NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CRIMINAL NO. 11-1-0149)
Emmanuel G. Guerrero for Defendant-Appellant.
Tracy Murakami Deputy Prosecuting Attorney, County of Kaua'i For Plantiff-Appellee.
Foley, Presiding J., Reifurth and Ginoza, JJ.
Defendant-Appellant Kekoa J. K. Krueger (Krueger) appeals from the "Judgment of Conviction and Sentence" entered August 27, 2 012 in the Circuit Court of the Fifth Circuit(circuit court). Krueger was convicted of Robbery in the Second Degree, Hawaii Revised Statutes (HRS) § 708-841(1) (a) (1993 & Supp. 2012) (Robbery 2).
On appeal, Krueger contends:
(1) the Deputy Prosecuting Attorney (Prosecutor) engaged in a continuing course of misconduct, warranting reversal; and
(2) the circuit court erred when it amended the charge of Robbery in the First Degree, HRS § 708-840(1) (a) (1993 & Supp. 2012) (Robbery 1) to Robbery 2 and denied his motion for judgment of acquittal.
On April 28, 2011, Krueger was charged with Robbery 1 and Attempted Assault in the First Degree, pursuant to HRS §§ 705-500 (1993} and 707-710 (1993). The charges arose from an incident that occurred in the early morning hours of April 6, 2011, in which Krueger and co-defendant Lurguial M. Counts (Counts) allegedly beat and robbed the Complaining Witness (CW). Counts pled guilty to Robbery 1 and Credit Card Theft. A third defendant, Niquitta Kilmer (Kilmer), testified for the state in exchange .for total immunity.
Krueger went to trial on May 7, 2012. Four days later, the state rested its case and Krueger moved for judgment of acquittal. The circuit court denied the motion but amended the charges down to Robbery 2 and Attempted Assault in the Second Degree, HRS §§ 705-500 and 707-711 (Supp. 2012). On May 15, 2012, a jury found Krueger guilty of Robbery 2 and Attempted Assault in the Third Degree. The circuit court merged the Attempted Assault charge into, the Robbery 2 charge and sentenced Krueger to ten years' imprisonment with a mandatory minimum term of six years and eight months.
II. STANDARD OF REVIEW
A. Prosecutorial Misconduct
We review allegations of prosecutorial misconduct under the harmless beyond a reasonable doubt standard. See State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999). Under this standard, we examine the record and determine "whether there is a reasonable possibility that the error complained of might have contributed to the conviction." Id. (internal quotation marks omitted.)
B. Included Offense
A trial court's determination of whether one offense is included in another is a question of law, reviewed de novo, under the right or wrong standard. See State v. Rumbawa, 94 Hawai'i 513, 515, 17 P.3d 862, 864 (2001). Trial courts must provide juries with instructions for any included offenses if the evidence provides a rational basis for a verdict acquitting the defendant of the charged offense and convicting the defendant of the included offense. See State v. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001).
C. Judgment of Acquittal
We review motions for judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the prosecution and recognizing the province of the trier-of-fact, a reasonable person might fairly conclude guilt beyond a reasonable doubt. See State v. Hicks, 113 Hawai'i 60, 69, 148 P.3d 493, 502 (2006) .
Krueger contends the Prosecutor engaged in a continuing course of misconduct by: (1) failing to timely provide the defense with discovery; (2) posing improper questions to witnesses and mishandling evidence, compelling defense counsel to object numerous times, which cast him in a negative light; (3) rolling her eyes; and (4) expressing her personal opinion about a witness's truthfulness. OB 8-18, 30
A. Failure to provide discovery in a timely fashion
Krueger contends the Prosecutor failed to provide the defense with a copy of a diagram and incident report in violation of Hawai'i Rules of Penal Procedure (HRPP) Rule 16(b) (1) (iii), depriving him of the opportunity to fully prepare for trial. HRPP Rule 16(b)(1)(iii) provides:
(b) Disclosure by the Prosecution.
(1) Disclosure of Matters Within Prosecution's Possession. The prosecutor shall disclose to the defendant or the defendant's attorney the following material and information within the prosecutor's possession or control:
(iii) any reports or statements of experts, which were made in connection with the particular case or which the prosecutor intends to introduce, or which are material to the preparation of the defense and are specifically designated in writing by defense counsel, including results of physical or mental examinations and of scientific tests, experiments, or comparisons[.]
The diagram was prepared by the manager of the bar patronized by CW before the incident. The incident report was prepared by the security guard of the hotel where CW lodged. Neither document is a report or statement of an expert. Neither document was entered into evidence. Therefore, the prosecutor did not violate HRPP Rule 16(b)(1)(iii) and we discern no prosecutorial misconduct.
B. Improper questions and mishandling evidence
"[A]lthough no single misstatement or other erroneous remark standing alone [may] have sufficient prejudicial weight to deprive the defendant of a fair trial, the cumulative weight of such errors may create 'an atmosphere of bias and prejudice which no remarks by the trial court could erase.'" State v. Pemberton, 71 Haw. 466, 475, 796 P.2d 80, 84 (citation and internal quotation marks omitted).
