This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT. FC-CR. NO. 12-1-0031.
On the briefs: Cynthia A. Kagiwada for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
By: Foley, Presiding Judge, Fujise and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Edward W. Ayau (Ayau) appeals from a Judgment of Conviction and Sentence (Judgment), entered November 4, 2013, in the Family Court of the First Circuit (family court). Judgment was entered against Ayau on four (4) counts of Sexual Assault in the Third Degree in violation of Hawaii Revised Statutes (HRS) § 707-732 (1) (b) (2014). Ayau was convicted of sexually assaulting Minor 1 and Minor 2, ages 13 and 11, respectively, at the time of trial.
On appeal, Ayau asserts the family court (1) abused its discretion in denying his motion for a mistrial after Minor 2 broke down crying on the stand and failed to complete her testimony; (2) plainly erred in denying his motion for a mistrial given allegedly egregious prosecutorial misconduct related to Minor 2; (3) plainly erred by failing to inquire into Ayau's hearing difficulties, which deprived Ayau of meaningful participation in the trial; and (4) erred by finding that Ayau's post-arrest statement to police was voluntary under the totality of the circumstances.
In its answering brief, Plaintiff-Appellee State of Hawai'i (State) points out that the indictment is deficient because all six (6) counts of Sexual Assault in the Third Degree failed to allege that Ayau was aware that he was not married to the minors, which is an attendant circumstance of Sexual Assault in the Third Degree and should have been included in the charges. State v. Arceo, 84 Hawai'i 1, 15, 928 P.2d 843, 857 (1996); State v. Muller, CAAP-10-0000225, 2014 WL 444230, 131 Hawai'i 331, 318 P.3d 621, at *1 (App. 2014) (SDO), cert denied 2014 WL 1758391. The State asks this court to adopt a standard requiring Ayau to show prejudice as a result of the deficient charges; however, as the State recognizes, the Hawai'i Supreme Court has dismissed deficient charges without prejudice, even when an appellant did not raise the issue on appeal. See State v. Armitage, 132 Hawai'i 36, 49, 319 P.3d 1044, 1057 (2014) .
Ayau contends we still must address his arguments on appeal as his points of error raise issues that may bar reprosecution on double jeopardy grounds. We agree that Ayau's assertion of prosecutorial misconduct potentially raises double jeopardy considerations and we will therefore address that point of error. We need not address Ayau's other points of error.
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 vacate the Judgment, conclude that reprosecution is not barred, and remand to the family court with instructions to dismiss without prejudice the four (4) counts of which Ayau was convicted.
Ayau's claim of Prosecutorial Misconduct Ayau contends the Deputy Prosecuting Attorney (DPA) committed egregious misconduct by purposefully calling Minor 2 to testify, even though the DPA allegedly knew Minor 2 would not be able to complete her testimony without crying, and in addition, the DPA made improper reference to Minor 2's stricken testimony during closing argument. Ayau asserts both of these arguments for the first time on appeal.
If defense counsel does not object at trial to prosecutorial misconduct, [the appellate court] may nevertheless recognize such misconduct if plainly erroneous. " We may recognize plain error when the error committed affects substantial rights of the defendant." State v. Cordeiro, 99 Hawai'i 390, 405, 56 P.3d 692, 707 (2002) (citations and internal quotation marks omitted). See also Hawai'i Rules of Penal Procedure. .. Rule 52(b) (2003) (" Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." ). We will not overturn a defendant's conviction on the basis of plainly erroneous prosecutorial misconduct, however, unless " there is a reasonable possibility that the misconduct complained of might have contributed to the conviction." State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999).
State v. Wakisaka, 102 Hawai'i 504, 513, 78 P.3d 317, 326 (2003). " [T]he decision to take notice of plain error must turn on the facts of the particular case to correct errors that 'seriously affect the fairness, integrity, or public reputation of judicial proceedings.'" State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Nevertheless, [the appellate] court's " 'power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule ...