As Amended January 7, 2015.
On the briefs:
Summer M. M. Kupau, Deputy Public Defender, for Defendant-Appellant.
James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
NAKAMURA, C.J., and FOLEY and REIFURTH, JJ.
[134 Hawai'i 290] NAKAMURA. C.J.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Peter David (David) with second-degree murder (Count 1) and second-degree assault (count 2). The State alleged that on or about January 2, 2011, David fatally stabbed his cousin, Santhony Albert (Albert), and assaulted Torokas Kikku (Kikku) with a dangerous instrument. David and Albert had been drinking before the charged murder.
At trial, David argued that he had stabbed Albert in self-defense. The jury returned guilty verdicts on the included offenses of manslaughter and third-degree assault. The Circuit Court of the First Circuit (Circuit Court) sentenced David to twenty years of
[134 Hawai'i 291] imprisonment on Count 1 and one year of imprisonment on Count 2, with the terms to be served concurrently.
David appeals his convictions and sentences. In challenging his convictions, David argues that the Circuit Court abused its discretion (1) in permitting Kikku to testify about statements made by David that were not disclosed to the defense prior to trial, and (2) in permitting the State to call two rebuttal witnesses, who David contends should have been called in the State's case-in-chief.
We hold that the Circuit Court did not abuse its discretion in determining a remedy for the State's discovery violation and in permitting the State to call rebuttal witnesses. We therefore affirm David's convictions.
David also challenges his sentences. At sentencing, the prosecutor highlighted the fact that David is from Chuuk, Micronesia. The Prosecutor then stated that " we're talking Micronesians who get inebriated on alcohol, then become violent with their own family members, their own friends and they involve knives." The Prosecutor urged the Circuit Court to impose a sentence of twenty years of incarceration on David to " send a message to the Micronesian community" that such behavior " is not acceptable in the laws of the United States and the State of Hawaii." David argues that these remarks not only constituted prosecutorial misconduct, but impermissibly affected the Circuit Court's sentence and require that David's sentences be vacated.
We hold that a defendant's race, ethnicity, or national origin cannot be used as a justification for the imposition of a harsher penalty on the defendant. Although we do not believe that the Circuit Court accepted or based its sentence on the prosecutor's improper arguments, " justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11, (1954). Given the prosecutor's emphasis of David's Micronesian heritage in his sentencing recommendation, and the highly improper nature of the prosecutor's arguments, we conclude that to satisfy the appearance of justice, the Circuit Court was required to make its repudiation of the prosecutor's arguments clear on the record. Under the circumstances of this case, we conclude that the Circuit Court's response to the prosecutor's arguments was not sufficiently definitive to satisfy the appearance of justice. Accordingly, we vacate David's sentences.
The undisputed evidence established that in the early morning hours of January 2, 2011, David fatally stabbed his cousin Albert just outside of Kikku's Waipahu apartment. Both had been drinking heavily. When Kikku, Albert's aunt, attempted to prevent David from further harming Albert, a scuffle between David and Kikku ensued.
The main disputed issues at trial were whether David or Albert was the first aggressor and whether David acted in self-defense. A related disputed fact was whether David had been invited to Kikku's apartment.
Defense counsel learned during the State's opening statement and the State's questioning of Kikku that the State intended to introduce two statements made by David to Albert and overheard by Kikku, which had not been disclosed prior to trial. Defense counsel argued that the State violated its discovery obligations by failing to disclose the statements. To remedy the discovery violations, the Circuit Court offered continuances to the defense as well as opportunities to interview Kikku. Notwithstanding these remedies, David sought to exclude the statements, or in the alternative, moved for a mistrial. The Circuit Court found the remedies it provided were adequate and admitted the statements over David's objection.
We begin by focusing on the circumstances relevant to the discovery issue and then continue with the other pertinent evidence presented
[134 Hawai'i 292] at trial, including the evidence presented in rebuttal.
The prosecutor presented the State's opening statement on September 28, 2011. The prosecutor explained to the jury that while at Kikku's Waipahu apartment, David and Albert were drinking and " play wrestling" to determine who was the better fighter. However, at some point the two men began to argue. The prosecutor explained that Kikku and Arlynn Ewen (Ewen), David's cousin, noticed a cut on David's nose, and the prosecutor referred to the following statement that David made to Albert:
Well, they notice that [David] had this cut over his nose, and he was apparently upset about it, and it appeared to them that he was upset about it because through their play wrestling or whatever they were doing, he got this cut on his nose, and he was telling [Albert], Nobody does this to me, make me look like this, beat me up.
At the close of the State's opening statement, defense counsel requested a bench conference and objected to the prosecutor's reference to David's statement on the ground that it had not previously been disclosed. Defense counsel stated:
That's nowhere in the discovery. It's not in the statements of the eyewitnesses. It's not in the statements to the police. It's not in the statements of preliminary. It's nowhere in the discovery, and this has not been disclosed to us.
