Summary
finding ineffective assistance of counsel not to elicit evidence of the CW's meth use because the evidence was critical to " ‘the outcome of the case [which] depended on the credibility’ of the CW and [the defendant]"
Summary of this case from State v. HirataOpinion
SCWC-16-0000386
06-19-2020
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Cari SALAVEA also known as Cari Carveiro, Petitioner/Defendant-Appellant.
Randall H. Hironaka, Honolulu, for petitioner Sonja P. McCullen, Honolulu, for respondent
Randall H. Hironaka, Honolulu, for petitioner
Sonja P. McCullen, Honolulu, for respondent
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
Under article I, section 14 of the Hawai‘i Constitution and the Sixth Amendment of the United States Constitution, defendants in criminal cases are provided with the right to the effective assistance of counsel at trial. The defendant in this case contends that she was denied this right because her trial counsel failed to adduce critical evidence impeaching the credibility of the State's key witness. Because we conclude that the failure to adduce this evidence had no obvious tactical benefit to the defendant's case and that the adequacy of counsel's representation, when viewed as a whole, was not within the range of competence required of attorneys in criminal cases, we conclude that the defendant was denied the right to the effective assistance of counsel. We also consider the defendant's contention that prosecutorial misconduct was committed during closing argument to address the Intermediate Court of Appeals' interpretation of applicable precedent and because consideration of this issue further evidences that the assistance of defense counsel was ineffective.
I. BACKGROUND AND PROCEDURAL HISTORY
On April 17, 2015, Cari Salavea was charged by felony information with burglary in the first degree, in violation of Hawai‘i Revised Statutes (HRS) § 708-810(1)(c). The felony information alleged that on or about March 27, 2015, Salavea unlawfully entered the residence of the complaining witness (CW) with the intent to commit a crime therein, thereby violating HRS § 708-810(1)(c). Salavea entered a plea of not guilty, and a jury trial was scheduled for the week of June 22, 2015.
HRS § 708-810(1)(c) (2014) provides as follows:
(1) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and:
....
(c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.
The Honorable Karen S.S. Ahn presided over pretrial proceedings, the jury trial, and sentencing.
On June 22, 2015, Salavea filed a notice of intent to use evidence (Salavea's Notice) stating that she intended to adduce evidence that the CW was in the process of using methamphetamine in her residence at the time of the alleged burglary. Salavea stated that the CW's drug use undermined the reliability of the CW's perception and memory of the alleged offense. On June 29, 2015, the State moved for a continuance, citing the unavailability of a witness. The court granted the motion over defense objection, and trial was rescheduled for the week of September 8, 2015.
On August 13, 2015, Salavea's counsel, the Office of the Public Defender, moved to withdraw as counsel due to a conflict of interest arising from its ongoing representation of the CW in a separate matter. In a declaration attached to the motion, counsel averred the ethical obligation to raise the CW's substance abuse as a relevant factor in Salavea's case. Counsel stated that continued representation of Salavea would compromise the attorney-client relationship between the Office of the Public Defender and the CW. The court granted the motion on August 25, 2015, ordering the appointment of substitute counsel. At a hearing on September 4, 2015, substitute counsel requested a continuance so that counsel could prepare for trial. The State did not object, and trial was rescheduled for the week of November 16, 2015.
On November 13, 2015, the State filed a notice of intent to use evidence of other acts (State's Notice), asserting that the State intended to present evidence of Salavea's admitted gambling problem, her drug use in 2014 and 2015, and the circumstances of a prior theft conviction. The State contended that this evidence was probative of Salavea's motive, opportunity, intent, and lack of mistake, as well as relevant for impeachment purposes.
The State argued that Salavea's gambling was relevant because Salavea and the CW had gambled together in the past, Salavea had asked the CW to lend her money at some time prior to the alleged burglary, and the CW had refused to do so. The State maintained that these facts demonstrated Salavea's motive to commit the burglary. Additionally, the State contended Salavea's prior drug use was relevant because the CW was expected to testify that she had distanced herself from Salavea because the CW felt she was at risk of relapsing while in Salavea's company based on Salavea's drug use and their history of using drugs together, which in turn upset Salavea and provided a motive for the current offense.
The State also moved in limine to exclude, inter alia, evidence of the CW's history of drug use. If Salavea was allowed to inquire about the CW's history of drug use, the State maintained, Salavea would be opening the door to the CW's explanation that she distanced herself from Salavea to avoid relapsing. In response, Salavea filed a motion in limine seeking preclusion of the evidence that was the subject of the State's Notice. Salavea maintained that her gambling and history of drug use during 2014 and 2015 should not be admitted because they were irrelevant.
The hearing on the parties' motions in limine and notices of intent was held on the day trial commenced. The deputy prosecuting attorney (DPA) contended that evidence of prior drug use by either the CW or Salavea was not relevant and should be excluded at trial. The following was stated in regard to the State's motion in limine:
[DPA]: Judge, if I may elaborate, the reason I put it in here, my position is actually pretty clear-cut. I think any kind of prior drug use or being on [HOPE Probation] or anything like that by either a Complainant or Defendant should not be coming in. The only issue is whether—I understand they're making allegation whether Complainant was using drugs at the time of the incident, and that's a separate issue. This is not what's in this.
THE COURT: Okay. Use of drugs by anybody, whether it be the Defendant or any witness, other witness, I think is legitimate under the case law because it goes to your ability to perceive and recall. It's up to the jury to decide whether there was an effect or not.
....
THE COURT: And drug use on other occasions is irrelevant.
[DPA]: It's irrelevant, yes.
[DEFENSE COUNSEL]: Yeah, but I mean, when [Salavea] saw—I mean, there were drugs at the scene and activity involving those drugs, so—
....
[DEFENSE COUNSEL]: [I]t ties in with drug use at the occasion, and it ties in beyond just, you know, was her perception failing due to drug use.
THE COURT: Okay. That will not come up until your case.
[DEFENSE COUNSEL]: Right.
....
THE COURT: It may have to do with the state of mind, right?
[DPA]: Right, memory, perception, state of mind, but not any kind of other drug use or she's known her as a person who used drugs before or this is what she does all the time. That's what I'm objecting to because it's not relevant.
[DEFENSE COUNSEL]: No, and I agree with the State. I mean, there's certainly not going to be any attempt to expand beyond what [Salavea] perceived the situation to be in that room, not just, you know, how good [the CW]'s perception was but in terms of were there drugs there, was that girl getting into trouble with drugs, you know, that sort of thing.
....
THE COURT: In Cross, I would think we're limited to the event, the event at issue.
[DPA]: Exactly.
[DEFENSE COUNSEL]: Well, based upon what she says—
[DPA]: She cannot—"Were you using the drugs on March 27th?" and the answer is going to be no, and they have to live with that.
THE COURT: Yeah, until something else comes up, and that would be in the Defense's case.
[DPA]: Defense's side, and when Defense's side comes up, they can rebut the testimony with the perception of what happened in the room, if she had blurry eyes or slurred speech or if she was acting funny, whatever, but they cannot go into past drug use, history of drug use, or any kind of "I know she was using drugs even though she looked normal because she always uses drugs," you know, so I want to make sure that the rebuttal is also limited to perception of what happened in this room.
....
I'd also like to point out ... there's a portion of why I filed Notice of Intent. If it does come out and it's pretty much irreparable and the jury here hears Defendant's testimony about any kind of allegations of prior drug use or whatever that goes beyond the scope of that event, State should be allowed to question Defendant and bring it up that they were doing it together over that period of time.
THE COURT: Oh, yeah, it's fair Cross. Both of you have a right to fair Cross, and credibility is always, obviously, an issue in addition to what happened that night or that day.
[DPA]: I'm sorry. Not just that day, but if the history of drug use—
THE COURT: I understand what you're saying. No, you have the right to fair Cross, and [Defense Counsel] has a right to fair Cross.
[DPA]: And this goes to her state of mind.
THE COURT: Okay, I think we've talked about No. 1. I think we understand where we are.
(Emphases added.)
After ruling on the State's remaining motions in limine, the court considered Salavea's motion to exclude the evidence that was the subject of the State's Notice. The following exchange took place with regard to Salavea's history of drug use in 2014 and 2015:
THE COURT: Okay. Defendant's drug use in 2014 and 2015, is that something you still want at this point?
[DPA]: Well, yes. If they open the door through bringing up the whole history and everything else[.]
(Emphasis added.)
The court then considered Salavea's Notice. The court stated that "[Salavea]'s Notice of Intent will be granted, assuming the evidence is that [the CW] ... was using ice at about 1:30, and that's when this incident occurred, and I'm hearing that from the lawyers. I guess that comes in to show perception and recall."
Crystal methamphetamine is "commonly known as ice" in Hawai‘i. H. Stand. Comm. Rep. No. 495–04, in 2004 House Journal, at 1603.
At trial, the CW testified that she was living with her parents and her six-year-old daughter in a secured apartment building at the time of the incident. An electronic fob was needed in order to access the building. She had lost her original fob in June 2014 but did not know where she lost it. According to the CW, she reported her fob as lost and had it replaced but did not deactivate the misplaced fob because she thought she might find it at some point.
The CW also testified that she and Salavea had been close friends and had known each other for six years. The CW was godmother to one of Salavea's children and had been the maid of honor at her wedding. She and Salavea would meet every once in a while and do family activities together such as taking their kids to the pool. They were very close but did not always spend time together, and she had started spending less time with Salavea at the beginning of 2015. The CW acknowledged that she let Salavea borrow possessions from her in the past, but she stated that Salavea borrowed more from her than she did from Salavea. Prior to March 27, 2015, the last time she had seen Salavea was earlier that month on March 6, when they went gambling together, and they had been out all night.
The CW testified that on the afternoon of March 27, she was at home recovering from a workplace injury to her foot. The CW stated that she was at her residence that day with her parents until they left sometime between 1:15 and 1:30 p.m. She received a call from Salavea around that time but did not answer the phone. She then fell asleep for a while; when she woke up, her phone was missing as were some other possessions, including a tablet and a backpack containing her wallet. The CW called her mother on the landline to see if she had seen her phone, but her mother said she had not. She went downstairs to building security and reviewed surveillance footage of the elevators going up to her floor. The footage showed Salavea entering the building and making her way to the floor on which the CW resided. It then showed Salavea reentering the elevator and exiting the building carrying the missing backpack. The CW testified that she had not given Salavea permission to enter her home or to take her backpack.
The CW's mother corroborated this statement in her testimony. The CW's mother also testified that when she returned to the apartment the CW was "speak[ing] okay."
Ray Pavao, a security guard at the CW's apartment complex, testified that around 7:00 p.m. on March 27, 2015, the CW reported that someone had possibly come into her unit and taken some of her belongings. He and the CW reviewed the security footage together. Michael Bryant, a security supervisor at the CW's apartment complex testified that he reviewed the record of fob usage between March 1 and March 31, 2015 on the apartment computer system, and one fob registered to the CW was used only three times, all on the afternoon of March 27, 2015. Additionally, Bryant stated that the record of fob purchases by residents showed that the CW had purchased another fob on June 27, 2014, but there was no record that a fob assigned to the CW was deactivated.
Salavea testified that she went to the CW's residence on the afternoon of March 27, 2015, because she was returning the CW's house key to her, which she said the CW had left in Salavea's car earlier that month on March 6. Salavea stated that she called the CW around noon on March 27 to tell her that she was in town and was going to stop by to drop off the CW's house key. The CW told her to park in the CW's designated parking stall and come upstairs. Salavea testified that she then went to the CW's apartment where she met and spoke with the CW. After speaking with the CW, she borrowed a pair of slippers and a backpack from her and left the apartment. Salavea identified the backpack that she borrowed as the same backpack shown in the surveillance footage. The following exchange then took place:
[DEFENSE COUNSEL]: Did anything else occur between the two of you while you were there?
SALAVEA: Can you—what do you mean?
[DEFENSE COUNSEL]: Let me ask you this. How long did you stay there?
SALAVEA: Not long 'cause my friend was in the car waiting.
[DEFENSE COUNSEL]: So did anything else occur before you left? You borrowed her sneakers, her backpack.
SALAVEA: Well, she told me not to take her bag 'cause she was going to use it, so I told her that I wanted to use it and she can come to my house and get it when she's not out of it.
[DEFENSE COUNSEL]: And did she seem alert on that occasion when you said "when she's not out of it"?
[DPA]: Objection, Your Honor.
[DEFENSE COUNSEL]: I'll rephrase.
[DPA]: And I'm also objecting to the last answer.
THE COURT: To the last answer? There was no answer.
[DPA]: The basis is hearsay.
THE COURT: Oh, to the last answer. All right. Well, it is hearsay. I'll strike that last answer by the witness, and the jury will disregard it.
[DEFENSE COUNSEL]: I'm sorry. The portion that her friend said to her?
THE COURT: This thing about "she didn't want me to use it."
[DPA]: No, the last portion, the last portion of the answer, what Defendant is saying she told her. It's basically self-serving hearsay that is adduced by Defendant—
THE COURT: And I'm striking it as hearsay, the whole answer.
[DPA]: No, only starting with "I told her," so when she was not given permission to use the bag, I'm not asking to strike that.
THE COURT: "She told me," everything after that in the last answer is stricken. Jury will disregard it.
[DEFENSE COUNSEL]: Very well. So on that occasion, did you leave with her backpack?
SALAVEA: Yes.
[DEFENSE COUNSEL]: And you left with her footwear?
SALAVEA: Her slippers.
[DEFENSE COUNSEL]: Where did you go from there?
SALAVEA: We went to Popeye's so my friend could use the bathroom and grab something to eat, and then we went back to the west side, my house.
Defense counsel did not attempt to rephrase the question that drew the State's hearsay objection. At no point did defense counsel inquire, nor did Salavea testify, about whether the CW was using or under the influence of methamphetamine while Salavea was there.
Salavea also testified that she had borrowed backpacks and shoes from the CW in the past. On cross-examination, the DPA questioned Salavea about her intent to return the bag to the CW. Salavea explained that she had asked her husband to return the bag, but he had been unable to contact the CW. The prosecutor then questioned Salavea about her statement that the CW had told her not to borrow the bag because the CW wanted to use it. Specifically, the prosecutor asked if Salavea thought it was "okay" for her to borrow the bag, even though the CW told her not to take it, because she had borrowed items from the CW previously without express permission. Salavea responded that the CW "was there" but acknowledged that it was not okay to take the bag without express permission. After this acknowledgement, the DPA asked Salavea, "So it wasn't okay to take it?" and Salavea responded, "No, it wasn't." The DPA then stated, "So it was a theft?" and Salavea said, "Yeah."
Salavea also testified that she had been unable to return the CW's backpack herself because she was incarcerated, but she had told the police where the CW's backpack was located after she was arrested.
At the conclusion of the evidence, the court instructed the jury on the elements of burglary in the first degree and the included offenses of criminal trespass in the first degree and theft in the fourth degree.
During closing arguments, the DPA made the following statements:
[DPA]: The Defendant in this case, Cari Salavea, is guilty of Burglary in the First Degree, not just of Trespass or Theft but of Burglary in the First Degree, and the reason why is because she entered unlawfully into [the CW's] house with intent to commit a crime, with intent to steal. [The CW] told you the truth. [The CW]'s testimony was credible.
THE COURT: Well, the State submits.
[DPA]: Thank you. The State submits that [the CW]'s testimony is credible because it is corroborated by other evidence, because it makes sense, and because you, as the judges of everybody's demeanor and looking at those factors that are given to you in the jury instructions, can assess for yourself whether it makes sense or not.
....
Defendant's story that she had permission to go in and she had somehow thought it was okay and that [the CW] cooperated with her and [the CW] let her do all of that is not credible. It's not credible, it's a lie, because it doesn't make any sense.
[W]hat you need to focus on and this is how the State submits to you that it's proven that Defendant's story doesn't add up—is the whole story by Defendant that the fob was lost by [the CW] on March 6th does not hold, does not hold up. That's a lie, and from there, it follows that she was concealing the fob, she was deliberately holding on to that fob secretly so she could go in her own time at her own convenience and take from [the CW].
[The CW] told you and she was very frank with you, she explained in details what happened to her fob. She told you she lost that fob as far as almost a year prior to this incident in March, and that testimony was corroborated by Ray Pavao. That testimony was corroborated by the records that she got an additional fob, she got the second fob.
....
What does that mean? That shows you that [the CW] told you the truth. She told you she lost the fob and she got one on June 27th. The records show that she got her replacement fob on June 27th. That directly contradicts Defendant's story that [the CW] lost it in the car, and from there, everything crumbles, everything the Defendant tells you is not true.
....
So, ladies and gentlemen, for these reasons, State submits to you that Defendant is guilty as charged of Burglary in the First Degree, not just of Trespass or Theft. It's a Burglary in the First Degree because Defendant, by lying about how the fob situation went up, she concealed that fob, she went there specifically with an intent to commit the crime because she have both motive and opportunity.
