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State of Hawaii v. Richard Pettigrew

August 26, 2011

STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
RICHARD PETTIGREW, DEFENDANT-APPELLANT



APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT LIHUE DIVISION (CASE NO. 5P108-01645)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding J., Fujise and Leonard, JJ.)

Defendant-Appellant Richard Pettigrew (Pettigrew or Defendant) appeals from the Judgment filed on May 26, 2009 in the District Court of the Fifth Circuit, Lihue Division *fn1 (district court). On February 5, 2009, after a jury-waived trial, the district court found Pettigrew guilty of Sexual Assault in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 707-733(1)(a) (1993).*fn2

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

On appeal, Pettigrew contends:

(1) The district court exhibited bias and deprived him of a fair trial when it predetermined his guilt and conformed its factual findings to support the predetermined outcome.

(2) The Deputy Prosecuting Attorney (Prosecutor)

committed misconduct when he argued the facts of the instant case in a post-trial memorandum requested by the district court to address only a question of law.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Pettigrew's points of error as follows:

(1) Pettigrew contends the district court exhibited bias and deprived him of a fair trial. He argues that the district court found that sexual contact had been made with a tongue because to find otherwise would have resulted in acquittal since the complaint specifically charged him with "sexual contact by compulsion by licking [Complainant's] breast."

"[R]eversal on the grounds of judicial bias or misconduct is warranted only upon a showing that the trial was unfair. Unfairness, in turn, requires a clear and precise demonstration of prejudice." Aga v. Hundahl, 78 Hawaii 230, 242, 891 P.2d 1022, 1034 (1995) (citations omitted). Pettigrew does not point to any evidence in the record that demonstrates judicial bias or misconduct. There is nothing in the record that shows the district court's actions constituted misconduct or the court harbored any bias or prejudice towards Pettigrew. Pettigrew's first point of error is without merit.

(2) Pettigrew contends the Prosecutor disregarded the district court's request not to include factual arguments in a post-trial memorandum of law meant to address a specific question of law. Pettigrew argues that the Prosecutor's actions were egregious and resulted in a denial of procedural fairness.

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. Where a defendant fails to object to a prosecutor's statement during closing argument, appellate review ...


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