I, § 14. “Prosecutorial misconduct may provide grounds for a new trial if the prosecutor’s actions denied the defendant a fair trial.” State v. Pasene, 439 P.3d 864 (Haw. 2019). In determining whether a prosecutor’s misconduct deprived the defendant of the right to a fair trial, the Hawai’i Supreme Court considers three factors: “(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.” Id.
Misconduct requires vacating a conviction when there is a reasonable possibility that such misconduct might have contributed to the conviction. State v. Underwood, 418 P.3d 658 (Haw. 2018). If no single error or prejudicial remark constitutes prosecutorial misconduct, “the cumulative weight of such errors may create an atmosphere of bias and prejudice which no remarks by the trial court could eradicate.” Pasene.
As to factor (1) of Pasene’s framework, HRPP 16(b)(1)(ii) requires disclosure of “any written or recorded statements or the substance of any oral statements made by the defendant” prior to trial. In the instant case, the complaining witness’ father, C.Y., testified about a car ride during which Williams fixated on T.Y. in a long conversation. Despite the trial court sustaining defense counsel’s continued objections that the substance of Williams’ alleged statement hadn’t been disclosed, the prosecutor persisted in question C.Y. about the alleged conversation. Since this case hinged on whether the jury believed Williams or believed T.Y., evidence that Williams had a fixation or inappropriate level of interest in T.Y. might have prompted the jury to believe Williams had inappropriate feelings for T.Y. that he later acted upon, the Court reasoned. Thus, the Court concluded that the prosecutor’s continued questioning of C.Y. about the conversation without pretrial disclosure was misconduct.
Additionally, the Court determined that the prosecutor’s introduction of out-of-court statements made by T.Y. that had been barred pretrial via a motion in limine was misconduct—T.Y. allegedly sent computer messages to his friend S.S. detailing the sexual assaults. The testimony of S.S corroborated T.Y.’s accusations and undermined Williams’ credibility in denying any sexual activity occurred. Again, because this case turned on whether the jury believed Williams or T.Y. “[t]he potential for prejudice is particularly evident where ... the improper comments specifically concerned the credibility of the testimony on which the case turned.” State v. Underwood, 418 P.3d 658 (Haw. 2018).
Finally, the Hawai’i Supreme Court has “recognized that prosecutors should not use arguments calculated to inflame the passions or prejudices of the jury.” Pasene. Such arguments and comments “may lead the jury to react based on emotion, rather than in an objective way, and threaten to introduce an atmosphere of bias and prejudice as the jury enters deliberation.” Id.
The prosecutor’s rhetorical question asking whether sucking a child’s penis was something the witnesses expected to see in public did not present any evidence to the jury; was clearly calculated to inflame the passions of the jury; and was misconduct, the Court concluded.
Turning to Pasene’s factor (2), to determine whether the trial court’s instructions to the jury cured the risk of prejudice, the Court evaluates “whether the cumulative effect of the prejudicial conduct going to the issue of guilt is so strong that it overcomes the presumption that the curative remarks have rendered the prejudicial remarks harmless.” State v. Pemberton, 796 P.2d 80 (Haw. 1990). Jury instructions fail to cure the prejudicial effect of a prosecutor’s statements where: (1) “the instruction did not address the problematic nature of the prosecutor’s statements;” and (2) “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.” Underwood.
The Court determined that in the instant case the trial court’s general instruction to disregard any evidence to which an objection was sustained failed to cure the prejudicial effect of the prosecutor’s continued questioning of C.Y. about his conversation with Williams. Even though the trial court repeatedly sustained the defense’s objections at bench, the trial court did not sustain the objection in front of the jury; did not order the testimony stricken; and did not give a curative instruction. The trial court’s general instruction given two days later was of no effect in light of these circumstances, according to the Court.
Regarding the testimony of S.S., the prosecutor first made reference to her testimony in the opening statements. Because the testimony of S.S. concerning T.Y.’s out-of-court statements had been barred pretrial, the trial court ordered it stricken from opening statements. Yet the prosecutor later introduced the evidence through S.S.’s testimony, and it remained introduced. The Court stated that the trial court’s earlier curative instruction did not cure the prejudice. See State v. Pacheco, 26 P.3d 572 (Haw 2001) (Court granted defense’s motion in limine seeking to exclude at trial defendant’s prior convictions, yet prosecutor willfully violated the court’s ruling. The prejudicial effect of such misconduct couldn’t be overcome because the trial court failed to give curative instruction during cross-examination or closing arguments when the statements in violation of the motion were made.).
Finally, with regard to the blatantly lewd question about sucking a child’s penis, no curative instruction was given by the trial court. Consequently, the lack of a limiting instruction meant the prejudicial effect was not cured, the Court stated.
Turning to Pasene’s factor (3), the Court observed “[w]hen a conviction is largely dependent on a jury’s determination as to the credibility of a complainant’s testimony, the evidence is not so overwhelming that it renders the prosecutor’s improper statements harmless beyond a reasonable doubt.” Underwood. In the instant case, the Court determined “it cannot be said that the prosecutor’s use of undisclosed and previously barred evidence and inflammatory questioning of witnesses ‘did not contribute to the jury’s determination of guilt.’” Pasene.
The Court concluded, “[a]fter considering the inflammatory nature of the prosecutor’s misconduct, the lack of prompt curative instructions from the circuit court and the relative weight of the evidence supporting Williams’ conviction, we find that the cumulative effect of the prosecutor’s misconduct created an ‘atmosphere of bias and prejudice’ that deprived Williams of a fair trial.” Pasene.
Thus, the Court held “[t]he circuit court erred in denying Williams’ motion for a new trial based on prosecutorial misconduct, and the ICA erred in concluding that the prosecutor’s misconduct was harmless.”
Accordingly, the Court vacated both the ICA’s judgment and the circuit court’s order denying Williams’ motion for a new trial and remanded to the circuit court for further proceedings consistent with the Court’s opinion. See: State v. Williams, 491 P.3d 592 (Haw. 2021).
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Related legal cases
State v. Williams
|Cite||491 P.3d 592 (Haw. 2021)|
|Level||State Supreme Court|
State v. Pacheco
|Cite||26 P.3d 572 (Haw 2001)|
|Level||State Supreme Court|