(Emphases added.)
During the defense's closing argument, defense counsel made the following statements:
[DEFENSE COUNSEL]: If I may leave you with a suggestion of evaluating the evidence in this case, it would be this. You recall that just before our lunch break, [Salavea] went on the witness stand, and the Deputy Prosecutor asked her whether she didn't take the Roxy bag without permission and whether that wasn't indeed theft, and [Salavea] broke down, she was in tears, and that's, I suggest—
[DPA]: Objection, Your Honor. This is not in evidence, and it's personal statement.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And that's because it probably didn't even occur to her that that playful little act might be viewed by the law as a theft. Now, the Government would have you believe that [Salavea], being that type of person, would take all of her friend's valuables, and it's just not borne out by the evidence. Something occurred between these two women, but it wasn't a burglary.
Then, during rebuttal, the State made the following statements:
[DPA]: Ladies and gentlemen, what Defense Counsel was just doing was trying to appeal to your sense of pity or some kind of sense, you know, for Defendant, and that's improper. You are given an instruction that you should not be influenced by that.
....
Now, if you look at who is more likely to cook up a story, that was a good suggestion, and State submits to you that one of the guiding, multiple guiding factors are on page 8 of your jury instructions where Judge Ahn did read to you the multiple factors that you may consider in determining whether a person is telling the truth or not.
One of them is the witness' manner of testifying. That is significant. You saw how [the CW] testified. I don't know if calling her sophisticated is kind of an overstatement. That's your judgment entirely. She may not have looked as sophisticated as [Defense Counsel] is claiming, but she was very forthright, she was very forthright about how she felt.
And she also told you frankly that they were close friends. She was disappointed with how their relationship went, but she also did express no bias or no reason or no negativity towards Defendant even though I asked her hard questions. I was kind of asking her, you know, like, how did you feel, what was your, you know, what was your feeling towards relapsing, gambling every time you met with Defendant. She
was very, she was very mild as far as when—
THE COURT: The State submits. The State submits.
[DPA]: State submits her testimony was not in any way showing any animosity. If anything, she felt betrayed and disappointed. She had nothing against Cari. Even after this incident, she did not—she has no claim that there was some kind of reason for her to feel specific animosity towards her friend. She was also very frank and forthright how she described what happened to her when she discovered things were missing. She told you in details how she was trying to call her phone, and it went to ringing first, then voicemail.
....
But why would she go to Ray and look at that video to try to figure it out if in fact it happened the way Cari says it happened? Cari Salavea is not a truthful witness.
Another factor is interest, if any, in the result of this case. Of course, every Defendant has a lot of interest in the result of the case, and that's natural, but you cannot disregard it. It's still there. There is interest and bias. Defendant has a lot of interest what's at stake, while [the CW], why would [the CW] go through all of this and why would [the CW] go and make up a story if it was not what happened? There was no evidence by Defendant why is it that [the CW] would do it, and there was no evidence from [the CW], even though we pushed her, both of us, that she had any reason to tell this story. She told you the truth.
THE COURT: Well, the State submits.
[DPA]: State submits she told you the truth.
THE COURT: Strike that "She told you the truth." What is your argument? Jury will disregard that part of the argument.
[DPA]: Okay.
(Emphases added.)
The jury found Salavea guilty of burglary in the first degree. On April 19, 2016, the circuit court sentenced Salavea to ten years of imprisonment, with a mandatory minimum term of four years and six months (amended judgment). Salavea timely appealed from the amended judgment to the Intermediate Court of Appeals (ICA).
Salavea's counsel on appeal was not counsel at trial.
On appeal, Salavea contended that her conviction should be vacated or reversed because (1) defense counsel was ineffective for failing to adduce the evidence of the CW's drug use at the time of the incident; (2) the DPA committed prosecutorial misconduct during closing argument; and (3) the State's evidence was insufficient to support her conviction. In regard to her second point of error, Salavea argued that the DPA committed misconduct by offering a personal opinion about Salavea's credibility and the credibility of the State's witnesses, personally attacking defense counsel and accusing counsel of misconduct, and implying that Salavea was obligated to adduce evidence undermining the CW's credibility, thereby improperly shifting the burden of proof to the defense.
II. ICA PROCEEDINGS
The ICA first considered Salavea's contention that the assistance of counsel at trial was ineffective. The ICA found that defense counsel's failure to adduce evidence of the CW's use of methamphetamine at the time of the alleged crime was a deliberate tactical decision. Citing the motions in limine hearing, the ICA determined that any allegations about the CW's prior drug use would have opened the door to evidence about Salavea's history of drug use. On this basis, the ICA concluded defense counsel chose not to adduce the evidence of the CW's drug use at the time of the incident in order to avoid the introduction of evidence of Salavea's history of drug use.
The ICA's memorandum opinion can be found at State v. Salavea, No. CAAP-16-0000386, 2019 WL 763475 (App. Feb. 4, 2019) (mem.).
The ICA then considered Salavea's contention that several statements made by the DPA during closing argument constituted prosecutorial misconduct. Although the DPA had characterized the CW's testimony as the truth and Salavea's testimony as a lie, the ICA observed that the DPA described in detail how the evidence adduced at trial made the CW's testimony more credible than that of Salavea. In addition, the ICA stated that the "Circuit Court gave numerous prompt curative instructions (‘the State submits’), struck the DPA's statement that ‘She told you the truth’ and instructed the jury to ‘disregard that part of the argument.’ " The ICA also noted that the jury instructions informed the jury that the lawyers' statements or arguments were not evidence. Finally, the ICA concluded that the use of the word "lie" by the DPA during closing argument was not misconduct at the time of trial, as State v. Austin, 143 Hawai‘i 18, 422 P.3d 18 (2018), was decided after the trial in this case and had created a new rule, and therefore it should be given only prospective application.
Although Salavea's counsel failed to object to the DPA's statements at trial, the ICA reviewed the allegations of prosecutorial misconduct under the plain error doctrine.
In Austin, this court held that prosecutors were prohibited from using the word "lie" or its derivatives when discussing the credibility of a defendant or witness's testimony during closing argument. Austin, 143 Hawai‘i at 56, 422 P.3d at 56.
Second, the ICA reviewed Salavea's contention that the DPA improperly shifted the burden of proof by arguing there "was no evidence by Defendant why is it that [the CW] would [tell this story]." The ICA concluded that the DPA had not improperly shifted the burden of proof but merely argued that the CW's credibility had not been impeached by any evidence of bias or motive for untruthfulness. Further, the ICA stated, the jury instructions informed the jury that Salavea had no duty or obligation to call any witnesses or produce any evidence.
Third, the ICA considered whether it was improper for the DPA to argue that Salavea had lied simply because she was the defendant in a criminal case. The ICA acknowledged that this court, in State v. Basham, had found that it is improper for a prosecutor in summation to make generic arguments regarding credibility based solely upon the status of a defendant. (Citing State v. Basham, 132 Hawai‘i 97, 319 P.3d 1105 (2014) ). The ICA found that the DPA in this case did not violate the holding in Basham because the DPA "did not make a generic tailoring argument" and the comments were harmless beyond a reasonable doubt because the DPA also described how the evidence adduced at trial made the CW's testimony more credible than that of Salavea.
Lastly, the ICA addressed Salavea's contention that the DPA committed misconduct by accusing defense counsel of improperly influencing the jury during closing argument. The ICA concluded that the DPA was merely reminding the jury about the court's instruction that it should not allow pity for the defendant or prejudice against the defendant to influence its determination in response to what could reasonably have been interpreted as defense counsel's attempt to have the jury take pity on Salavea. Thus, the ICA held that the DPA's comments about defense counsel's conduct were proper.
The ICA also considered and rejected Salavea's contention that the evidence adduced at trial was insufficient to support her conviction.
The ICA accordingly affirmed the circuit court's judgment.
III. STANDARDS OF REVIEW
A. Ineffective Assistance of Counsel
When a defendant first raises the issue of ineffective assistance of counsel on direct appeal, the appellate court may consider the merits of the appeal de novo if the record is "sufficiently developed to determine whether there has been ineffective assistance of counsel[.]" State v. Silva, 75 Haw. 419, 439, 864 P.2d 583, 592 (1993).
B. Prosecutorial Misconduct
A defendant's contention on direct appeal that prosecutorial misconduct resulted in the denial of the defendant's right to a fair trial is a question of constitutional law, which we review de novo. State v. Underwood, 142 Hawai‘i 317, 325, 418 P.3d 658, 666 (2018).
C. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, evidence adduced in the trial court must be considered in the strongest light for the prosecution. State v. Kalaola, 124 Hawai‘i 43, 49, 237 P.3d 1109, 1115 (2010). "The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact." Id. (quoting State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998) ).
IV. DISCUSSION
A. The Assistance of Salavea's Trial Counsel Was Ineffective.
Article I, section 14 of the Hawai‘i Constitution and the Sixth Amendment to the United States Constitution provide defendants in a criminal proceeding with the right to the effective assistance of counsel at every critical stage of the prosecution. State v. Pitts, 131 Hawai‘i 537, 541, 319 P.3d 456, 460 (2014). Violation of an accused's constitutional right to effective assistance of counsel warrants the irrebuttable presumption of prejudice. State v. Antone, 62 Haw. 346, 349, 615 P.2d 101, 105 (1980). A conviction will be vacated, therefore, if the defendant was denied effective assistance of counsel at trial. State v. Aplaca, 74 Haw. 54, 73, 837 P.2d 1298, 1308 (1992).
The standard for determining the adequacy of counsel's representation is whether, when viewed as a whole, the assistance provided is "within the range of competence demanded of attorneys in criminal cases." State v. Cordeiro, 99 Hawai‘i 390, 405, 56 P.3d 692, 707 (2002). First, a defendant must show that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence. Antone, 62 Haw. at 348, 615 P.2d at 104. Second, the defendant must establish that these errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. Id. at 348-49, 615 P.2d at 104 ; State v. DeLeon, 131 Hawai‘i 463, 478-79, 319 P.3d 382, 397-98 (2014).
The second prong of this test is satisfied if the defendant shows a possible impairment of a potentially meritorious defense. DeLeon, 131 Hawai‘i at 479, 319 P.3d at 398. The defendant does not need to show the impairment was probable nor prove that the defendant suffered actual prejudice. Id.; Briones v. State, 74 Haw. 442, 465, 848 P.2d 966, 977 (1993). Specific actions or omissions that are alleged to be erroneous but that had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny. State v. Pacheco, 96 Hawai‘i 83, 93, 26 P.3d 572, 582 (2001). If, however, the alleged error or omission had no obvious basis for benefitting the case and resulted in the withdrawal or impairment of a potentially meritorious defense, then the assistance of defendant's counsel was constitutionally inadequate. State v. Smith, 68 Haw. 304, 309-11, 712 P.2d 496, 500-01 (1986).
It is noted, however, that where "trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases, the right to effective assistance of counsel may be denied." Antone, 62 Haw. at 352, 615 P.2d at 106.
Salavea alleges that the assistance of her appointed trial counsel was ineffective because counsel failed to adduce evidence of the CW's drug use at the time of the alleged crime. Before trial, Salavea's counsel had filed a notice of intent stating that the defense would adduce evidence at trial that the CW was in the process of using methamphetamine at the time of the alleged offense. Salavea's Notice indicated that the CW's drug use was relevant because it undermined the reliability of her perception and memory of the event. Additionally, at the pretrial hearing held on the day trial commenced, defense counsel indicated an intention to adduce evidence of the CW's drug use at the time of the incident.
At trial, during her direct examination, Salavea testified to her account of what transpired at the CW's residence on the day of the incident. As she finished explaining what occurred in the CW's apartment, defense counsel asked Salavea whether "anything else occurr[ed] before you left?" Salavea responded that "she told me not to take her bag 'cause she was going to use it, so I told her that I wanted to use it and she can come to my house and get it when she's not out of it." (Emphasis added.) Defense counsel then asked Salavea "did she seem alert on that occasion when you said ‘when she's not out of it?’ "
This question drew an objection from the DPA, who stated the objection was based on hearsay and was directed to both the question and Salavea's last answer. The court sustained the State's objection and struck everything after "she told me" in Salavea's previous answer. Defense counsel did not repeat the question about whether the CW seemed alert on that occasion or ask Salavea to explain what she meant by "when she's not out of it," nor did counsel make any other attempts to elicit evidence that the CW was using or under the influence of methamphetamine at the time of the incident.
The full stricken statement was as follows: "Well, she told me not to take her bag 'cause she was going to use it, so I told her that I wanted to use it and she can come to my house and get it when she's not out of it."
It is clear that defense counsel was pursuing elicitation of the CW's use of methamphetamine during the incident but appears to have been confounded by the State's hearsay objection. Defense counsel did not then rephrase the question in a way that would not elicit hearsay and entirely dropped this line of inquiry. The evidence of the CW's use of methamphetamine at the time of the incident, however, clearly could have been elicited without the use of hearsay by simply asking Salavea to state what she saw in the immediate area of the CW, to describe the CW's appearance and physical actions, and to recount whether the CW was able to converse or think coherently. None of these questions were asked. The ability to ask basic questions of this nature is obviously "within the range of competence demanded of attorneys in criminal cases." Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707.
We also note that although the court sustained the DPA's objection on the basis of hearsay, the statements made by the CW and Salavea regarding the taking of the bag were not hearsay because they had independent legal significance. State v. Villena, 140 Hawai‘i 370, 378, 400 P.3d 571, 579 (2017) ("It is well-settled that statements of independent legal significance are not hearsay."). The statements were directly relevant to whether Salavea believed that she had permission to take the bag, and therefore they had legal significance independent from the truth of the matter asserted. See Island Directory Co. v. Iva's Kinimaka Enters., Inc., 10 Haw. App. 15, 21-22, 859 P.2d 935, 939 (1993) (holding that statements that constitute the offer, acceptance, or terms of a contract are not hearsay because the making of such statements are in themselves relevant). Counsel's failure to appropriately respond to the DPA's objection regarding this critical verbal exchange between the CW and Salavea further demonstrates that the legal assistance provided by defense counsel was not within the range of competence required of attorneys in criminal cases.
In its review of Salavea's contention that her counsel provided ineffective assistance, the ICA concluded that defense counsel made a strategic decision not to inquire about the CW's drug use at the time of the incident to avoid opening the door to evidence of Salavea's past drug use. The dissent similarly concludes that evidence of the CW's drug use at the time of the incident would have opened the door to Salavea's history of drug use. Dissent at 147 Hawai‘i at 597, 465 P.3d at 1044. The "opening the door" doctrine, which has never been adopted in this jurisdiction, provides that when one party introduces inadmissible evidence, the opposing party may respond by introducing inadmissible evidence on the same issue. State v. Lavoie, 145 Hawai‘i 409, 422-24, 453 P.3d 229, 242-44 (2019). Here, the circuit court had ruled that evidence of drug use at the time of the incident, by either party, was admissible. Thus, evidence of drug use at the time of the incident could not have opened the door to evidence of either party's history of drug use. See State v. Fukusaku, 85 Hawai‘i 462, 497, 946 P.2d 32, 67 (1997) ("[E]ven if we were to adopt the doctrine of curative admissibility, it would not be applicable to the present case."). As the State maintained at the pretrial hearing, "whether [the CW] was using drugs at the time of the incident [is] a separate issue" from the CW's and Salavea's past drug use. The dissent also theorizes that counsel made a tactical decision to terminate the inquiry into the CW's drug use at the time of the incident because counsel determined that the evidence had "negligible value" and was "not worth the risk." Dissent at 147 Hawai‘i at 597, 465 P.3d at 1044. This is refuted by Salavea's Notice, defense counsel's representation on the day of trial that counsel would adduce the evidence of drug use at the time of the incident, counsel's actual attempt to adduce the evidence that drew the State's hearsay objection, and the universal recognition of the importance of such evidence. See Addison M. Bowman, Hawaii Rules of Evidence Manual § 611-2[4][B], at 6-75 (2018-2019 ed.) ("Ability to perceive and remember a relevant event are the ingredients of a witness' personal knowledge, which is the basic condition of testimonial competency."). Indeed, Salavea's prior counsel, the Office of the Public Defender, considered the CW's substance abuse so significant to Salavea's defense that counsel's declaration to the court stated that counsel was ethically obligated to raise the evidence during the trial. This ethical obligation required the public defender's office to withdraw as Salavea's counsel because of its ongoing representation of the CW in another matter.
Because evidence of drug use at the time of the incident was admissible, like the evidence discussed in Lavoie and Fukusaku, the "opening the door" doctrine was never applicable to this case. Accordingly, for the same reasons stated in Lavoie, this case does not require us to consider whether the doctrine should be adopted in this jurisdiction. Lavoie, 145 Hawai‘i at 424 n. 29, 453 P.3d at 244 n.29.
