NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 10-1-1934)
On the briefs:
Emmanuel V. Tipon, for Defendant-Appellant.
Brandon H. Ito, Deputy, Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Nakamura, C.J., Fujise and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Ilona K. Miller (Miller) appeals from the Judgment of Conviction and Probation Sentence, entered on October 5, 2011 in the Circuit Court of the First Circuit (Circuit Court).
Miller was convicted of Promoting a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp. 2012) .
On appeal, Miller claims (1) plain error where the deputy prosecuting attorney (DPA) made remarks during closing argument and on rebuttal that constituted prosecutorial misconduct and (2) there was insufficient evidence to support her conviction.
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 Miller's points of error as follows:
(1) When the DPA's initial comments are viewed in context, his comments to the jury during closing argument related to the law with respect to possession of any dangerous drug "in any amount." When taken in context, the comments concerned the possibility of jury nullification with respect to the quantity of drugs necessary under the law, in light of the evidence establishing that the baggie possessed by Miller contained only 0.012 grams of methamphetamine. Miller's argument that the DPA admonished the jury that they had a duty to convict Miller is not supported by the record when the comments are viewed in their proper context.
In State v. Hatori, 92 Hawai'i 217, 220, 990 P.2d 115, 118 (App. 1999), a defendant contended that a jury nullification instruction should have been given and objected on appeal to a prosecutor's comment in summation that "after being selected as a juror in this case, all of you swore that you would follow the law." This court stated:
On balance we are persuaded by the position adhered to by most jurisdictions. Therefore, we conclude that Defendant had no substantial right to an instruction informing the jury of jury nullification or to the deletion of an instruction informing the jurors that they were to follow the law as given them by the court. It follows that the prosecutor's comments did not infringe on any of Defendant's substantive rights. We conclude that plain error was not committed by the court.
Id. at 224, 990 P.2d at 122; see also United States v. Perez, 86 F.3d 735 (7th Cir. 1996) (jury nullification is not a ...