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State v. Barrios

Supreme Court of Hawaii

December 22, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
WILLIAM E. BARRIOS, Petitioner/Defendant-Appellant.


          Benjamin E. Lowenthal for petitioner.

          Artemio C. Baxa for respondent.



          RECKTENWALD, C.J.

         William E. Barrios challenges his convictions and resulting 100-year prison sentence for numerous sexual assaults on a minor. We affirm Barrios's convictions, but vacate the sentence since the circuit court did not adequately explain its reasons for imposing multiple consecutive prison terms on Barrios, and since the court appeared to use Barrios's refusal to accept guilt as an aggravating factor in imposing his sentence. Accordingly, we affirm in part and vacate in part the Intermediate Court of Appeals' March 13, 2015 judgment on appeal and the circuit court's judgment of conviction and sentence, and remand this matter to the circuit court for resentencing before another judge.

         I. Background

         A. Circuit Court Proceedings

         On November 15, 2010, the State filed an indictment against Barrios in the Circuit Court of the Second Circuit, [1]charging Barrios with 200 felonies relating to Barrios's alleged sexual assault of two minors: Minor Daughter (MD) and Minor Son (MS). The charges relating to MD were detailed in counts 1-193, alleging sexual assault in the first degree in violation of HRS § 707-730[2], kidnapping in violation of HRS § 707-720[3], and sexual assault in the third degree in violation of HRS § 707-732.[4] The charges relating to Barrios's offenses against MS were detailed in counts 194-200, alleging sexual assault in the first degree, kidnapping, and attempted sexual assault in the first degree in violation of HRS §§ 705-500[5] and 707-730. Barrios pleaded not guilty and demanded a jury trial. Barrios's trial began on October 3, 2012, and lasted until November 15, 2012, when the jury returned its verdict.

         1. Trial

         The State's testimony at trial established that MD and MS--Mother's children from a prior marriage--were under the age of fourteen throughout the period of the alleged sexual assaults. Mother and Barrios began dating, and in 2004, they and the children moved in together.

         Mother testified that she and Barrios both used crystal methamphetamine extensively. Mother testified that during the drug use, her relationship with Barrios was often violent, once resulting in two fractured ribs after he punched her. Mother also testified that Barrios was often violent with MD.

         Mother testified that she began to observe physical interactions between Barrios and MD, which worsened as Barrios's drug use increased. Mother stated that she witnessed MD using her hands to masturbate Barrios "for years. It happened every time we used drugs." Mother also testified that she witnessed MD "put[ting] her mouth on [Barrios's] penis and giv[ing] him oral sex . . . . eight times a month minimum." MD and Mother both testified that Barrios would often force MD to watch pornography with him.

         MD further testified that beginning in the summer of 2004, Barrios "made me touch his penis with my hand. And he um, made me put his penis in my mouth and um, he um, he would um, touch my breasts and bite my breasts and he would put his mouth on my vagina too." MD testified that between July and December of 2004, this happened at least once a month, but that at other times, such as late 2005 through early 2006, it happened far more frequently, "like once a week at least."

         MD testified that on some occasions while Barrios sexually assaulted her, he used physical force on her, such as holding her down, punching her, and pulling on her hair or her neck. Both Mother and MD testified that on at least one occasion, Barrios forced them both to perform oral sex on him at the same time.

         On cross-examination, MD testified that she was not certain of the exact number of times Barrios did certain things to her, and she was "trying to estimate, but, like, conservatively estimate because I know it happened a lot."

         MS also testified to several instances in which Barrios forced MS to touch or suck on Barrios's penis. For example, MS further testified that Barrios came into MS's room, threw MS from his bed, punched MS in the stomach, and then made MS suck his penis. MS also testified that if he did not do certain things, like clean his room or train for football, Barrios would punch him. MS further testified that on one occasion, Barrios hit him on the head with a screwdriver, and on another occasion, Barrios made MS kneel on Hawaiian salt "for a long time" after MS had gotten into trouble.

         After the State completed its case, the defense rested without calling any witnesses or presenting any evidence.

         In closing, the State highlighted that Barrios's abuse of MD occurred when MD was between eight and thirteen years old, and his abuse of MS occurred while MS was between eight and ten years old. The State also highlighted that "[e]ach act of sexual penetration constitutes a separate offense."