The dissent describes the State's Notice as being a response to Salavea's Notice, implying the notices were filed contemporaneously. Dissent at 147 Hawai‘i at 596–97, 465 P.3d at 1043–44 ("When Salavea noticed her intention ... the State filed a Notice[.]"). Salavea's Notice was filed on June 22, 2015, and the State's Notice was filed over four months later on November 13, 2015. Indeed, the DPA stated that the issue of drug use at the time of the incident was "a separate issue" from the evidence identified in the State's Notice and represented to the court that drug use at the time of the incident was not the subject of the State's Notice.
Moreover, Salavea was entitled to cross-examine the CW as to her use of drugs at or near the time of the incident to the extent that it affected her ability to accurately perceive or recall what had occurred. State v. Calara, 132 Hawai‘i 391, 402, 322 P.3d 931, 942 (2014) ("[A] defendant is entitled to cross-examine a witness concerning the witness's drug use and addiction at or near the time of the incident to the extent that it affected [the witness's] perception or recollection of the alleged event[.]" (second alteration in original) (internal quotation marks omitted)); State v. Sabog, 108 Hawai‘i 102, 111, 117 P.3d 834, 843 (App. 2005) ("For purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies[.]" (quoting State v. Osby, 246 Kan. 621, 793 P.2d 243, 247 (1990) )).
The dissent further argues that defense counsel made a tactical decision to terminate the inquiry because counsel was unable to complete it without eliciting testimony about prior drug use. Dissent at 147 Hawai‘i at 597–98, 465 P.3d at 1044–45. This inability is precisely what illustrates the ineffectiveness of Salavea's trial counsel. As with the elicited "hearsay," counsel could have asked simple questions about what Salavea observed in the CW's immediate area, the CW's appearance and physical actions, and whether the CW was able to converse or think coherently. Such testimony would not have opened the door to Salavea's prior drug use. It is self-evident that the ability to ask basic questions of this nature is "within the range of competence demanded of attorneys in criminal cases." Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707. Thus, contrary to the conclusions of the ICA and the dissent, counsel's failure to adduce the evidence of drug use was not a strategic decision because it did not have any tactical basis for benefitting Salavea's case. Smith, 68 Haw. at 309-11, 712 P.2d at 500-01 (concluding that defense counsel's questioning did not have an obvious basis for benefitting the defendant's case). In order for the assistance of counsel to be constitutionally inadequate, the omission or error must result in the substantial impairment or withdrawal of a potentially meritorious defense. Aplaca, 74 Haw. at 67, 837 P.2d at 1305. In Aplaca, we considered whether defense counsel's failure to investigate potential witnesses was an omission that reflected counsel's lack of skill, judgment, or diligence and whether the omission substantially impaired a potentially meritorious defense. Id. at 66-68, 837 P.2d at 1305-06. In concluding that counsel's omission did have this result, we highlighted the fact that the outcome of the case depended on the credibility of the defendant and the complaining witness. Id. at 72, 837 P.2d at 1308. We noted that "if trial counsel had reviewed the subpoenaed materials and interviewed witnesses ... he could have produced testimony that would have indicated that [the complaining witness] was not a truthful person." Id. at 73, 837 P.2d at 1308. Although the exact effect of the prospective witnesses on the trial court's assessment of the complaining witness and the defendant's credibility could not be predicted, this court stated in its decision that "we firmly believe that such testimony could have had a direct bearing on the ultimate outcome of the case." Id. The Aplaca court thus concluded that trial counsel's error resulted in the substantial impairment of a potentially meritorious defense and the denial of the defendant's right to the effective assistance of counsel. Id.; accord State v. Silva, 75 Haw. 419, 442-43, 864 P.2d 583, 594 (1993) (holding that the failure to subpoena a witness that "could have significantly bolstered Silva's version of the incident" resulted in substantial impairment of defense); State v. Wakisaka, 102 Hawai‘i 504, 517, 78 P.3d 317, 330 (2003) (determining that defense counsel's line of questioning would not have benefitted the defense and that it reflected a lack of skill or judgment).
The dissent makes the strained and incongruous contention that defense counsel's failure to adduce evidence of drug use at the time of the incident in fact benefitted Salavea's defense because Salavea's testimony would have been "in complete contradiction to the testimony of several witnesses." Dissent at 147 Hawai‘i at 597, 465 P.3d at 1044. The dissent points to the CW's mother's statement that the CW was "speak[ing] okay" when she returned to the apartment and Pavao's statement that the CW "looked normal" when the CW reported the incident around 7:00 p.m. that evening. Dissent at 147 Hawai‘i at 597, 465 P.3d at 1044. Apparently, according to the dissent, a single statement that someone is "speaking okay" refutes methamphetamine use or being under its influence during the incident, as does Pavao's observation that the CW "looked normal" several hours later. The dissent's pure speculation provides no basis to conclude that defense counsel's failure to adduce this evidence provided any tactical benefit to the defense, let alone a benefit that is so obvious that it precludes our review of this alleged error, which is what our law requires. Briones, 74 Haw. at 462-63, 848 P.2d at 976 ("[A]ctions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny." (emphasis added and omitted)).
The dissent argues that the holding in Aplaca is inapposite because other evidence adduced at trial corroborated components of the CW's testimony. Dissent at 147 Hawai‘i at 599, 465 P.3d at 1046. However, none of the other evidence went to the critical issues in this case: what transpired in the apartment and Salavea's subjective intent with regard to the backpack. Indeed, the dissent acknowledges that the primary issue was "Salavea's own subjective intent." Dissent at 147 Hawai‘i at 598–99, 465 P.3d at 1045–46.
In this case, Salavea's defense depended on the credibility of Salavea and the CW. Only Salavea and the CW testified to what occurred in the CW's apartment. The testimony of the other witnesses called by the State was primarily used to corroborate other aspects of the CW's testimony. Additionally, defense counsel's error was a failure to adduce evidence that the CW was using methamphetamine at the time when the offense allegedly occurred, which certainly may have significantly affected the reliability of the CW's account. Calara, 132 Hawai‘i at 402, 322 P.3d at 942 (holding that drug use and addiction at or near the time of the incident is admissible to impeach the witness's perception or recollection of events); see also Sabog, 108 Hawai‘i at 111, 117 P.3d at 843.
The dissent contends that the CW's credibility was immaterial to the jury's verdict because Salavea's own evidence "incriminated her." Dissent at 147 Hawai‘i at 599, 465 P.3d at 1046. This is incorrect. Salavea testified that she only intended to borrow the CW's property, and although she knew the CW had told her not to take the backpack, she believed that it was permissible for her to borrow it because this type of borrowing was within the norms of their friendship.
In support of the assertion that the CW's testimony was immaterial to the jury's determination, the dissent misconstrues Salavea's testimony at trial to reach the conclusion that Salavea effectively confessed to the crime on the stand. Dissent at 147 Hawai‘i at 598–99, 465 P.3d at 1045–46. The dissent cites the exchange during Salavea's cross-examination in which the prosecutor questioned Salavea about her intent to return the bag. Dissent at 147 Hawai‘i at 598 n.7, 465 P.3d at 1045 n.7. During that exchange, the DPA asked Salavea about her statement that the CW had told her not to take the bag, and Salavea explained that they were mutual friends and had exchanged items in the past. The DPA asked Salavea whether she thought it was okay to take the bag, even though the CW had told her not to, because Salavea had taken items from the CW without permission in the past. Salavea responded that the CW was there at her apartment when she borrowed the bag, clearly implying that the CW would have spoken up if Salavea's borrowing of the backpack were not permitted. The DPA then asked Salavea whether it was okay to take the bag without permission, and Salavea acknowledged that it was not okay to take the bag after the CW told her that she wanted to use it. The DPA asked Salavea, "So it was a theft?" and Salavea said, "Yeah."
The DPA's question misstated Salavea's prior testimony. Salavea had testified on direct examination that she had once borrowed a backpack from the CW's residence after she called the CW and received permission.
Salavea's agreement on cross-examination with the prosecutor's formulation of "theft" is plainly not a confession to the felony offense of burglary in the first degree or the crime of theft. Salavea's acknowledgement during cross-examination that it was wrong to take the CW's backpack without express permission is consistent with her testimony that she believed it was permissible at the time of the incident. Moreover, the dissent's contention disregards Salavea's testimony that she intended only to borrow the bag. See State v. Kahinu, 53 Haw. 646, 648, 500 P.2d 747, 750 (1972) (vacating the defendant's burglary conviction because the evidence did not establish "the requisite element of intent to commit larceny or any felony" as a matter of law (emphasis added)).
The dissent's conclusion that the CW's testimony was immaterial relies on the assertion that Salavea testified that she knew "on the day of the incident" that it was wrong to take the bag and that it "amounted to theft." Dissent at 147 Hawai‘i at 598–99, 465 P.3d at 1045–46. As discussed, in light of the entirety of Salavea's testimony, the jury could have found that a reasonable doubt existed as to whether Salavea had the subjective intent to steal the CW's property at the time it was taken, despite Salavea's response to the DPA's formulation.
Salavea and the CW had been close friends for six years to the extent the CW was the godmother to one of Salavea's children and she had been the maid of honor at Salavea's wedding. Both the CW and Salavea testified that they occasionally exchanged items or borrowed from one another. Salavea's adoption of the DPA's formulation of "theft" did not prevent the jury from concluding that there was reasonable doubt as to whether Salavea subjectively intended to steal the CW's property, even though she admitted that she took the backpack without express permission. There was substantial evidence before the jury about the nature of their relationship and their history of exchanging personal possessions. The evidence before the jury permitted the inference that Salavea did not intend to steal the backpack at the time she took it and that she intended to return it. The dissent's assertion that Salavea's own testimony incriminated her to such a degree that the CW's testimony was immaterial to the jury's determination is without merit.
The dissent's contention demonstrates why attorneys are prohibited from eliciting legal conclusions from witnesses. See Samson v. Nahulu, 136 Hawai‘i 415, 429, 363 P.3d 263, 277 (2015) (citing HRE Rule 704 and stating that a witness may not give opinions on questions of law as that would amount to legal conclusions). It is incorrect for the dissent to assert that Salavea admitted that she had the subjective intent requisite to theft, a legal conclusion, solely because Salavea, a layperson, accepted the DPA's assertion that taking property without express permission is "theft." Dissent at 147 Hawai‘i at 603–04, 465 P.3d at 1050–51. Salavea's acceptance of the DPA's proffered definition of "theft" was not an admission that she had the subjective intent requisite to the actual crime of theft.
It is also noted that the State's closing argument focused on the credibility of the competing narratives of the incident, and the DPA repeatedly argued that the CW's testimony was more credible than Salavea's.
Unquestionably, the most critical evidence in this case contradicting Salavea's account of the incident was the testimony of the CW. If defense counsel had adduced evidence that caused the jury doubt or hesitancy regarding the CW's perception or recollection of the incident, the jury may have discredited the CW's account. This evidence went to the heart of Salavea's defense, which turned on the credibility of the CW's or Salavea's version of the events. Ultimately, as in Aplaca, "the outcome of the case depended on the credibility" of the CW and Salavea. 74 Haw. at 72, 837 P.2d at 1308 ; accord Silva, 75 Haw. at 442-43, 864 P.2d at 594.
Because the CW's testimony was critical to the State's case, we are left with the firm belief that the failure of Salavea's counsel to elicit testimony that the CW was using or under the influence of methamphetamine at the time of the alleged offense resulted in the possible impairment or withdrawal of a potentially meritorious defense. Wakisaka, 102 Hawai‘i at 516, 78 P.3d at 329 ("[Defendant] need only show a possible impairment of a potentially meritorious defense, not probable impairment or actual prejudice."). Defense counsel's failure to adduce the evidence of the CW's drug use at the time of the incident did not have an obvious tactical basis for benefitting Salavea's case. This error demonstrated counsel's lack of skill and judgment, and it resulted in the possible impairment of a potentially meritorious defense. Counsel's representation, when viewed as a whole, was not within the range of competence "demanded of attorneys in criminal cases," and thus Salavea was denied her right to the effective assistance of counsel. Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707.
The dissent appears to contend that a single "failure to adduce testimony at trial" can never render counsel's assistance ineffective. Dissent at 147 Hawai‘i at 601, 465 P.3d at 1048. The relevant inquiry is not the number of errors defense counsel makes, but whether counsel's error possibly impaired a potentially meritorious defense. This court held in Aplaca that counsel's failure to investigate potential witnesses and review discovery materials prevented relevant impeachment testimony from being adduced at trial, which possibly impaired a potentially meritorious defense, and we therefore concluded that counsel's assistance was ineffective. 74 Haw. at 72-73, 837 P.2d at 1307-08. This court further held that defense counsel made an error that reflected counsel's lack of skill and judgment specifically because of a failure to overcome an objection to testimony at trial. Id. at 71-72, 837 P.2d at 1307 ("[W]hen Aplaca's trial counsel called Captain Watkins as a witness, the State objected and requested an offer of proof. Trial counsel's failure to make an offer of proof further demonstrated his lack of skill and judgment." (emphasis added)).
Here, defense counsel's failure to adduce the evidence impeaching the CW's credibility had no tactical basis for benefitting Salavea's defense, let alone an obvious one. Just as the defense attorney's failure in Aplaca to make an offer of proof had no tactical basis, here defense counsel's failure to overcome the hearsay objection was obviously not a tactical decision, it provided no tactical benefit to Salavea's defense, and it possibly impaired a potentially meritorious defense.
B. Salavea's Allegations of Prosecutorial Misconduct.
Salavea also contends that the prosecutor made multiple statements during closing argument that constituted prosecutorial misconduct. None of these statements were objected to by the defense, although the circuit court sua sponte interjected in several instances. In State v. Smith, after concluding that there were errors reflecting defense counsel's lack of skill or judgment and that the errors substantially impaired a potential meritorious defense, we stated "there [was] more in the record to support the claim that counsel's performance at trial was not within the range of competence expected of Hawaii lawyers in criminal cases." 68 Haw. at 312-13, 712 P.2d at 502. Similarly, our review in this case of the contentions of prosecutorial misconduct, which were not subject to objection, bolsters the conclusion that the assistance provided by Salavea's trial counsel, when viewed as a whole, was not within the range of competence demanded of attorneys in criminal cases. Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707. Additionally, we consider the assertions of prosecutorial misconduct to address the ICA's interpretation of applicable precedent and to provide guidance in the event these matters arise during subsequent proceedings. State v. Basham, 132 Hawai‘i 97, 112, 319 P.3d 1105, 1120 (2014) ("In order to provide guidance to the circuit court and the parties on remand, we address Basham's remaining claims of prosecutorial misconduct."); Wakisaka, 102 Hawai‘i at 518, 78 P.3d at 331 ("Although the [determination of prosecutorial misconduct and ineffective assistance of counsel] are dispositive of this case, we address the court's exclusion of much of [the expert's] proffered testimony in order to provide some guidance on retrial.").
When reviewing allegations of prosecutorial misconduct, the following factors are considered: (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. State v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999). Salavea submits that there are four separate bases to conclude that the State committed prosecutorial misconduct during closing argument.
1. Expression of Personal Opinion
Salavea contends that the prosecuting attorney improperly offered a personal opinion that the CW was a credible witness and that Salavea was not credible. During closing argument, a prosecutor is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence. State v. Underwood, 142 Hawai‘i 317, 326, 418 P.3d 658, 667 (2018). But it is "well-established under Hawai‘i case law that prosecutors are bound to refrain from expressing their personal views as to a defendant's guilt or the credibility of witnesses." Basham, 132 Hawai‘i at 115, 319 P.3d at 1123 (internal quotation marks omitted); see also Cordeiro, 99 Hawai‘i at 424-25, 56 P.3d at 726-27 ; State v. Clark, 83 Hawai‘i 289, 304, 926 P.2d 194, 209 (1996) ; State v. Marsh, 68 Haw. 659, 660-61, 728 P.2d 1301, 1302 (1986). Prosecutors may, however, cite to specific facts or evidence indicating the lack of trustworthiness of the witness or defendant when discussing a witness or defendant's testimony during summation. State v. Walsh, 125 Hawai‘i 271, 295, 260 P.3d 350, 374 (2011) (stating that the "prosecution is free to refer to the specific inconsistencies and contradictions in a defendant's testimony or with other evidence"). A statement about a witness's credibility that is made without reference to the evidence or facts supporting the assertion amounts to an expression of personal opinion. Basham, 132 Hawai‘i at 118, 319 P.3d at 1126 (noting that the prosecutor's argument that the defendant had "no reason to tell you the truth" was improper because it was not based on the evidence or a reasonable inference drawn from the evidence).
It is noted, however, that a statement may improperly imply a personal opinion or special knowledge even if specific facts or evidence are invoked. See Am. Bar Ass'n, Criminal Justice Standards for the Prosecution Function, Standard 3-6.8(b) (4th ed. 2017) ("The prosecutor should not argue in terms of counsel's personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.").
