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State of Hawaii v. Adam E. Florence

November 23, 2012

STATE OF HAWAII,
PLAINTIFF-APPELLEE,
v.
ADAM E. FLORENCE, JR., DEFENDANT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 10-1-0455)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

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

Defendant-Appellant Adam E. Florence, Jr. (Florence)

appeals from a July 15, 2011, Circuit Court of the First Circuit (Circuit Court) Judgment of Conviction and Sentence (Judgment) for: (1) Attempted Murder in the Second Degree, and (2) Carrying or Use of a Firearm in the Commission of a Separate Felony.*fn1 On March 24, 2010, Florence was charged with: (1)

Attempted Murder in the Second Degree, in violation of Hawaii

Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and

706-656 (1993 & Supp. 2011) (Count One); (2) Carrying or Use of a Firearm in the Commission of a Separate Felony, in violation of HRS § 134-21 (2011) (Count Two); and (3) Terroristic Threatening in the First Degree, in violation of HRS § 707-716 (1993 & Supp. 2011) (Count Three). On April 18, 2011, a jury found Florence guilty of Counts One and Two, and not guilty of Count Three.

On appeal, Florence raises a single point of error, contending that the prosecutor engaged in misconduct by making two improper remarks during closing argument.

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, we resolve Florence's point of error as follows:

[W]henever a defendant alleges prosecutorial misconduct, [the appellate court] must decide: (1) whether the conduct was improper; (2) if the conduct was improper, whether the misconduct was harmless beyond a reasonable doubt; and (3) if the misconduct was not harmless, whether the misconduct was so egregious as to bar reprosecution.

State v. Maluia, 107 Hawaii 20, 26, 108 P.3d 974, 980 (2005). The harmless beyond a reasonable doubt standard "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 Hawaii 405, 412, 984 P.2d 1231, 1238 (1999)

(citations omitted). This Court will grant a new trial or set aside a guilty verdict only where the prosecutorial misconduct has "caused prejudice to the defendant's right to a fair trial." State v. McGriff, 76 Hawaii 148, 158, 871 P.2d 782, 792 (1994). We consider three factors when determining whether the alleged prosecutorial misconduct reached the level of reversible error: "[1] the nature of the alleged misconduct, [2] the promptness or lack of a curative instruction, and [3] the strength or weakness of the evidence against the defendant." State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).

"Where a defendant fails to object to a prosecutor's statement during closing argument, appellate review is limited to a determination of whether the prosecutor's alleged misconduct amounted to plain error." State v. Iuli, 101 Hawaii 196, 204, 65 P.3d 143, 151 (2003). This Court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to ...


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