HRE [Rule] 404, Commentary.State v. Pemberton, 71 Haw. 466, 471-72, 796 P.2d 80, 83 (1990). Under subsection (b), however, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as to show "motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.
(Emphasis added.) See State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) ("[T]he standard for judging the reasonableness of a defendant's belief for the need to use deadly force is determined from the point of view of a reasonable person in the defendant's position under the circumstances as he believed them to be. The jury, therefore, must consider the circumstances as the Defendant subjectively believed them to be at the time he tried to defend himself.
"Prosecutorial misconduct may provide grounds for a new trial if the prosecutor’s actions denied the defendant a fair trial." State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992) (citing State v. Pemberton, 71 Haw. 466, 796 P.2d 80 (1990) ). At trial, defense counsel made several motions for mistrial due to prosecutorial misconduct.
The jury, therefore, must consider the circumstances as the [d]efendant subjectively believed them to be at the time he tried to defend himself. State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) (emphasis in original) (citation omitted). It is therefore error to judge the reasonableness of a defendant's viewpoint based on circumstances "shown in the evidence" but of which the defendant is not "aware."
Although a single instance of prosecutorial misconduct may not substantially prejudice a defendant's right to a fair trial, the cumulative effect of numerous instances of misconduct may be so prejudicial so as to deny the defendant a fair trial. State v. Pemberton, 71 Haw. 466, 476, 796 P.2d 80, 84 (1990) ("[T]he cumulative weight of such errors may create `an atmosphere of bias and prejudice which no remarks by the trial court could erase.'") (quoting State v. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336, 338 (1973) (citation omitted)).
[131 Hawai'i 495] finder of fact to " consider the circumstances surrounding the use of force as the defendant subjectively viewed them." Id.; see also State v. Kupihea, 80 Hawai‘'i 307, 316, 909 P.2d 1122, 1131 (1996) ; State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) ; State v. Faafiti, 54 Haw. 637, 645, 513 P.2d 697, 703 (1973) ; Nupeiset, 90 Hawai‘i at 186, 977 P.2d at 194; State v. Straub, 9 Haw.App. 435, 445, 843 P.2d 1389, 1394 (1993). In other words, "the focus is on the circumstances known to the defendant, thus directing the jury to consider the actions of a ‘reasonable person in the defendant's position under the circumstances as he [or she] believed them to be.
Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant's right to a fair trial. State v. Pemberton, 71 Haw. 466, 476, 796 P.2d 80, 85 (1990) (citing State v. Sugimoto, 62 Haw. 259, 614 P.2d 386 (1980)); State v. Apao, 59 Haw. 625, 586 P.2d 250 (1978);State v. Johnson, 3 Haw. App. 472, 484, 653 P.2d 428, 436 (1982) (citations omitted). Although the court in Apao described the prejudice necessary to grant a motion for mistrial as "substantial," we believe the adjective is superfluous and redundant.
In evaluating the reasonableness of a defendant's belief that deadly force was necessary for self-protection, the evidence must be assessed from the standpoint of a reasonable person in the defendant's position under the circumstances as the defendant subjectively believed them to be at the time he or she tried to defend himself or herself. State v. Pemberton , 71 Haw. 466, 477, 796 P.2d 80, 85 (1990). The test for assessing a defendant's self-protection defense thus involves two prongs.
V.Susa argues that his conviction should be vacated because the prosecutor engaged in misconduct by: (1) personally vouching for the truthfulness of Collen's testimony; (2) misleading the jurors as to their decision-making function; (3) failing to control witnesses; and (4) creating State v. Pemberton, 71 Haw. 466, 796 P.2d 80 (1990), problems. Susa's arguments are without merit.
See State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990) (focusing on the defendant's perspective "at the time [they] tried to defend [themselves]" with deadly force).