This principle is based on the rationale that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate an attorney from the cause being argued. Basham, 132 Hawai‘i at 115, 319 P.3d at 1123. Further, a personal opinion as to the veracity of a witness's testimony impermissibly usurps the jury's role as the assessor of witness credibility. State v. Austin, 143 Hawai‘i 18, 52, 422 P.3d 18, 52 (2018). Conclusory opinions regarding a witness's credibility are inadmissible because the jury is fully capable of making the connections to the facts of the particular case before them and drawing inferences and conclusions therefrom. Id.
Salavea identifies the following statements as improper expressions of personal opinion as to the credibility of the CW:
1) "[The CW] told you the truth."
2) "[The CW]'s testimony was credible."
3) "[The CW] told you and she was very frank with you[.]"
4) "[The CW] was very forthright, she was very forthright about how she felt. And she also told you frankly that they were close friends."
5) "She was also very frank and forthright how she described what happened to her when she discovered things were missing."
6) "[The CW] told you the truth."
Additionally, Salavea contends that statements such as the following were improper expressions of personal opinion as to Salavea's credibility:
1) "Defendant's story that she had permission to go in and she had somehow thought it was okay and that [the CW] cooperated with her and [the CW] let her do all of that is not credible. It's not credible, it's a lie because it doesn't make any sense."
2) "[T]he whole story by Defendant that the fob was lost by [the CW] on March 6th does not hold, does not hold up. That's a lie, and from there, it follows that she was concealing the fob, she was deliberately holding on to that fob secretly so she could go in her own time at her own convenience and take from [the CW]."
3) "The records show that [the CW] got her replacement fob on June 27th. That directly contradicts Defendant's
story that [the CW] lost it in the car, and from there, everything crumbles, everything the Defendant tells you is not true."
4) "It's a Burglary in the First Degree because Defendant, by lying about how the fob situation went up ... went there specifically with an intent to commit the crime[.]"
5) "Cari Salavea is not a truthful witness."
(Emphases added.)
Our review of the DPA's closing argument discloses that at least two of these statements bolstered the CW's credibility without any reference to the evidence supporting the assertion. Similarly, the DPA attacked Salavea's credibility at least twice without prior reference to the evidence. The DPA also repeatedly asserted that Salavea had lied, a statement this court has found to be such a strong expression that it necessarily reflects the personal opinion of the speaker. Austin, 143 Hawai‘i at 56, 422 P.3d at 56 ; see also Basham, 132 Hawai‘i at 113, 319 P.3d at 1121 (citing Domingo-Gomez v. People, 125 P.3d 1043, 1050 (Colo. 2005) ). These assertions about the credibility of Salavea and the CW were not directly linked to the evidence and therefore amounted to expressions of personal opinion. Basham, 132 Hawai‘i at 118, 319 P.3d at 1126 ; Walsh, 125 Hawai‘i at 295, 260 P.3d at 374.
The first two statements, in which the DPA stated that the CW told the truth and her testimony was credible, were made at the beginning of closing argument before the DPA referenced any of the evidence adduced at trial. Similarly, near the end of rebuttal, the DPA again asserted that the CW told the jury the truth without reference to the evidence. This caused the court, for the fourth time, to sua sponte interject, "Well, the State submits." The prosecutor then revised the statement: "The State submits she told you the truth." The court then struck the statement and instructed the jury to disregard it. These statements were clear expressions of the DPA's personal opinion because they did not reference the evidence supporting the assertion. We do not address the propriety of the other statements Salavea identifies. The dissent does not contest that the DPA failed to reference the evidence supporting these assertions but argues nonetheless that they were appropriate because they were "rooted in the context of evidence." Dissent at 147 Hawai‘i at 603, 465 P.3d at 1050. This explanation does not address the underlying misconduct of the DPA expressing an improper personal opinion. Basham, 132 Hawai‘i at 115-16, 319 P.3d at 1123-24.
The first statement that Salavea's version of the events was not credible and was a lie was made prior to any reference to the evidence from which this inference could be drawn. Likewise in the fourth statement, the DPA asserted that Salavea had lied about how she got the CW's fob before referencing the relevant evidence. In total, the DPA, without objection, stated Salavea lied or was lying three times during closing argument. As with the statements regarding the CW, the DPA's statements about Salavea's credibility that were made without reference to the evidence amounted to expressions of the DPA's personal opinion. We do not consider whether the DPA's other assertions about Salavea's credibility were appropriate.
The impropriety of the DPA's statements is underscored by the circuit court's multiple interjections during the DPA's closing argument.
With respect to the DPA's use of the word "lie" during closing argument, the ICA observed this court's proscription in Austin of the use of the term "lie" and its derivatives during closing argument created a new rule that applied only on a prospective basis. And therefore, the ICA concluded that it was not misconduct for the DPA to use the term "lie" at the time of Salavea's trial. The dissent also appears to conclude that the DPA could not have committed misconduct by asserting that Salavea lied because Salavea's trial took place before our decision in Austin. Dissent at 147 Hawai‘i at 603, 465 P.3d at 1050. While it is correct that our proscription of the word "lie" was prospective, it does not follow that it was appropriate to use the word "lie" at the time of Austin or Salavea's trial. Indeed, in Austin, this court found that the prosecutor's use of the term "lie" during Austin's trial was improper under applicable precedent. Austin, 143 Hawai‘i at 51, 422 P.3d at 51 (citing Basham, 132 Hawai‘i at 113, 319 P.3d at 1121 ; State v. Pacheco, 96 Hawai‘i 83, 95, 26 P.3d 572, 584 (2001) ).
Further, this court recognized that such assertions could amount to an expression of a prosecutor's personal opinion long before we proscribed the use of the word "lie" during closing argument. Marsh, 68 Haw. at 660-61, 728 P.2d at 1302-03. In Marsh, this court held that the prosecutor committed misconduct (1) by making the following assertions about the defendant's testimony: "Use your common sense, ladies and gentlemen. That is not true. It's another lie. It's a lie, ladies and gentlemen, an out-and-out lie"; and (2) by arguing as to the alibi witnesses' credibility: "You should entirely disregard their testimony because, if you will remember, every one of them lied on the stand[.]" Id. at 660, 728 P.2d at 1302. Although there was no objection to these assertions, the Marsh court, in light of these and similar statements, noticed plain error and vacated the conviction. Id.
In this case, the manner in which the DPA used the word "lie" implicitly expressed a personal opinion as to the veracity of Salavea's testimony, which has always been improper. Id. at 660-61, 728 P.2d at 1302-03. The mere fact that the DPA was not prohibited from using the term "lie" during closing argument does not mean that misconduct was not committed. The underlying impropriety of expressing a belief that a witness has lied clearly predates our decision in Austin. See Basham, 132 Hawai‘i at 113, 319 P.3d at 1121 ; Clark, 83 Hawai‘i at 304, 926 P.2d at 209 ; Marsh, 68 Haw. at 660-61, 728 P.2d at 1302-03. Thus, the ICA erred in concluding that it was not misconduct for the DPA to use the term "lie" during closing argument at the time of trial in this case, and the dissent similarly errs in reaching the same conclusion. Austin, 143 Hawai‘i at 51, 422 P.3d at 51 ; Basham, 132 Hawai‘i at 113, 319 P.3d at 1121.
The ICA also concluded that the circuit court "gave numerous prompt curative instructions (‘the State submits’)." First, only some of the improper statements received an interjection from the court. Second, the mere statement by the court that "the State submits," and then the DPA repeating that phrase as a preface is insufficient to rectify the improper credibility opinion as the jury is not informed that the initial statement is improper or that it should be disregarded. Cf. State v. Souza, 142 Hawai‘i 390, 403–04, 420 P.3d 321, 334–35 (2018) ("A jury instruction must be specific to the harm resulting from the error to function as a curative, and a general, boilerplate instruction will not serve to eliminate the prejudice." (citing Basham, 132 Hawai‘i at 111, 319 P.3d at 1119 )); State v. Espiritu, 117 Hawai‘i 127, 143, 176 P.3d 885, 901 (2008) (stating that while the court did properly instruct the jury on the elements of the defense, the instruction could not cure the prosecutor's misstatement of the law "where no specific curative instruction relating to the misstatements was given"). Here, the only satisfactory curative instruction given during closing argument was the single instance that the court told the jury to disregard the DPA's stricken statement that the CW told the jury the truth. Thus, the ICA incorrectly concluded that numerous, prompt curative instructions remedied the DPA's improper statements. The dissent's conclusion is flawed for the same reasons. See Dissent at 147 Hawai‘i at 603, 465 P.3d at 1050.
Additionally, the ICA and the dissent reference the general instruction given to the jury that the statements or arguments made by lawyers are not evidence. Dissent at 147 Hawai‘i at 603–04, 465 P.3d at 1050–51. However, this general instruction plainly did not rectify the improper statements of the DPA. As we have stated in a similar context, because "the instruction did not address the problematic nature of the prosecutor's statements" and it was "general in nature and was delivered to the jury along with a large number of other standard instructions before closing arguments began," it failed to serve as a curative measure for the misconduct. Underwood, 142 Hawai‘i at 327-28, 418 P.3d at 668-69 ; see also Smith, 68 Haw. at 312, 712 P.2d at 501 ("Where ... the success of the asserted defense hinged on defendant's credibility, we would be hard put to say instructions from the court probably had the desired curative effect[.]"); Walsh, 125 Hawai‘i at 294, 260 P.3d at 373.
2. Generic Attack on Credibility
Salavea also contends that the DPA committed misconduct during summation by implying that Salavea had lied during her testimony purely because she, as the defendant, had an interest in the outcome. Specifically, the DPA stated that "every Defendant has a lot of interest in the result of the case, and that's natural, but you cannot disregard it. It's still there. There is interest and bias. Defendant has a lot of interest [in] what's at stake."
In Basham, this court held that "a prosecutor may not argue during closing argument that defendants, because they are defendants, have no reason to tell the truth or have the greatest motive to lie." 132 Hawai‘i at 118, 319 P.3d at 1126 (internal quotation marks omitted). In its review of the alleged misconduct in this case, the ICA held that Basham was not controlling because the Basham court cited to, but did not expressly overrule, State v. Apilando, 79 Hawai‘i 128, 900 P.2d 135 (1995). In support of this conclusion, the ICA cited to State v. Magbulos, 141 Hawai‘i 483, 413 P.3d 387 (App. 2018), stating that it had "recently attempted to reconcile this apparent inconsistency" and concluded that Basham did not overrule Apilando and should therefore be read narrowly.
In Apilando, this court held that it was not improper for the prosecutor to argue during closing argument that the defendant had the highest stake in the outcome of the case and therefore had the greatest motive to lie. 79 Hawai‘i at 142, 900 P.2d at 149.
However, in Austin, which predated the ICA decision in this case, this court had already addressed the "apparent inconsistency" between Basham and Apilando and declared our disapproval of the ICA's interpretation in Magbulos. Austin, 43 Hawai‘i at 56 n. 12, 422 P.3d at 56 n. 12. This court specifically stated that our decision in Basham "overrules any prior precedents to the extent they are in conflict, and we express our disapproval of those portions of the Intermediate Court of Appeal's recent opinion in State v. Magbulos that misapprehend and mischaracterize our holding in Basham." Id. Thus, the ICA's reliance on Magbulos in its analysis of this allegation of prosecutorial misconduct did not follow our precedent. We therefore again reaffirm that it is improper for prosecutors to make "generic arguments regarding a defendant's credibility" during summation. Id.
In this case, the ICA also cited its conclusion in Magbulos that our holding in Basham was inconsistent with the Hawai‘i Standard Jury Instructions Criminal (HAWJIC), which provide that the jury may consider a witness's interest in the result of the case when evaluating the weight and credibility of the witness's testimony. Our holding in Basham, however, does not preclude the prosecution from arguing that the evidence adduced at trial shows the defendant has a particularized, non-generic interest in the outcome that affects the credibility of the defendant's testimony. Basham simply prohibits the prosecution from making "generic arguments regarding a defendant's credibility," i.e., arguments that are uncoupled from evidence showing the defendant has a particular interest in the outcome separate from the generic interest shared by all defendants in criminal cases. Thus, contrary to the ICA's conclusion in this case and in Magbulos, Basham is not inconsistent with the standard HAWJIC.
Looking to the "nature of the alleged misconduct," Rogan, 91 Hawai‘i at 412, 984 P.2d at 1238, it is clear that the DPA's statement was improper. The DPA specifically referred to the interest that "every Defendant has ... in the result of the case." (Emphasis added.) By generically referring to every defendant's interest in the outcome, the DPA attacked Salavea's credibility solely because of her status as a defendant. Basham, 132 Hawai‘i at 117, 319 P.3d at 1125 ("[A] prosecutor cannot ask the jury to infer a defendant's lack of credibility based solely on the fact that he or she is a defendant."). Further, the DPA did not reference any evidence adduced at trial that could support an inference that Salavea had a particularized, non-generic interest in the outcome that affected her credibility. Walsh, 125 Hawai‘i at 295, 260 P.3d at 374 (noting that a prosecutor may refer to specific inconsistencies and contradictions in a defendant's testimony or with other evidence). Thus, the ICA erred in concluding that it was not misconduct for the DPA to imply that Salavea lied simply because she was the defendant.
We note that in analyzing the generic nature of the DPA's closing argument, the dissent addresses only the problematic comment that Salavea had "a lot of interest [in] what's at stake" and not the entirety of the DPA's improper statement. Dissent at 147 Hawai‘i at 604, 465 P.3d at 1051.
3. Denigration of Defense Counsel
Salavea also contends that the DPA committed misconduct during closing argument by personally attacking defense counsel and accusing counsel of attempting to manipulate the jury. We again look to the nature of the alleged misconduct to determine whether it was improper. Rogan, 91 Hawai‘i at 412, 984 P.2d at 1238.
A prosecutor engages in misconduct by making comments during closing argument that impermissibly attack the integrity of defense counsel or that denigrate the legal profession in general. State v. Pasene, 144 Hawai‘i 339, 370, 439 P.3d 864, 895 (2019) ; State v. Klinge, 92 Hawai‘i 577, 595, 994 P.2d 509, 527 (2000). This court recently discussed the particular dangers posed by a prosecutor's attacks on defense counsel during closing argument in Underwood. 142 Hawai‘i at 325–27, 418 P.3d at 666–68. We observed that such attacks are extremely problematic because "a jury is apt to attach undue weight to a prosecutor's disparagement of defense counsel." Id. at 327, 418 P.3d at 668. We further stated that accusations of this nature implicate the defendant's right to a fair trial "because it is a ‘strik[e] at the appellant over the shoulders of his counsel in an attempt to prejudice the jury against the appellant.’ " Id. (alteration in original) (quoting Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981) ). Further, attacks on the personal character of defense counsel are improper because they denigrate the legal profession—insinuating that defense counsel's zealous representation of a client amounts to unethical behavior—and undermine the adversarial system. Id. As such, disparagement of defense counsel during closing argument clearly constitutes prosecutorial misconduct. Id.; Klinge, 92 Hawai‘i at 595, 994 P.2d at 527.
Similarly, a disparagement of the defendant that cannot be inferred from the evidence adduced may improperly prejudice the jury and implicate the defendant's right to a fair trial. Basham, 132 Hawai‘i at 113, 319 P.3d at 1121 (noting that it was misconduct to argue that the defendant had lied to the police about being the driver of a vehicle because the defendant had not been charged with any misconduct regarding the vehicle and any evidence that he lied to the police would have been subject to Hawai‘i Rules of Evidence Rule 404(b) as evidence of "other acts").
During the defense's closing argument in this case, the DPA objected to defense counsel's statement that Salavea was in tears at one point during her testimony, contending it was not in evidence and it was a personal statement. The court overruled the objection. Nonetheless, the DPA in rebuttal stated that defense counsel had made an improper argument, asserting to the jury that "Defense Counsel was just ... trying to appeal to your sense of pity ... for Defendant, and that's improper." The DPA's insinuation that defense counsel was trying to mislead the jury by making an improper appeal to the jury's sense of pity was clearly wrong as a lawyer may comment on a witness's appearance and demeanor during their testimony. The ICA concluded that this statement was proper because the DPA "simply reminded the jury about the Circuit Court's instruction in response to what could reasonably have been interpreted as defense counsel's attempt to have the jury take pity on Salavea." The dissent agrees. Dissent at 147 Hawai‘i at 605–06, 465 P.3d at 1052–53. This conclusion does not recognize that the DPA did much more than remind the jury that its decision should not be influenced by pity for the defendant; the DPA told the jury that defense counsel had improperly attempted to influence the jury's decision by appealing to its sense of pity. This accusation was clearly incorrect, as the circuit court recognized when it properly overruled the prosecutor's objection. We reaffirm that attacks on defense counsel, both express and implied, constitute prosecutorial misconduct. Underwood, 142 Hawai‘i at 327, 418 P.3d at 668 ; Klinge, 92 Hawai‘i at 595, 994 P.2d at 527.