These are statements by the defendant, which if they intended to use, should have been disclosed to the defense.
In response, the prosecutor explained that he understood the obligation to disclose statements in discovery pertained to " statements that are given as a matter of recorded statements and so forth[,]" but not to statements that his witnesses mention in the course of a discussion with him.
The Circuit Court stated that it believed the " remedy at this juncture [was] not to preclude [David's statement], but the remedy [was] to give [defense counsel] ample opportunity to prepare if need be." The prosecutor identified Kikku as the witness who would testify about David's statement. The Circuit Court offered to make Kikku available so that defense counsel and his investigator could question her before defense counsel made his opening statement and to postpone defense counsel's opening statement until the following morning. The Circuit Court told defense counsel, " You just tell me what you want to do." Defense counsel declined the Circuit Court's offer to postpone his opening statement, but requested the opportunity to interview Kikku and explore what other alternatives he had.
In his opening statement, defense counsel proceeded to lay out David's claim of self-defense. Defense counsel stated: " What the evidence will show is that this incident came down to a split-second decision, a split-second choice between either getting beaten up by a drunken [Albert], or having to defend against a drunk [Albert]. [David] chose to defend himself against a drunk [Albert] on New Year's night." Defense counsel asserted that the evidence would show that Albert initiated the fight, that David found himself on the ground being attacked, and that at some point, David hit back and the attack stopped.
On Thursday, September 29, 2011, the evidentiary portion of trial commenced. The State called two witnesses before calling Kikku to testify in the afternoon. Prior to Kikku taking the stand, the Circuit Court asked defense counsel if he had ample opportunity" to speak with Kikku. Defense counsel responded affirmatively. Defense counsel indicated that based on his interview with Kikku, it appeared that Kikku had disclosed David's purported statement -- " Nobody does this to me, make me look like this, beat me up" -- to the prosecutor on July 7, 2011, and then went over that statement again with the prosecutor on September 25, 2011. Defense counsel asked the Circuit Court to exclude the statement based on " unfair surprise."
[134 Hawai'i 293] The Circuit Court denied defense counsel's request, on the grounds that it had given defense counsel " ample opportunity to question Kikku" and was willing to give defense counsel " any additional time to prepare if need be."
Kikku stated that her native language is Chuukese, but that she spoke and understood some English. Kikku testified in part through an interpreter over the course of three days.
According to Kikku, a number of relatives attended a party at a relative's home in Kalihi on January 1, 2011. The attendees included herself and her boyfriend Erick Sam (Sam), Ewen and her husband Jino Moses (Moses), David, and Albert. At this Kalihi party, the men were drinking heavily. A fight broke out between Moses and another male relative, at which time Kikku decided that it was time to return home. Albert then drove Kikku, Sam, Ewen, and Moses to Kikku's apartment in Waipahu.
Kikku testified that before leaving the Kalihi party, David spoke to Albert. The prosecutor then asked, " What did they say? What happened?" Defense counsel objected and a bench conference ensued.
At the bench conference, the prosecutor proffered that Kikku's anticipated testimony would be that " [David] told [Albert] I want the beer that you have in your car. And [Albert] said, no, you can't have the beer. And [David] was upset about it." (Emphasis added.) Defense counsel responded that the proffered statement by David was " a brand new statement" that had not been disclosed in discovery. Defense counsel asserted that the statement " I want the beer" served to " create argument for motive of why [David] would get into conflict with the decedent in this case [ ]" and described it as " a loaded statement" that should have been disclosed.
The Circuit Court ruled that the State should have disclosed David's statement regarding his wanting beer pursuant to Hawai'i Rules of Penal Procedure (HRAP) Rule 16, which requires disclosure of the substance of any oral statement made by the defendant. The Circuit Court noted, however, that based on the parties' opening statements, there would be other evidence establishing that David and Albert were upset with each other and that alcohol was involved in the case. The Circuit Court denied David's motion for mistrial, concluding that the State's failure to disclose " can be cured by a continuance of the matter so that it gives [the defense] ample time to prepare." The Circuit Court recessed the trial for the remainder of the day, and it directed Kikku to remain in the courthouse so that defense counsel could talk to her. It was in the morning on Friday, September 30, 2011, when the Circuit Court recessed the trial, and trial did not resume until the following Monday.
When Kikku resumed her testimony the following Monday, she testified that Albert had cans of beer with him but she did not remember how many. The prosecutor then questioned Kikku about whether David had asked Albert for beer before she and the others left the Kalihi party in Albert's car. Kikku testified as follows:
Q. . . . [B]efore you left [the Kalihi party], did [David] ask for any beer?
Q. What did he ask for?
A. He tell [Albert] to give him the beer. [(David objected and was overruled)]
Q. Okay. When you say the beer, do you mean all the beer or one beer, how much beer?
A. The whole beer.
Q. The -- all the ...