Assuming arguendo there was prosecutor misconduct, we consider "whether the cumulative effect of prejudicial conduct going to the issue of guilt is so strong that it overcomes the presumption that the curative remarks of the court have rendered the prejudicial remarks harmless." Id. at 476, 796 P.2d at 85 (citation and internal quotation mark omitted). While it is difficult to assess misconduct based on a series of actions, "the number of instances and the tenor of the exchange between judge and counsel [may] evince a premeditated pattern of improper questioning and an effort to alert the jury to the existence of inadmissible evidence." Id.
The following exchange occurred while the Prosecutor was questioning Thomas Hemingway, M.D. (Dr. Hemingway), the doctor who treated CW's injuries:
[Prosecutor]: [Dr. Hemingway] does the type of wound that you treated in observed with regards to [CW] on his head area, is that consistent with being shoved into a wooden structure with an edge to it?
[Dr. Hemingway]: Yes, it is.
[Defense Counsel]: Your Honor, I would object. Foundation.
THE COURT: Sustained.
[Defense Counsel]: And I would move to strike the question as well as the answer.
THE COURT: All right. The Court is striking the question and the response. The jurors are to disregard the last question by the attorney and the response by the witness.
[Prosecutor]: Your Honor, at this time, I move to have the doctor declared as an expert in the field of medicine with a specialty of emergency room.
THE COURT: There being no objection, the Court here by qualifies Dr. Hemingway as an expert in the area of emergency medicine.
[Prosecutor]: May I ask the question again now?
THE COURT: You can. And then we'll see what happens.
[Prosecutor]: Very well.
[Prosecutor]: [Dr. Hemingway], with regards to the head injury that you observed in this case, is it consistent with being an injury that was received from being shoved into a wooden structure?
[Defense Counsel]: Your Honor, again, I would object on foundation.
THE COURT: Sustained.
[Defense Counsel]: Your Honor, I would again move to strike the prosecuting attorney's same question that was previously stricken.
[Prosecutor]: Your Honor.
THE COURT: So ordered. The Court is striking the last question. The jurors are to disregard that question.
(The following was held at the bench out of the hearing of the jury.)
[Prosecutor]: Your Honor, I'm at a loss as to what it is that is a lack of foundation.
THE COURT: [Prosecutor] just because he's qualified in the area of emergency medicine doesn't make him qualified to testify as to whether falling into a structure resolved [sic] in that laceration.
[Prosecutor]: If he's a doctor and I have him testify as to the type of injuries people would receive, also under Rule I believe 702 are qualified and it goes to the weight Of evidence.
THE COURT: Lay the proper foundation. Lay the proper foundation. Leave it at that. Thank you. Thank you.
(At which time the bench conference concluded.)
THE COURT: Thank you, Dr. Hemingway.
[prosecutor]: [Dr. Hemingway], how many times approximately have you treated injuries to -- lacerations to the head?
[Dr. Hemingway]: Hundreds of times.
[Prosecutor]: And in those experiences, have you as part of making an assessment and diagnosis as to how the injury was received, do you attempt to find out what it is that caused the instrument -- that caused the injury?
[Dr. Hemingway]: I typically would ask that question of the patient.
[Prosecutor]: Yes. Have you received training and/or experience in the types of instruments that can cause injuries to the forehead?
[Dr. Hemingway]: Yes.
[Prosecutor]: And does that include lacerations sustained to the forehead?
[Dr. Hemingway]: Yes.
[Prosecutor]: And based upon your training and experience, are you able to answer whether this injury is consistent with having been received by being shoved into a wooden structure with an edge to it?
[Defense Counsel]: Your Honor, I would object. Same grounds. I would ask that it be stricken. And I would ask to approach.
THE COURT: Granted. And I'll request, [Defense Counsel], the Court is striking that last question by the [Prosecutor] The jury is to disregard it. Dr. Hemingway, thank you.
(The following was held at the bench out of the hearing of the jury.)
[Defense Counsel]: Your Honor, I move for a mistrial based on cumulative prosecutory misconduct. Your Honor, the prosecutor has stated that three times now, three times she has asked the same questions that the damage to the head was caused by the --by the planter. Your Honor, it is -- you cannot unring the bell three times now.
[Prosecutor]: Your Honor, this is a foundational question. If you look at the question that was asked by me, it was are you able to answer the question. Because Your Honor said that I lacked foundation. This is an attempt to gain foundation. I've asked that question in order to attempt to do such.
THE COURT: Not by asking leading questions and telling the doctor is this consistent with someone falling into a planter, not to mention your last two questions to the doctor, they're not relevant.
[Prosecutor]: Your Honor, I am attempting to lay the foundation in asking the question. If you look at the last question I asked, the last question had to do with based upon his training and experience, is he able to answer the question as to whether this was consistent with having been caused by a wooden structure with a sharp edge. That's what the question was. It was a foundational question.
THE COURT: You have not laid the proper foundation. That's the Court's ruling.
[Prosecutor]: But that's the foundational question.
THE COURT: Don't argue, [Prosecutor]. Lay the proper foundation.
[Defense Counsel]: Your Honor, I would move for a mistrial, Your Honor. We're getting to the point, judge, if we start from the beginning, I'm not -- I'm going to start from the beginning and end here. We're not going in between. My opening statement, I was stopped at the first . minute. It was here at the bench approximately five minutes -- forget about all that. Three times she told the jury ...