The relevant portion of the defense's closing argument is as follows:
[DEFENSE COUNSEL]: If I may leave you with a suggestion of evaluating the evidence in this case, it would be this. You recall that just before our lunch break, [Salavea] went on the witness stand, and the Deputy Prosecutor asked her whether she didn't take the Roxy bag without permission and whether that wasn't indeed theft, and [Salavea] broke down, she was in tears, and that's, I suggest—
[DPA]: Objection, Your Honor. This is not in evidence, and it's personal statement.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And that's because it probably didn't even occur to her that that playful little act might be viewed by the law as a theft. Now, the Government would have you believe that [Salavea], being that type of person, would take all of her friend's valuables, and it's just not borne out by the evidence. Something occurred between these two women, but it wasn't a burglary.
(Emphasis added.)
The dissent asserts that defense counsel in fact did commit misconduct by drawing the jury's attention to Salavea's demeanor, and thus it was perfectly appropriate for the DPA to accuse defense counsel of misconduct during rebuttal. Dissent at 147 Hawai‘i at 605–06, 465 P.3d at 1052–53. The dissent also intimates that the circuit court erred in overruling the DPA's objection. Dissent at 147 Hawai‘i at 605, 465 P.3d at 1052. HAWJIC 3.09 (2014) provides in relevant part as follows: "In evaluating the weight and credibility of a witness's testimony, you may consider the witness's appearance and demeanor [ and] the witness's manner of testifying [.]" (Emphases added.) Thus, defense counsel's comment on Salavea crying during her testimony clearly was not an improper appeal to the emotions of the jury. Therefore, the court properly overruled the DPA's objection.
More importantly, we reject the dissent's contention that misconduct by an attorney during closing argument grants opposing counsel license to accuse the attorney of misconduct on rebuttal. Dissent at 147 Hawai‘i at 605–06, 465 P.3d at 1052–53. The appropriate response to improper argument is an objection, and the disposition of an objection is within the discretion of the trial court, not counsel. The DPA was not permitted to accuse defense counsel of misconduct simply because the DPA disagreed with the court's overruling of the objection, and the dissent's disagreement cannot retroactively sanction the DPA's improper conduct.
The dissent suggests that the DPA's accusation of misconduct was justified because the attack aimed to undermine defense counsel's argument on "the primary issue at trial." Dissent at 147 Hawai‘i at 605, 465 P.3d at 1052. Defense counsel's comment during closing argument was proper as ruled by the trial court. See supra note 33. Additionally, neither the DPA's tactical goals nor the criticality of the subject matter provides acceptable justification for the DPA's improper accusation that defense counsel committed misconduct, as our law makes plainly clear. Pasene, 144 Hawai‘i at 370, 439 P.3d at 895 ; Underwood, 142 Hawai‘i at 327, 418 P.3d at 668 ; Klinge, 92 Hawai‘i at 595, 994 P.2d at 527.
Salavea also contends that the following statement was an improper attempt by the prosecutor to shift the burden of proof to the defense:
[W]hy would [the CW] go through all of this and why would [the CW] go and make up a story if it was not what happened? There was no evidence by Defendant why is it that [the CW] would do it, and there was no evidence from [the CW], even though we pushed her, both of us, that she had any reason to tell this story.
Read in isolation, the statement that there "was no evidence by Defendant why is it that [the CW] would do it" suggests that Salavea was obligated to adduce evidence that the CW's account was not credible. While the preceding and subsequent statements appear to indicate that the prosecutor was attempting to argue that nothing in Salavea's or the CW's testimony suggested that the CW's account was untruthful, the challenged statement improperly suggested that Salavea had the burden of showing why the CW's testimony was not credible.
In summary, we conclude that the DPA made several statements during closing argument that were improper. Because we have already determined that Salavea's conviction must be vacated, we need not consider whether the prosecutorial misconduct in this case would also warrant vacatur of the conviction. However, the multiple clear instances of prosecutorial misconduct during closing argument bolster our conclusion that the assistance of Salavea's trial counsel, when viewed as a whole, was ineffective. Defense counsel did not make a single objection to any of the DPA's improper statements during closing argument, which any competent defense attorney should have done. Smith, 68 Haw. at 312-13, 712 P.2d at 502 (noting that other instances of inadequate performance in the record bolstered the court's conclusion that trial counsel's assistance was ineffective). Additionally, despite several interjections by the court, the defense attorney still did not apprehend the improprieties in the DPA's closing argument and made no objections at all. Clearly, counsel's failure to make objections and move to strike the various instances of misconduct was not within the range of competence demanded of attorneys in criminal cases. V. CONCLUSION
This court has observed that in order to fulfill their duties as advocates and provide effective assistance, lawyers must ensure that their knowledge of relevant case law is up-to-date. Batalona v. State, 142 Hawai‘i 84, 96, 414 P.3d 136, 148 (2018).
Salavea also contends that the evidence adduced at trial was insufficient to support her conviction for burglary in the first degree. Specifically, Salavea argues there was not substantial evidence that she entered the CW's apartment unlawfully or that she had the intent to commit a crime therein at the time of her entry. Although our conclusion that the ineffective assistance of defense counsel requires that Salavea's conviction be vacated, challenges to the sufficiency of the evidence must always be considered on appeal as "the [d]ouble [j]eopardy [c]lause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction." State v. Kalaola, 124 Hawai‘i 43, 59, 237 P.3d 1109, 1125 (2010) (alterations in original) (quoting State v. Malufau, 80 Hawai‘i 126, 132, 906 P.2d 612, 618 (1995) ). In considering Salavea's contention, the evidence is viewed in the light most favorable to the prosecution. Id. at 46 n.2, 237 P.3d at 1112 n.2. Upon review, we conclude that there was substantial evidence that Salavea intended to use the CW's misplaced fob to enter her apartment and take her property without permission. Thus, there was sufficient evidence to support every material element of the offense that underlies Salavea's conviction.
Based on the foregoing, we vacate the ICA's Judgment on Appeal entered on July 9, 2019, and the circuit court's amended judgment. The case is remanded to the circuit court for further proceedings consistent with this opinion.
DISSENTING OPINION BY NAKAYAMA, J. IN WHICH RECKTENWALD, C.J., JOINS
At issue in this case is the conduct of defense counsel and the Deputy Prosecuting Attorney (DPA). I do not agree with the Majority's holdings that Petitioner/Defendant-Appellant Cari Salavea's (Salavea) counsel was ineffective or that the DPA engaged in prosecutorial misconduct.
Salavea's trial counsel made a tactical decision not to adduce evidence of CW's alleged drug use in order to avoid "opening the door" to the presentation of evidence of Salavea's own drug use. Because this decision was clearly tactical and not erroneous, we should not question defense counsel's competence in the first instance.
As to the Majority's conclusion that the DPA's statements during closing arguments amounted to prosecutorial misconduct, when read in context, those statements were supported by and rooted in the evidence adduced at trial and were not improper.
I dissent.
I. BACKGROUND
Salavea was charged with, and eventually convicted of Burglary in the First Degree in violation of Hawai‘i Revised Statutes (HRS) § 708-810(1)(c) (2014).
HRS § 708-810 provides in relevant part:
Burglary in the first degree. (1) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and:
....
(c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.
The Honorable Karen S.S. Ahn presided.
Prior to Salavea's trial, both Salavea and the State noticed their intent to use evidence of past acts. Salavea noticed intent to offer evidence that CW was using methamphetamine at the time of the incident. The State noticed its intention to present evidence of Salavea's: (1) gambling problem; (2) drug use in 2014 and 2015; and (3) theft from Macy's. The circuit court held a pretrial hearing regarding the admissibility of past acts by both CW and Salavea, including drug use on the day of the alleged burglary and in 2014 and 2015. During the hearing, the circuit court stated:
THE COURT: Okay. Use of drugs by anybody, whether it be the Defendant or any witness, other witness, I think is legitimate under the case law because it goes to your ability to perceive and recall. It's up to the jury to decide whether there was an effect or not. So that's going to come in, but it's also a two-way sword, right?
The State contended that CW and Salavea had met at a rehabilitation program and had used drugs together previously, but that these facts were not relevant background to the case. Salavea's counsel countered that CW and Salavea's prior drug use was relevant to Salavea's defense. Salavea's counsel informed the circuit court that Salavea's defense was that on the date of the alleged burglary, "[Salavea] felt bad when she saw [CW] using the drugs and so it occasioned her to do something about it." Salavea's counsel stated that Salavea saw "drugs at the [alleged burglary scene] and activity involving those drugs," but would not confirm what Salavea's testimony would be. Salavea's counsel agreed that she would not "attempt to expand beyond what my girl perceived the situation to be in that room." The following exchange took place:
THE COURT: Okay. So I think the agreement is that the State's case, the State apparently has made a decision it's going to go on that event, and Cross is limited to Direct, okay.
[DEFENSE COUNSEL]: Of course.
THE COURT: And then when you put on your case, then we'll see what we're dealing with.
[DEFENSE COUNSEL]: We can revisit it at that time.
THE COURT: We have to, I think.
[THE STATE]: Judge, I'd also like to point out -- I think I -- there's a portion of why I filed Notice of Intent. If it does come out and it's pretty much irreparable and the jury here hears Defendant's testimony about any kind of allegations of prior drug use or whatever that goes beyond the scope of that event, State should be allowed to question Defendant and bring it up that they were doing it together over that period of time.
THE COURT: Oh, yeah, it's fair Cross. Both of you have a right to fair Cross, and credibility is always, obviously, an issue in addition to what happened that night or that day.
The circuit court next addressed the State's Notice that it intended to adduce, among other things, evidence of Salavea's prior drug use in 2014 and 2015 in the following exchange.
THE COURT: Okay. Defendant's drug use in 2014 and 2015, is that something you still want at this point?
[THE STATE]: Well, yes. If they open the door through bringing up the whole history and everything else, then it will go to -- it will go as follows. The relevance is this. CW was trying to get away from Defendant because she didn't want to gamble anymore, she didn't want to be in jeopardy with her Hope Probation because every time they met, she ended up using, so if Defense brings up the history of drug use and all of that, then State will be, in my position, entitled to expand on that and have basically an explanation why [CW] did not want to have anything to do with the Defendant anymore because it was screwing up her Hope Probation.
THE COURT: Okay. So in other words, if it becomes relevant.
[THE STATE]: Yeah.
THE COURT: Okay, so [Defendant's drug use in 2014 and 2015] is on hold.
....
THE COURT: ... Have we exhausted the 404 matters on the part of Defendant?
Gambling has been not objected to.
Drug use if the door is opened.
(Emphasis added.)
The circuit court clarified that it was granting Salavea's Notice of Intent to present evidence that CW was using methamphetamine in her apartment at the time of the alleged burglary.
1. Trial Testimony
At trial the State called the following witnesses: CW, CW's parents, Detective Tai Nguyen (Detective Nguyen), and Michael Bryant and Ray Pavao, who both worked as security personnel at CW's apartment complex.
i. Bryant's Testimony
Michael Bryant (Bryant) testified that he was the security supervisor at the Moana Pacific, a two-tower residential complex, and its authorized representative and custodian of records. Bryant explained that surveillance cameras record all of the entrances to the buildings and inside the elevators and that the buildings are only accessible through fob access doors. A fob is required to operate the elevator and each residence is allowed up to six fobs. The Moana Pacific has a computer system that records the date, time, and exact location of all fob activity on the property.
A fob permits keyless entry to unlock doors. The fobs at the Moana Pacific are gray and teardrop shaped.
Bryant identified State's Exhibit 9 as a printout of fob usage for a fob assigned to CW for the period of March 1, 2015, to March 31, 2015. Bryant stated that the fob was used on March 27, 2015 at 1:25 p.m., 1:26 p.m., and 1:29 p.m. Bryant testified that CW had purchased another fob on June 27, 2014, but that there was no record that the original fob assigned to CW was ever deactivated. Bryant testified that he reviewed the surveillance footage of the East Tower for March 27, 2015, between 1:18 p.m. and 2:30 p.m. at the request of the Honolulu Police Department (HPD). Bryant identified the video footage from the relevant time period and testified that the footage showed someone using "Elevator 4" to go from the ground floor to the forty-third floor and then to the forty-fifth floor. According to Bryant, the footage also showed someone reentering Elevator 4 on the forty-fifth floor to go to the ground floor. Bryant testified that the footage corresponded with the fob usage records (State's Exhibit 9).
Bryant indicated that the time on the video footage was approximately eight minutes behind, so if the camera's time stamp was 1:18 p.m., the actual time would be 1:26 p.m.
ii. CW's Testimony
CW testified that on March 27, 2015, she lived with her parents and six-year-old daughter at the Moana Pacific. CW explained that she worked as a shift leader setting up for events at the Hawaii Convention Center and that she typically worked from 3:00 p.m. to midnight.
According to CW, she lost her fob for the Moana Pacific in June of 2014. CW purchased a new fob for $50, but did not deactivate the old one because she hoped to find it. CW was not concerned about someone using the fob to access her apartment because it did not identify the Moana Pacific or have any identifying features.
CW described her relationship with Salavea as a friendship that began six years prior. Salavea and CW would occasionally meet and take their children to the pool at the Moana Pacific. According to CW, the two women were close, but CW "did [her] own thing," worked, and "had [her] own life."
When CW and Salavea spent time together without their children, they went gambling in non-public game rooms. CW explained that both she and Salavea had gambling problems, but that CW decided at the beginning of the year to stop gambling.
The last time that CW and Salavea "hung out" together before the date of the alleged burglary was on March 6, 2015, when the two women went out gambling together. CW won that night and shared a "little bit" of her gambling winnings with Salavea, but Salavea had wanted half. According to CW, this was the only time she met with Salavea in 2015. CW also recounted that one day about a week before the day of the incident, Salavea called CW at work and asked to borrow money, but CW refused and hung up. That was the last time that CW heard from Salavea prior to the alleged burglary.
CW testified that the week of March 27, 2015, she was home from work on a "workman's comp [sic]" injury because she had injured her foot at work. On the date of the alleged burglary, CW was at home alone, resting. CW's mother and father had left before 1:30 p.m. and CW's daughter was still at school. CW received a phone call from Salavea, which CW did not answer. Then CW received a text message from Salavea that just said "bitch." CW ignored the message and went to sleep. CW placed her Samsung Galaxy 5 cell phone next to her pillow when she went to sleep that day.
CW testified that when she woke up, her cell phone was gone so she used the house phone to call it. At first, the cell phone rang, but then it went "straight to voicemail." CW used the home phone to call her mother, who was picking up CW's daughter from school, and asked if she had seen CW's cell phone. CW also noticed that her Samsung Galaxy tablet and blue Roxy brand backpack were gone, both of which had been in her bedroom near the bed. CW's backpack contained her wallet, work keys, driver's license, and work ID. CW's wallet contained her federal credit union bank card. CW never recovered any of her missing items.
According to CW, she initially could not understand "how her stuff come up missing when nobody was in my house." CW "finally kind of figured that it might be [Salavea]" because of the missing fob and the "bitch" text message. CW went to the Moana Pacific's security office and asked to see the video surveillance. CW testified that when she saw the security footage, she recognized Salavea.
The State showed CW the video surveillance footage (State's Exhibit 20) and published it. CW identified the loading dock area at the Moana Pacific and explained that the fob access door from the loading dock to the hallway was propped open, as was common if someone was in the process of moving into the building. CW testified that she recognized Salavea on the video by her face, the tattoo on her back, and "the flower that she usually wears in her ear." CW also identified Salavea in the footage entering the elevator on the forty-third floor and exiting on the forty-fifth floor "by the way she walks," the flower, and her demeanor. In the final video, CW identified Salavea entering the elevator while carrying a Roxy backpack.
According to CW, after she viewed the security footage on March 27, 2015, she returned to her apartment and told her parents "what had happened and [that Salavea] had entered the apartment building."
CW testified that her Google wallet card was in the backpack Salavea took. CW explained that, like a prepaid debit card, the card was linked to her bank account and the funds could also be accessed through an application (app) that CW installed on her cell phone. CW testified that anyone in possession of her cell phone with the passcode to unlock her phone could use the app to make in-store purchases or transfer money to other people. According to CW, she had given Salavea her passcode one night when they were out gambling. CW testified that she received an email notification regarding an attempt to transfer $100 from CW's Google wallet to Salavea's email after March 27, 2015. CW also learned of two other Google wallet transactions that she did not make – a 4:00 a.m. purchase at McDonald's and a $100 purchase at Sam's Club. After these transactions, CW cancelled both her Google wallet debit card and the $100 transfer transaction. CW also cancelled her HawaiiUSA bank card the following day.
CW testified that she never gave Salavea permission to enter her home on March 27, 2015, or to take her backpack or other property.
During cross-examination, CW testified that Salavea had occasionally borrowed CW's shoes in the past. Salavea wore a size 6 and CW wore a size 7, so CW seldom borrowed Salavea's shoes. CW testified that she and Salavea never traded clothes and that they were not the same size.
iii. Mother's Testimony
CW's Mother (Mother) testified that she lived at the Moana Pacific with her husband, daughter, and granddaughter. Mother testified that on March 27, 2015, CW was home from work because her foot was sore and she did not feel good. That day, Mother left the apartment to pick up her granddaughter from school and was gone from about 12:00 p.m. to 2:00 p.m. Mother received a phone call from CW on the land line while she was out.
According to Mother, when she returned home, CW told her, "[s]he say her friend call her many times. She no answer the phone. Must be she coming up here get my stuff, so I lose my backpack and my phone." When asked if CW seemed coherent, Mother testified "Yeah, she speak okay." Mother stated that she did not notice anything unusual in the apartment.
iv. Pavao's Testimony
Ray Pavao (Pavao) testified that he was a security guard at Moana Pacific and was on duty on March 27, 2015. Pavao testified that CW reported to Moana Pacific security that someone had possibly entered her apartment and taken property. At CW's request, Pavao showed her the recorded camera footage at about 7:00 p.m. that evening. According to Pavao, CW was worried about her belongings but "look[ed] normal" and explained herself normally. He noticed nothing unusual about CW. Pavao showed CW the same video footage that was later provided to the HPD.
v. Detective Nguyen's Testimony
HPD Detective Nguyen testified that he was assigned to investigate a burglary at the Moana Pacific on March 27, 2015. During the course of his investigation, he obtained and reviewed the March 27, 2015 surveillance footage from the Moana Pacific and he obtained a printout of fob usage for the fob registered to CW. Detective Nguyen testified that the printout showed only three entries for the period of time between 1:00 p.m. and 1:29 p.m. on March 27, 2015, and that there was no other activity for that fob either before or after that.
After watching the video footage, Detective Nguyen confirmed with CW that she recognized the person in the video as Salavea.
vi. Salavea's Testimony
Salavea testified that she and CW were best friends for six years prior to the March 27, 2015 incident. According to Salavea, the two women "hung out every day, and then around 2013, 2014, we kind of did our own thing." Sometimes when CW worked, she loaned her keys to Salavea so that Salavea could take the children to the pool at the Moana Pacific.
Salavea testified that CW called her on March 6, 2015, and that CW said that she had money and wanted to go gambling. Salavea went to go meet her and the two women stayed out all night gambling. According to Salavea, "we both had money" that night. When Salavea was driving home after being out all night, CW called her to say that CW had left her keys in the center console of Salavea's car. Salavea told CW that she "was already on the freeway back to Waipahu ... [so she] wasn't going to turn around" and that Salavea would call her the next time she returned to town. Salavea found CW's keys, a fob and front door key on a black keychain, when she cleaned her car a couple of weeks later. Salavea stated that "[CW] loses her keys all the time."
Salavea testified that she called CW on March 27, 2015, at around 12:00 p.m. and told CW that she would stop by CW's home and drop off the keys. According to Salavea, CW told her that her father was going for his daily walk and that Mother was going to pick up CW's daughter at school, so Salavea could "park in the stall and come upstairs." Salavea's friend was with her in the car and wanted to use the bathroom, so Salavea called CW from the parking stall to ask permission to bring her friend up. CW did not answer, so Salavea texted her "bitch" and went upstairs, leaving her friend in the car. Salavea used CW's keys to go up to the apartment.
Salavea attested that when she entered the apartment, CW was there and the two women talked in CW's room. Salavea returned the keys to CW and then "borrowed" CW's slippers and the Roxy backpack. Salavea stated that she had borrowed CW's footwear and backpacks in the past. Salavea did not stay long because her friend was waiting in the car. Salavea estimated that she was inside for "maybe fifteen minutes," before leaving the Moana Pacific.
The following exchange occurred during the direct examination regarding Salavea's taking of the backpack:
[DEFENSE COUNSEL]: So did anything else occur before you left? You borrowed her sneakers, her backpack.
[SALAVEA]: Well, she told me not to take her bag ‘cause she was going to use it, so I told her that I wanted to use it and she can come to my house and get it when she's not out of it.
[DEFENSE COUNSEL]: And did she seem alert on that occasion when you said "when she's not out of it"?
[THE STATE]: Objection, Your Honor.
[DEFENSE COUNSEL]: I'll rephrase.
[THE STATE]: And I'm also objecting to the last answer.
THE COURT: To the last answer?[ ] There was no answer.
[THE STATE]: The basis is hearsay.
THE COURT: Oh, to the last answer. All right. Well, it is hearsay. I'll strike that last answer by the witness, and the jury will disregard it.
[DEFENSE COUNSEL]: I'm sorry. The portion that her friend said to her?
THE COURT: This thing about "she didn't want me to use it."
[THE STATE]: No, the last portion, the last portion of the answer, what Defendant is saying she told her. It's basically self-serving hearsay that is adduced by Defendant[.]
THE COURT: And I'm striking it as hearsay, the whole answer.
[THE STATE]: No, only starting with "I told her," so when she was not given permission to use the bag, I'm not asking to strike that.
THE COURT: "She told me," everything after that in the last answer is stricken. Jury will disregard it.
[DEFENSE COUNSEL]: Very well.
(Emphasis added.) Salavea explained that the Google debit card is like a debit card that is linked to a bank account, "and that's how we used to transfer money from my husband's Google card to gamble." Salavea testified that "we gambled $2,000 of my husband's money."
On cross-examination, Salavea testified that she had not asked CW for money in the week prior to March 27, 2015, but had asked CW for money on the day of the incident. According to Salavea, when she called CW on March 27, 2015, Salavea had a conversation with CW. Salavea testified that she did not text CW "bitch" because she was upset with her, but because "[w]e call each other bitch."
Though Salavea admitted that CW told her not to take the backpack and that Salavea knew she did not have permission to take it, Salavea testified that she believed it was okay for her to take CW's backpack because Salavea had borrowed things from CW in the past and because CW had other bags. Salavea explained that, in the past, she had borrowed something from CW and then told CW after the fact. However, Salavea then admitted that she knew it was not okay to take the backpack and that it was actually theft in the following exchange:
Q. Because you took this stuff from her before without an express permission, you thought it was okay to take this Roxy backpack now even though she expressly told you don't take it, so it made it okay?
A. She was there. I mean – no.
Q. So it wasn't okay to take it?
A. No, it wasn't.
Q. So it was a theft?
A. Yeah.
Salavea also admitted using CW's fob to access the elevator in CW's building, but stated that she did not use the fob for her initial entry to the building because the door was propped open. Salavea testified that she first exited the elevator on the forty-third floor because she "was on [her] phone, and [she] got off on the wrong floor." Salavea then used the fob again to go from the forty-third to the forty-fifth floor. After staying about ten minutes inside CW's apartment, Salavea used the fob to go down in the elevator.
Salavea denied trying to use CW's Google wallet to obtain money from CW's account after taking the backpack on March 27, 2015.
2. Closing Arguments
During closing arguments, the DPA made the following statements:
[THE STATE]: ... [CW] told you the truth. [CW's] testimony was credible.
THE COURT: Well, the State submits.
[THE STATE]: Thank you.
The State submits that [CW's] testimony is credible because it is corroborated by other evidence, because it makes sense, and because you, as the judges of everybody's demeanor and looking at those factors that are given to you in the jury instructions, can assess for yourself whether it makes sense or not.
Now, Defendant's testimony, on the other hand, State submits to you, is not credible, and why it's not credible? Because it doesn't make sense. When Defendant realized that [CW] was not going to give her the money voluntarily, Defendant used an opportunity of having [CW's] fob to go into [CW's] home and steal and take it on her own and basically to help herself. When [CW] would not give her money voluntarily and refused to give her money, Defendant was upset. She used the fob, she used the opportunity, the chance that she had, to help herself.
Defendant's story that she had permission to go in and she had somehow thought it was okay and that [CW] cooperated with her and [CW] let her do all of that is not credible. It's not credible, it's a lie, because it doesn't make any sense. Defendant had a motive to go and commit a burglary, to burglarize [CW's] home to take the money, and it was two-fold. On the one hand, she needed the money. On the other hand, you heard about all the dynamics and all the background relationship. Her pride was hurt. She did not like the fact that [CW] was not responding to her phone call. She
was upset. In addition to that, she did have [CW's] fob.
What's really significant here -- and this is what you need to focus on and this is how the State submits to you that it's proven that Defendant's story doesn't add up -- is the whole story by Defendant that the fob was lost by [CW] on March 6th does not hold, does not hold up. That's a lie, and from there, it follows that she was concealing the fob, she was deliberately holding on to that fob secretly so she could go in her own time at her own convenience and take from [CW].
[CW] told you and she was very frank with you, she explained in details what happened to her fob. She told you she lost that fob as far as almost a year prior to this incident in March, and that testimony was corroborated by [Pavao.] That testimony was corroborated by the records that she got an additional fob, she got the second fob.
And what's significant, that fob was only used once -- well, three times, but, like, at one incident at 1:23 -- you'll have your exhibit -- 1:25, and then 1:29, which [ ] exactly corresponds to when Defendant went up to the 43rd floor, went up to the 45th floor, and went down. That was the fob that [CW] was not using because Defendant was in possession of it.
What does that mean? That shows you that [CW] told you the truth. She told you she lost the fob and she got one on June 27th. The records show that she got her replacement fob on June 27th. That directly contradicts Defendant's story that [CW] lost it in the car, and from there, everything crumbles, everything the Defendant tells you is not true.
Salavea's counsel made the following statements as part of her closing argument:
[DEFENSE COUNSEL]: This case, in effect, boils down to one woman's account of events as opposed to another woman's account of events. Both of them had a gambling problem. They had different lives, they had different takes on things, but you have to ask yourself who was the most sophisticated, who was more likely to cook up something, to take a position that was sophisticated and complicated.
If I may leave you with a suggestion of evaluating the evidence in this case, it would be this. You recall that just before our lunch break, [Salavea] went on the witness stand, and the Deputy Prosecutor asked her whether she didn't take the Roxy bag without permission and whether that wasn't indeed theft, and [Salavea] broke down, she was in tears, and that's, I suggest –-
[THE STATE]: Objection, Your Honor. This is not in evidence, and it's personal statement.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And that's because it probably didn't even occur to her that that playful little act might be viewed by the law as a theft. Now, the Government would have you believe that [Salavea], being that type of person, would take all of her friend's valuables, and it's just not borne out by the evidence. Something occurred between these two women, but it wasn't a burglary.
Thank you.
Thereafter, in rebuttal, the State argued:
[THE STATE]: Ladies and gentlemen, what Defense Counsel was just doing was trying to appeal to your sense of pity or some kind of sense, you know, for Defendant, and that's improper. You are given an instruction[ ] that you should not be influenced by that.
....
[THE STATE]: .... Judge Ahn did read to you the multiple factors that you may consider in determining whether a person is telling the truth or not.
One of them is the witness’ manner of testifying. That is significant. You saw how [CW] testified. I don't know if calling her sophisticated is kind of an overstatement. That's your judgment entirely. She may not have looked as sophisticated as [Defense Counsel] is claiming, but she was very forthright, she was very forthright about how she felt.
And she also told you frankly that they were close friends. She was disappointed
The circuit court had previously instructed the jury that: "You must not be influenced by pity for the Defendant or by passion or prejudice against the Defendant."
with how their relationship went, but she also did express no bias or no reason or no negativity towards Defendant even though I asked her hard questions. I was kind of asking her, you know, like, how did you feel, what was your, you know, what was your feeling towards relapsing, gambling every time you met with Defendant. She was very, she was very mild as far as when –
THE COURT: The State submits. The State submits.
....
[THE STATE]: [CW] was also very frank and forthright how she described what happened to her when she discovered things were missing. She told you in details how she was trying to call her phone, and it went to ringing first, then voicemail. It took her a while to figure it out. Then she went downstairs and she started checking the video. If it happened the way Defendant is telling you it happened and they actually had these conversations and [CW] invited her to go up, why would [CW] go down and bother [Pavao] to review the video and check who was it that came?
And [Pavao] is [an] absolutely impartial witness. You heard his testimony. [Defense counsel] was asking him all these questions, whether he discussed it with someone else, whether he knew other people, and he told you he had no clue. He was just doing his job, and he saw this tenant who came down and told him that things were stolen from her and she wanted to see the video to figure it out who that was. She did have her suspicion because the last person who called her was Defendant. But why would she go to Ray and look at that video to try to figure it out if in fact it happened the way [Salavea] says it happened? [Salavea] is not a truthful witness.
Another factor is interest, if any, in the result of this case. Of course, every Defendant has a lot of interest in the result of the case, and that's natural, but you cannot disregard it. It's still there. There is interest and bias. Defendant has a lot of interest what's at stake, while [CW], why would [CW] go through all of this and why would [CW] go and make up a story if it was not what happened? There was no evidence by Defendant why is it that [CW] would do it, and there was no evidence from [CW], even though we pushed her, both of us, that she had any reason to tell this story. She told you the truth.
THE COURT: Well, the State submits.
[THE STATE]: State submits she told you the truth.
THE COURT: Strike that "She told you the truth."
What is your argument?
Jury will disregard that part of the argument.
Salavea's counsel made no objections to any statements that the DPA made in closing argument.
The jury found Salavea guilty of first degree burglary. The circuit court sentenced Salavea to ten years’ imprisonment, with a mandatory minimum term as a repeat offender of four years and six months.
The ICA rejected Salavea's three points of error and affirmed the circuit court's Judgment of Conviction and Sentence.
II. STANDARDS OF REVIEW
A. Ineffective Assistance of Counsel
When addressing claims of ineffective assistance of counsel, we assess whether, "viewed as a whole, the assistance provided was within the range of competence demanded of attorneys in criminal cases." Dan v. State, 76 Hawai‘i 423, 427, 879 P.2d 528, 532 (1994) (internal quotation marks, citation, and brackets omitted).
General claims of ineffectiveness are insufficient and every action or omission is not subject to inquiry. Specific actions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny. If, however, the action or omission had no obvious basis for benefitting the defendant's case and it "resulted in the withdrawal or substantial impairment of a potentially meritorious defense," then it will be evaluated as information that an ordinary competent criminal attorney should have had.
Id. (ellipses and brackets omitted; emphasis in original) (quoting Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976 (1993) ). "[M]atters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight." State v. Richie, 88 Hawai‘i 19, 39-40, 960 P.2d 1227, 1247-48 (1998) (internal citation and quotation marks omitted; emphasis in original).
B. Prosecutorial Misconduct
"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, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999) (internal citation and quotation marks omitted).
III. DISCUSSION
A. Salavea's counsel was not ineffective.
Because I believe that the Majority disregards the obvious tactical benefit to defense counsel's supposed "error" and mischaracterizes the pertinent issues at trial, I dissent from the Majority's holding that Salavea received ineffective assistance of counsel.
The Majority holds that defense counsel provided ineffective assistance when "defense counsel was pursuing elicitation of the CW's [alleged] use of methamphetamine during the incident but appears to have been confounded by the State's hearsay objection." Majority at 577, 465 P.3d at 1024. The Majority concludes that when defense counsel did not elicit testimony from Salavea about CW's alleged drug use it was not a tactical decision, as the ICA held, and that the omitted testimony "went to the heart of Salavea's defense" which, it asserts, turned on CW's credibility. Majority at 580, 465 P.3d at 1027.
Ineffective assistance of counsel occurs when: (1) "there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence;" and (2) "such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai‘i 504, 514, 78 P.3d 317, 327 (2003). However, "[g]eneral claims of ineffectiveness are insufficient and every action or omission is not subject to inquiry. Specific actions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny." Briones, 74 Haw. at 462-63, 848 P.2d at 976 (emphasis in original).
I disagree with the Majority's opinion that there was no obvious tactical basis for trial counsel's decision not to attempt to establish CW's drug use at the time of the alleged burglary. Defense counsel obviously did not wish to open the door to Salavea's history of drug abuse, and in declining to do so avoided allowing the State to attack Salavea's character and credibility. Moreover, even assuming, arguendo, that there was no tactical basis for trial counsel's decision, that decision did not result in "the withdrawal or substantial impairment of a potentially meritorious defense" because Salavea's defense did not, as the Majority claims, "turn[ ] on the credibility of CW's or Salavea's version of the events." Contra Majority at 576, 580, 465 P.3d at 1023, 1027; see Wakisaka, 102 Hawai‘i at 514, 78 P.3d at 327.
First, contrary to the Majority's assertion, defense counsel likely elected to avoid questioning CW and Salavea about CW's alleged drug use on the day of the incident because it could have easily led to testimony about CW's past drug use. This testimony would have in turn "opened the door" to testimony about Salavea's own extensive drug use. "The ‘opening the door’ doctrine is essentially a rule of expanded relevancy .... Under this doctrine, when one party introduces inadmissible evidence, the opposing party may respond by introducing [ ] inadmissible evidence on the same issue." State v. Lavoie, 145 Hawai‘i 409, 422, 453 P.3d 229, 242 (2019) (citations omitted, brackets in original).
The ‘opening the door’ doctrine is widely recognized by state and federal courts. See Rivera v. Ring, No. 19-11053, 810 Fed.Appx. 859, ––––, 2020 WL 1970637, at *4 (11th Cir. April 24, 2020) ; Nguyen v. Southwest Leasing and Rental Inc., 282 F.3d 1061, 1067 (9th Cir. 2002) ; Harned v. Dura Corp., 665 P.2d 5, 9 (Ala. 1983) ; State v. Fuller, No. 2018-0423, 2019 WL 6999716, at *3 (N.H. Dec. 20, 2019) ; State v. Vance, 596 S.W.3d 229, 249-50 (Tenn. 2020). The Majority notes that we have never expressly adopted this doctrine. Majority at 577, 465 P.3d at 1024. However, as we have never rejected this doctrine, its use by the Hawai‘i trial courts is well documented. See State v. Miranda, No. 17-0000660, 147 Hawai‘i 171, 184-85, 465 P.3d 618, 631-32 (Haw. June 4, 2020) ; Lavoie, 145 Hawai‘i at 414, 453 P.3d at 234 ; State v. Fukusaku, 85 Hawai‘i 462, 497, 946 P.2d 32, 67 (1997) ; State v. Schnabel, 127 Hawai‘i 432, 439, 279 P.3d 1237, 1244 (2012) ; State v. Acker, 133 Hawai‘i 253, 266-67, 327 P.3d 931, 944-45 (2014).
Indeed, here the DPA and the circuit court referenced this doctrine multiple times at a pretrial hearing and the circuit court ruled in reliance on the doctrine. That is to say, defense counsel had no reason to believe that the circuit court would not allow the DPA to employ the doctrine at trial and therefore considered this eventuality when making tactical decisions at trial.
When Salavea noticed her intention to proffer evidence of CW's drug use at the time of the incident, the State filed a Notice stating that it intended to offer evidence of Salavea's drug use in 2014 and 2015. During the hearing on motions in limine, the circuit court stated that use of drugs by any witness was relevant to the witness's perception and memory. The circuit court ruled that such evidence would be admitted, "but it's also a two way sword, right?" The circuit court also ruled that, if Salavea made any inadmissible allegations of CW's prior drug use during her testimony, the State would be allowed to cross-examine Salavea about the fact that she and CW had a history of using drugs together. Moreover, the DPA stated during the hearing that, if any evidence of CW's history of drug use was adduced, the State would offer evidence as to why CW was trying to distance herself from Salavea – because CW did not want to gamble anymore or jeopardize her [HOPE] Probation. The DPA explained that "every time [CW and Salavea] met, [CW] ended up using [drugs]," so "[CW] did not want to have anything to do with [Salavea] anymore because it was screwing up her HOPE Probation." Thus, though the circuit court ruled that evidence of CW's alleged drug use at the time of the alleged burglary was relevant and would not open the door to Salavea's past drug use, Salavea's trial counsel was on notice that adducing evidence of CW's past drug use risked opening the door to Salavea's own drug use.
The Majority's contention that defense counsel's decision not to question Salavea about CW's alleged drug use on the date of the incident was not tactical fails because that decision bolstered Salavea's credibility and avoided opening the door to Salavea's own drug use, the danger of which greatly outweighed the negligible benefit of potential testimony about CW's alleged drug use.
Salavea's credibility may have been damaged if she testified, in complete contradiction to the testimony of several witnesses, that CW had been using drugs that day. The DPA had already adduced testimony from two other witnesses that would have contradicted Salavea's potential testimony that CW was using "ice" on the afternoon of March 27, 2015. First, Mother testified that CW was sleeping when Mother left the apartment about 12:00 p.m., but that when Mother returned home about 2:00 p.m., CW was "speak[ing] okay" and Mother noticed nothing unusual. Then, Pavao testified that CW "look[ed] normal," explained herself normally, and he noticed nothing unusual about CW a few hours after the alleged burglary.
Moreover, Salavea's defense counsel might have judged the negligible value of any testimony by Salavea as to CW's perception and memory as not worth the risk. By adducing testimony that CW was using drugs on the date of the incident, defense counsel risked eliciting testimony of CW's past drug use and thus opening the door to Salavea's past drug use and damaging Salavea's credibility in multiple ways.
For example, defense counsel stated in a pretrial hearing that Salavea would testify that she "felt bad when she saw [CW] using the drugs and so it occasioned her to do something about it." Salavea might have "felt bad" because she was disappointed that CW was using drugs or because she was angry that CW was using drugs without her. This testimony would have likely led to testimony that CW was on HOPE probation for drug use, which would have opened the door to testimony that Salavea, too, was on HOPE probation for drug use. Salavea's testimony also could have led to testimony that Salavea and CW met when they were both in a drug rehabilitation program. Despite the Majority's insistence that defense counsel could have safely elicited testimony that CW was using drugs on the date of the incident, in practice Salavea's testimony about CW's alleged drug use would have led to testimony about Salavea's own drug use.
This risk far outweighed the minimal benefit to be gained by adducing evidence of CW's alleged drug use on the day of the incident, which testimony had already been contradicted by multiple other witnesses. As discussed infra, the testimony of multiple other State witnesses, Salavea's own testimony, and the video and fob-use evidence minimized the importance of CW's testimony, and therefore CW's credibility.
We cannot know why defense counsel declined to question Salavea about drug use. For this reason it is improper to second-guess on appeal an attorney's decision not to pursue a single line of questioning while examining a witness, which is more than likely a matter of trial strategy. See Richie, 88 Hawai‘i at 39-40, 960 P.2d at 1247-48 ("[M]atters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.") (Emphasis in original, quotations omitted.) It is obvious to me that defense counsel's decision not to question Salavea about CW's alleged drug use was a trial tactic and not an error. As such, Salavea's claim of ineffective assistance of counsel fails on the first prong.
Assuming, arguendo, that Salavea did satisfy the first prong, Salavea still failed to establish that she received ineffective assistance of counsel because defense counsel's decision not to question Salvea about CW's alleged drug use did not result in "either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Aplaca, 74 Haw. 54, 67, 837 P.2d 1298, 1305 (1992). The jury found Salavea guilty of burglary in the first degree in violation of HRS § 708-810(1)(c) (2014). HRS § 708-810(1)(c) provides:
(1) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and:
....
(c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.
Salavea admitted at trial that she entered CW's home, that she knew on the day of the incident that she did not have permission to take CW's backpack, and that she knew it was wrong and amounted to theft. The primary issue was Salavea's own subjective intent upon entering CW's apartment and taking CW's possessions. CW's recounting of the incident was relevant only to the issue of whether Salavea entered the building unlawfully. Overwhelming evidence corroborated CW's testimony that neither she nor her parents gave Salavea permission to enter the apartment. Security guard Bryant testified that CW's fob was used to enter the building. Detective Nguyen testified that the person captured by security footage entering the building with CW's fob was Salavea. CW's father testified that he never gave Salavea permission to enter his apartment. Mother testified that on the day of the incident, CW called her and asked if she had seen CW's phone. Mother also testified that CW told her that a friend called her, but she did not answer the phone, and CW assumed the friend had taken her backpack and phone. Security guard Pavao testified that on the day of the incident, CW reported that someone had possibly entered her apartment and taken her property and then requested that Pavao show her recorded footage from that afternoon.
A close read of Salavea's trial testimony shows that Salavea knew at the time she took CW's backpack, that it "wasn't ok[.]"
Q. Because you took this stuff from her before without an express permission, you thought it was okay to take this Roxy backpack now even though she expressly told you don't take it, so it made it okay?
A. She was there. I mean – no.
Q. So it wasn't okay to take it?
A. No, it wasn't.
The DPA's phrasing of the question in the past tense, "you thought it was ok" and Salavea's ultimate response, "no" indicates that Salavea knew when she took CW's backpack that it was not ok.
The Majority minimizes the implications of Salavea's admission in her trial testimony that she knew she did not have permission to take CW's backpack and her agreement with the DPA that she had committed theft by taking the backpack without CW's permission. The Majority then contradicts Salavea's testimony that she did not have permission to take CW's backpack by importing an unexpressed implication that "CW would have spoken up if Salavea's borrowing of the backpack were not permitted." Majority at 580, 465 P.3d at 1027.
Salavea's admission that she stole from CW undermines Salavea's credibility and detracts from her contention that she let herself into CW's family's apartment with the sole intention of returning CW's fob (which she did not actually return). Because direct evidence of a person's subjective intent rarely exists, courts are able to use evidence of the person's subsequent actions to infer their intent. State v. Kiese, 126 Hawai‘i 494, 502-03, 273 P.3d 1180, 1188-89 (2012) ("We have consistently held that since intent can rarely be proved by direct evidence, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the act is sufficient to establish the requisite intent. Thus, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances."). Here, Salavea claims that she intended to return CW's fob, but instead, by her own admission, entered CW's family's apartment, stole CW's backpack, and did not return the fob, instead using it to exit the building. Salavea's admission is of crucial importance because it supports the inference that she entered CW's home with the intent to steal, one of the ultimate issues at trial, and because it in turn renders less significant CW's testimony.
The Majority nevertheless avers that evidence of CW's drug use on the day in question "went to the heart of Salavea's defense, which turned on the credibility of the CW's or Salavea's version of events." Majority at 580, 465 P.3d at 1027. I strongly disagree with the Majority's characterization of Salavea's defense. Even if CW's testimony had been omitted from the trial evidence, Salavea's own testimony, combined with the testimony of the State's other witnesses and the video and fob-use evidence, incriminated her. The Majority therefore drastically overstates the relevance of CW's credibility and "the reliability of the CW's account." Contra Majority at 579, 465 P.3d at 1026.
CW's alleged use of methamphetamines on the day of the incident would provide no support for any possible defense by Salavea. Salavea does not meet the second prong of the test for ineffective assistance of counsel because there is no possibility that defense counsel's decision not to elicit testimony of CW's alleged drug use withdrew or substantially impaired a potentially meritorious defense. See State v. DeLeon, 131 Hawai‘i 463, 479, 319 P.3d 382, 398 (2014) ; Contra Majority at 580-81, 465 P.3d at 1027–28.
In reframing the role of CW's credibility at trial, the Majority compares this case to our decision in State v. Aplaca, 74 Haw. 54, 837 P.2d 1298. The facts of Aplaca, which include multiple egregious omissions by defense counsel, can be readily distinguished from the facts of this case.
Aplaca involved an incident that transpired between two Adult Correctional Officers (ACO) at Waiawa Correctional Facility, in which Aplaca allegedly "rammed the left side of [the Complaining Witness's] body" while the two were walking down a hallway. Id. at 58, 837 P.2d at 1301. Before trial, defense counsel failed to conduct an investigation of the materials he received from the State, which included a report that Aplaca had passed a polygraph test, and failed to discover that the State had not provided full discovery, notably, a recorded interview of the CW in which the CW made statements inconsistent with those she made at trial. Id. at 69, 837 P.2d at 1306. Defense counsel also failed to investigate a list of potential witnesses Aplaca provided as well as witnesses who were made known to him through the discovery he received. Id. at 67-68, 837 P.2d at 1305. In support of her motion for a new trial, Aplaca provided affidavits from four witnesses whom defense counsel failed to interview which submitted that, had they been called at trial, the witnesses would have testified as follows: (1) Chief of Security at Waiawa would have testified that "Aplaca was a truthful and peaceable person who should be believed under oath;" (2) the ACO who conducted an investigation of the incident for the Department of Corrections would have testified that he made a report concluding that no assault had taken place; (3) a fellow ACO would have testified that the CW "was not a truthful person, even if she were under oath;" and (4) a Waiawa administrator would have testified that CW was not a truthful person. Id. at 68, 837 P.2d at 1306. At trial, only Aplaca and CW testified and defense counsel failed to adequately cross-examine CW about a prior inconsistent statement. Id. at 59, 837 P.2d at 1302. In determining that Aplaca received ineffective assistance of counsel, this court held that "the decision not to conduct a pretrial investigation of prospective defense witnesses" was not a tactical decision and that defense counsel's failure to do so "had a direct bearing on the ultimate outcome of the case." Id. at 71, 73, 837 P.2d at 1307, 1308. We observed that because only Aplaca and CW testified at trial, the case hinged on their respective credibility. Id. at 58, 837 P.2d at 1301 ("At trial, only two witnesses testified - [CW] and Aplaca. Hence, the outcome of the trial hinged on the credibility of the witnesses.").
Aplaca is distinct from this case because here numerous witnesses testified and because defense counsel's single omission was a tactical choice that was significantly less prejudicial than Aplaca's counsel's multiple serious failures. First, in this case the State called six witnesses and presented video and fob-usage evidence that Salavea entered the building with CW's missing fob on the day of the incident. Unlike in Aplaca, in which virtually the only evidence proffered was the defendant and the CW's accounts of the physical altercation, here substantial evidence demonstrates that Salavea entered the building with CW's key and left with CW's possessions. Moreover, Aplaca's counsel completely failed to review the State's discovery materials or interview any potential defense witnesses, thereby failing to present both character and direct evidence that Aplaca did not assault the CW. By contrast, defense counsel in this case omitted a single line of questioning about CW's potential drug use on the day of the incident, which, as explained supra, was a tactical decision that did not substantially impair a potential defense. A close reading of Aplaca demonstrates that the Majority's comparison of this case to Aplaca is unavailing.
Furthermore, Aplaca exemplifies the level of clear incompetence we have required in the past to determine that an attorney provided ineffective assistance. See Briones, 74 Hawai‘i at 457, 848 P.2d at 974 (holding that counsel's failure to object to factually inconsistent guilty verdicts for attempted first-degree murder and separate convictions for second-degree murder and attempted second-degree murder rendered assistance ineffective); Wakisaka, 102 Hawai‘i at 516-17, 78 P.3d at 329-30 (defense counsel's failure to object to DPA's improper comment about defendant's failure to testify and defense counsel's intentional elicitation of testimony by detective that detective believed defendant murdered decedent and the evidence upon which this belief was based constituted ineffective assistance.).
The Majority disregards the numerous blatant failures of Aplaca's defense counsel - to review discovery from the State, to discover that the State had not provided full discovery, to investigate a list of witnesses provided by Aplaca, to call any of those witnesses at trial, and to cross-examine the CW about a prior inconsistent statement. In concert, these failures and omissions clearly impaired Aplaca's defense. The nature of the errors and the number thereof plainly impact this court's analysis of whether the errors or omissions "resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." Aplaca, 74 Haw. at 66-67, 837 P.2d at 1305 ("[T]he question is: when viewed as a whole, [was] the assistance provided [to the defendant] within the range of competence demanded of attorneys in criminal cases[?]") (quoting State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 500 (1986) (emphasis added, internal quotation omitted, brackets in original)). Indeed, test's language employs plural nouns "errors or omissions," id., which indicates that this court envisioned that ineffective assistance require more than one serious error or omission. The Majority departs from our existing precedent by holding that the omission of a single line of testimony resulted in the substantial impairment of Salavea's defense. The Majority's comparison of Aplaca's counsel's numerous egregious failures to Salavea's counsel's decision not to elicit a single line of questioning from one witness is ill-suited.
The Majority contends that defense counsel's performance was "not within the range of competence demanded of attorneys in criminal cases." Majority at 581, 465 P.3d at 1028, citing Cordeiro, 99 Hawai‘i at 405, 56 P.3d at 707. The Majority bases this opinion on the fact that defense counsel did not pursue a single line of questioning which, according to the Majority, could have impaired Salavea's defense. Majority at 579, 465 P.3d at 1026. By basing its conclusion on a single omission, especially where multiple obvious reasons exist for omitting that testimony, the Majority sets an impossibly high bar for attorney competence. We have never before concluded that counsel was ineffective solely for failure to adduce testimony at trial. Indeed, courts generally do not hold that counsel provided ineffective assistance based on errors concerning the admission of testimony or evidence alone. See Johnson v. Lockhart, 921 F.2d 796 (8th Cir. 1990) (holding that defense counsel's performance was not ineffective despite presenting no physical, testimonial, or circumstantial evidence at trial); Haislip v. Attorney General, State of Kan., 992 F.2d 1085 (10th Cir. 1993) (murder defendant's counsel was not ineffective despite failing to seek admission of co-defendant's confession to committing the murder). This is so because trial attorneys must make tactical decisions based on the ever-shifting states of their cases at trial. It is not this court's role to label an attorney incompetent because we do not agree with a single such tactical decision. It is clear to me that defense counsel's assistance was not ineffective and was, in fact, well within the range of competence demanded of Hawai‘i attorneys.
B. No prosecutorial misconduct occurred.
The Majority further holds that the DPA committed misconduct during the State's closing and rebuttal arguments. Defense counsel did not object to the DPA's closing argument or rebuttal arguments at trial.
The Majority contends that defense counsel's lack of objection to the prosecutor's supposed misconduct during closing statements further evinces defense counsel's ineffectiveness. Majority at 581, 465 P.3d at 1028. I disagree, and note that as defense counsel appears to have correctly determined that the prosecutor's conduct was not improper, defense counsel did not demonstrate lack of care or skill when she did not object to the prosecutor's comments.
"Normally, an issue not preserved at trial is deemed to be waived. But where plain errors were committed and substantial rights were affected thereby, the errors may be noticed although they were not brought to the attention of the trial court." State v. Fagaragan, 115 Hawai‘i 364, 367-68, 167 P.3d 739, 742-43 (2007) (internal quotation marks, citations, and brackets omitted). Accordingly, an alleged error may be corrected on appeal unless it was harmless beyond a reasonable doubt. See State v. Miller, 122 Hawai‘i 92, 100, 223 P.3d 157, 165 (2010). We determine whether the prosecutor's actions were misconduct that amounted to harmful error by considering: "(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." Rogan, 91 Hawai‘i at 412, 984 P.2d at 1238.
The Majority concludes that the DPA committed misconduct by: (1) expressing her personal opinion; (2) making a generic attack on Salavea's credibility; and (3) denigrating defense counsel. Majority at 581–88, 465 P.3d at 1028–35.
1. The DPA did not offer her personal opinion as to either CW's or Salavea's credibility.
The Majority reviews the following statements by the DPA during her closing argument:
[THE STATE]: ... [CW] told you the truth. [CW's] testimony was credible.
THE COURT: Well, the State submits.
[THE STATE]: Thank you.
The State submits that [CW's] testimony is credible because it is corroborated by other evidence, because it makes sense, and because you, as the judges of everybody's demeanor and looking at those factors that are given to you in the jury instructions, can assess for yourself whether it makes sense or not.
Now, Defendant's testimony, on the other hand, State submits to you, is not credible, and why it's not credible? Because it doesn't make sense. When Defendant realized that [CW] was not going to give her the money voluntarily, Defendant used an opportunity of having [CW's] fob to go into [CW's] home and steal and take it on her own and basically to help herself. When [CW] would not give her money voluntarily and refused to give her money, Defendant was upset. She used the fob, she used the opportunity, the chance that she had, to help herself.
Defendant's story that she had permission to go in and she had somehow thought it was okay and that [CW] cooperated with her and [CW] let her do all of that is not credible. It's not
credible, it's a lie, because it doesn't make any sense....
What's really significant here -- and this is what you need to focus on and this is how the State submits to you that it's proven that Defendant's story doesn't add up -- is the whole story by Defendant that the fob was lost by [CW] on March 6th does not hold, does not hold up. That's a lie, and from there, it follows that she was concealing the fob, she was deliberately holding on to that fob secretly so she could go in her own time at her own convenience and take from [CW].
[CW] told you and she was very frank with you, she explained in details what happened to her fob. She told you she lost that fob as far as almost a year prior to this incident in March, and that testimony was corroborated by Ray Pavao. That testimony was corroborated by the records that she got an additional fob, she got the second fob.
The Majority also reviews the following statements by the DPA during her rebuttal argument:
[THE STATE]: .... Judge Ahn did read to you the multiple factors that you may consider in determining whether a person is telling the truth or not.
One of them is the witness’ manner of testifying. That is significant. You saw how [CW] testified. I don't know if calling her sophisticated is kind of an overstatement. That's your judgment entirely. She may not have looked as sophisticated as [Defense Counsel] is claiming, but she was very forthright, she was very forthright about how she felt.
And she also told you frankly that they were close friends. She was disappointed with how their relationship went, but she also did express no bias or no reason or no negativity towards Defendant even though I asked her hard questions. I was kind of asking her, you know, like, how did you feel, what was your, you know, what was your feeling towards relapsing, gambling every time you met with Defendant. She was very, she was very mild as far as when --
THE COURT: The State submits. The State submits.
....
[THE STATE]: [CW] was also very frank and forthright how she described what happened to her when she discovered things were missing. She told you in details how she was trying to call her phone, and it went to ringing first, then voicemail. It took her a while to figure it out. Then she went downstairs and she started checking the video. If it happened the way Defendant is telling you it happened and they actually had these conversations and [CW] invited her to go up, why would [CW] go down and bother Ray Pavao to review the video and check who was it that came?
And [Pavao] is absolutely impartial witness. You heard his testimony. [Defense counsel] was asking him all these questions, whether he discussed it with someone else, whether he knew other people, and he told you he had no clue. He was just doing his job, and he saw this tenant who came down and told him that things were stolen from her and she wanted to see the video to figure it out who that was. She did have her suspicion because the last person who called her was Defendant. But why would she go to [Pavao] and look at that video to try to figure it out if in fact it happened the way [Salavea] says it happened? [Salavea] is not a truthful witness.
Another factor is interest, if any, in the result of this case. Of course, every Defendant has a lot of interest in the result of the case, and that's natural, but you cannot disregard it. It's still there. There is interest and bias. Defendant has a lot of interest what's at stake, while [CW], why would [CW] go through all of this and why would [CW] go and make up a story if it was not what happened? There was no evidence by Defendant why is it that [CW] would do it, and there was no evidence from [CW], even though we pushed her, both of us, that she had any reason to tell this story. She told you the truth.
THE COURT: Well, the State submits.
[THE STATE]: State submits she told you the truth.
THE COURT: Strike that "She told you the truth."
What is your argument?
Jury will disregard that part of the argument.
The Majority concludes that the DPA made two statements during closing argument that "bolstered the CW's credibility without any reference to the evidence supporting the assertion" and "attacked Salavea's credibility at least twice without prior reference to the evidence." Majority at 587, 465 P.3d at 1030. The Majority further takes issue with the DPA's comments during closing arguments that Salavea lied. Majority at 587, 465 P.3d at 1030.
Considering the first Rogan factor, the nature of the conduct, the DPA's comments neither conveyed her personal opinion nor were they "calculated to inflame the passions of the jurors and to divert them ... from their duty to decide the case on the evidence." See State v. Pacheco, 96 Hawai‘i 83, 95, 26 P.3d 572, 584 (2001). See also Rogan, 91 Hawai‘i at 412–15, 984 P.2d at 1238–41 (prosecutor's statements regarding defendant's race constituted an improper emotional appeal to sympathize with complainant's mother and risked inflaming the jury's prejudices against the defendant). Rather than diverting the jurors from their duty to decide the case, when reviewed in context the DPA's comments directed the jury to specific evidence adduced during the trial and invited the jury to decide for themselves whose account was more credible. In particular, the DPA pointed out how CW's testimony was corroborated by other evidence, including the fob usage printout, video footage, and Pavao's testimony. Conversely, Salavea's testimony that CW's fob was lost on March 6, 2015 was directly contradicted by the Moana Pacific's records and testimony of Pavao, which established that CW lost the fob in June of 2014.
The DPA referred to Pavao as testifying about the replacement fob purchased by CW in June of 2014, but it was actually Bryant, the Moana Pacific security supervisor who testified about the replacement fob.
As Salavea notes, this court disapproved of the word "lie" in closing statements in State v. Austin in 2018. 143 Hawai‘i 18, 422 P.3d 18 (2018). However, because Salavea's trial occurred in 2015 and Austin applies prospectively, the fact that the prosecutor used the word "lie" or "lying" does not render her comments per se improper. Moreover, here the DPA's assertion that Salavea lied was supported by the evidence adduced at trial. Id. at 44, 422 P.3d at 44 (Nakayama, J., writing separately) (observing that this court has "held that it is not improper for prosecutors to assert that a defendant's testimony is not credible in a variety of ways so long as such an inference is reasonably supported by the evidence."). Therefore, because the DPA's comments were rooted in the context of evidence and took place before our blanket ban on the use of the word "lie," the first factor does not indicate prosecutorial misconduct. Although I conclude that the nature of the DPA's comments do not render them misconduct, I nevertheless address the second and third Rogan factors. Regarding the second factor, the circuit court gave prompt curative instructions ("the State submits"), struck the DPA's statement that "she told you the truth," and instructed the jury to "disregard that part of the argument." In addition, the circuit court instructed the jury as follows before closing arguments began: "Statements or arguments made by lawyers are not evidence. You should consider their arguments to you, but you are not bound by their memory or interpretation of the evidence." Because we presume that the jury follows the circuit court's instructions, this factor weighs against Salavea. See State v. Pauline, 100 Hawai‘i 356, 381, 60 P.3d 306, 331 (2002).
A review of the transcript shows that the DPA used the word "lie" twice and "lying" once.
As to the final Rogan factor, the evidence against Salavea was overwhelming. Notwithstanding the Majority's repeated assertion that the entire case turned on whether the jury found CW or Salavea to be more credible, the State presented ample evidence against Salavea including: (1) the fob-usage records that disputed Salavea's account; (2) testimony of CW and other corroborating witnesses, including Mother who testified that CW called her looking for her cell phone; and (3) the surveillance footage of Salavea entering the building and leaving with CW's backpack. Furthermore, Salavea's own testimony inculpated her. Salavea admitted that she took the backpack without CW's permission and that she knew it was wrong and amounted to theft. Salavea also testified that she went to CW's apartment to return the keys but that she did not return the keys. Moreover, Salavea admitted that she actually used the key fob to access the elevator to leave the Moana Pacific. Thus, the evidence against Salavea was overwhelming and not merely contradictory testimony.
Because the nature of the DPA's comments did not constitute misconduct, the circuit court gave prompt curative instructions, and ample evidence to supported the DPA's argument, I conclude that the DPA did not engage in prosecutorial misconduct.
The Majority also holds that the prosecutor "improperly suggested that Salavea had the burden of showing why the CW's testimony was not credible" (Majority at 587 n.35, 465 P.3d at 1034 n.35) when she made the following statement:
[Salavea] has a lot of interest what's at stake, while [CW], why would [CW] go through all of this and why would [CW] go and make up a story if it was not what happened? There was no evidence by Defendant why is it that [CW] would do it, and there was no evidence from [CW], even though we pushed her, both of us, that she had any reason to tell this story.
(Emphasis added.) I disagree.
The DPA's statement was not improper because it did not shift the burden to Salavea. Placed in context, the DPA made this argument on rebuttal after Salavea's trial counsel argued that CW was "more sophisticated" and suggested that the jury should ask itself, "who was more likely to cook up something[.]" In her rebuttal argument, the DPA argued that "calling [CW] sophisticated is kind of an overstatement[,]" and said that it was for the jury to judge if CW "looked as sophisticated as [Salavea's counsel] is claiming[.]" In addition, the circuit court instructed the jury before closing arguments that Salavea was presumed innocent, that this presumption remained with Salavea throughout the trial, and that Salavea "[had] no duty or obligation to call any witnesses or produce any evidence." The ICA correctly concluded that the DPA did not improperly state that Salavea had the burden of proving that CW was lying. Rather, the "DPA was merely arguing that CW's credibility had not been impeached by any evidence of bias or motive to ‘make up a story.’ " State v. Salavea, No. 16-0000386, 2019 WL 763475, at *14 (App. Feb. 4, 2019) (mem.).
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2. The DPA's argument that Salavea had a "lot of interest [sic] what's at stake" was not an improper generic argument, but was supported by the evidence adduced at trial.
Next, the Majority concludes that the DPA made a "generic attack on credibility" in violation of State v. Basham, 132 Hawai‘i 97, 319 P.3d 1105 (2014) by implying that Salavea had lied because she had a "lot of interest [sic] what's at stake." Majority at 584, 465 P.3d at 1031. In Basham, this court held that "it is improper for a prosecutor in summation to make generic arguments regarding credibility based solely upon the status of a defendant." 132 Hawai‘i 97, 118, 319 P.3d 1105, 1126 (2014) (citing State v. Walsh, 125 Hawai‘i 271, 285, 260 P.3d 350, 364 (2011) ).
In Basham, a defendant challenged the prosecution's statements during closing argument as improper. 132 Hawai‘i at 112, 319 P.3d at 1120. During closing arguments, the prosecutor argued that the sole issue in the case was witness credibility and that the complaining witness and his wife, who both testified, "have been completely credible witnesses" and "have absolutely no reason to fabricate or otherwise make up the accounts that they have recited to you in explicit detail." Id. at 104, 319 P.3d at 1112. The prosecutor also told the jury that the defendant, who testified at trial, had "absolutely no reason to tell you the truth." Id. As this court's opinion noted, "[a]t that point in the closing argument, the prosecutor had not discussed any of the testimony that had been presented during trial" and offered no evidence-based reason why the defendant "would have no reason to tell the truth" other than his status as the defendant. Id. at 116, 319 P.3d at 1124. This court reasoned that, as with generic tailoring arguments, "[c]ategorical comments" asking a jury to "infer a defendant's lack of credibility based solely on the fact that he or she is a defendant" unfairly penalize the defendant and undermine the jury's function as fact finder. Id. at 117, 319 P.3d at 1125.
Analyzing Salavea's case in light of Basham, the DPA's comment that Salavea had a "lot of interest [sic] what's at stake" was not improper. This case is factually distinguishable from Basham for several reasons. First, here the DPA made the statement at issue during her rebuttal, after discussing the testimony and other evidence presented at trial in detail. Second, the DPA prefaced her statement by reminding the jury of the circuit court's instruction that one of the factors to consider in evaluating the credibility of a witness "is interest, if any, in the result of the case." Third, Salavea's case did not turn solely on the issue of the witnesses’ credibility, as additional corroborating evidence was presented to the jury in the form of the video footage and the fob-usage printout. Thus, the DPA's argument that the jury should consider the witnesses’ interest in the case as a factor in determining witness credibility was not an improper categorical comment that unfairly penalized Salavea because she was a criminal defendant.
For these reasons, the DPA's comment was not an improper generic argument.
3. The DPA did not improperly attack opposing counsel's integrity by reminding the jury of the circuit court's instruction "not to be influenced by pity for the Defendant[.]"
Finally, the Majority determines that the DPA disparaged defense counsel when the DPA stated, at the start of her rebuttal:
Ladies and gentlemen, what Defense Counsel was just doing was trying to appeal to your sense of pity or some kind of sense, you know, for Defendant, and that's improper. You are given an instruction that you should not be influenced by that.
(Emphasis added.) The Majority characterizes this statement as an "attack[ ] on the personal character of defense counsel" which "denigrate[d] the legal profession" and "undermine[d] the adversarial system." Majority at 586, 465 P.3d at 1033.
I disagree with the Majority's exaggerated characterization of the DPA's permissible comment and the Majority's conclusion that it constituted prosecutorial misconduct.
First, the DPA's comment was made in response to statements made by Salavea's counsel in closing argument reminding the jury that Salavea "broke down" while testifying and "was in tears." Salavea's counsel then "suggest[ed]" that Salavea's tears were "because it probably didn't even occur to her that that playful little act [of taking CW's backpack] might be viewed by the law as theft." The comment was not, as the Majority states, merely a "comment on a witness's appearance and demeanor during [her] testimony[,]" but was a comment on Salavea's intent in taking CW's possessions, the primary issue at trial. Contra Majority at 586, 465 P.3d at 1033. The DPA was permitted to respond to defense counsel's statement regarding Salavea's intent. Contrary to the Majority's assertion, that the circuit court overruled the DPA's objection that defense counsel's statement was a personal statement that was not in evidence did not preclude the DPA from responding to defense counsel's argument regarding Salavea's intent nor did it indicate that defense counsel's statement was not an improper appeal to the jurors’ emotions. Contra Majority at 586–87, 465 P.3d at 1033–34. Put differently, though the circuit court overruled the DPA's objection on one basis, it does not follow that any subsequent criticism of the objected-to statement was an improper personal attack on defense counsel.
Second, the DPA's statement here was not the kind of unsupported and uninvited personal attack that this court disapproved in State v. Klinge, 92 Hawai‘i 577, 994 P.2d 509 (2000), where the prosecutor argued on rebuttal, "[t]he defense lawyer did not tell you that like he's taking everything out of context like he's not going to give you the whole story. He's not going to give you the whole picture because he has a duty [to] get his client off." Id. at 583, 994 P.2d at 515. Here, the DPA's comment was invited by Salavea's counsel's closing argument and merely reminded the jury of the circuit court's instruction "not to be influenced by pity for the Defendant[.]"
The DPA's statement reminded the jury about the circuit court's instructions and justifiably commented on defense counsel's attempts to appeal to the jury's emotions. To characterize this statement as a "denigration" of defense counsel wildly exaggerates the nature of the statement and effectively broadens the scope of prosecutorial misconduct to any comment by a prosecutor which references defense counsel's arguments. IV. CONCLUSION
I dissent. Having reviewed the record in its entirety, I find nothing in the conduct of defense counsel or the DPA which justifies vacating Salavea's Judgment of Conviction and Sentence. I would affirm the ICA's Judgment on Appeal.