         Barrios argued that the State's evidence consisted solely of "nonsensical, inconsistent stories, " and that the State had not produced any physical evidence of the alleged assaults. Barrios argued that the State was attempting to influence the jury by appealing to their sense of pity for the complaining witnesses: "You know what they teach you in law school: If you don't have the evidence, you show the jury the law. If you don't have the law, you show the jury the evidence. If you don't have either, you focus on emotions, passions and prejudice."

         In its rebuttal, the State responded that "[w]e're just asking you to hold this Defendant responsible based on the evidence that was presented in this case." The State also argued: "Now, when a child is physically injured and needs help, they usually go to a doctor or they go to the hospital. When a child needs spiritual healing, they go to church. When a child needs justice, they come before a jury." At this point Barrios objected based on "the inflammatory nature of these comments." The circuit court overruled the objection.

         On November 15, 2012, the jury found Barrios guilty of 146 felonies: 72 counts of sexual assault in the first degree, 72 counts of sexual assault in the third degree, and 2 counts of kidnapping. All of the charges for which the jury returned a guilty verdict related to MD; Barrios was acquitted of all of the charges relating to MS.

         2. Sentencing

         The State filed a motion for consecutive terms of imprisonment for certain of Barrios's convictions, for a total of eighty years' imprisonment.

         At the sentencing hearing, Barrios's counsel noted that Barrios had not submitted a letter of apology for the presentence investigation (PSI) report upon the advice of his counsel because he was planning to appeal his convictions. Barrios's counsel also acknowledged receipt of the PSI report and attached addendum, which included a letter written by MS and nine letters written by MS's and MD's family members.

         The State then asked the court to allow MD to speak, MD's grandmother (Grandmother) to read aloud a letter she had written, and for a letter written by MS to be read aloud. Barrios objected to MS's letter being read because it had already been submitted for inclusion in the PSI report and as such was duplicative and unnecessary. The court allowed all three of the State's requests. MD spoke of her experiences, saying, "[a]s a child in school, when we were asked to create little monsters, I always had the urge to recreate an image of [Barrios]." She referred to Barrios repeatedly as a monster and concluded by saying that she had "rise[n] above the abuse and put away the monster."

         Finally, the circuit court addressed Barrios:

Mr. Barrios, you are the nightmare that came true. 146 counts. The jury has spoken. A jury of your peers convicted you of 72 A felonies, two B felonies, 72 C felonies; and now we are here for you -- for me to pass judgment on you for the crimes you committed against your family.
Under 706-606, the Court needs to consider what kind of sentence is appropriate, and I can think of no crime as horrendous as the one that you imposed upon this family other than murder. So many A felonies. This young child was a child, a baby. I think she was eight years old when the abuse started. Eight years old, a second grader, and it went on for years and years and years. You groomed her. You used threats, You used manipulation. You used mind games. You molded her to be a victim, and I'm so proud that she's grown into such a wonderful, intelligent, smart, and strong young woman, and she will be a smart, intelligent, and strong adult when she gets older.
The history and circumstances of the crime that the Court needs to look upon can be no more serious crime than the 72 A felonies that you're looking at, a total of 146 different counts. You have no respect for the law.
You have never exhibited any kind of remorse or responsibility for any of your actions. I believe at one point I was hearing about, oh, they made up the story to get me out of the house, or something along these lines.
The Court needs to consider just punishment for the amount of felonies that you are facing. The Court needs to consider adequate deterrence for your criminal conduct. You have convictions out of California. Your life of crime started back in '85. You are a sex offender out of California and never bothered to register in the State of Hawaii.
You put a child through what I can only think is the most unspeakable, unthinkable things that a child has to go through. You introduced her to pornography, to masturbation, to fellatio, cunnilingus, you kidnapped her, held her against her will, just deviant sexual behavior, and, yes, you will be characterized as a child molester, a sexual predator because that's exactly what you are. You are a monster. You are a monster.
The State's asking for consecutive sentences. They're saying 80 years will be enough to protect the public from further crimes of you. [Barrios's counsel] is saying this is basically one big class A felony, and I should give you 20 years and let you go to prison for 20 years, and that's just punishment.
But like I said earlier, the jury has spoken. The jury convicted you of crimes of fellatio, of cunnilingus, of kidnapping, of sexual penetration, the jury convicted you of all of these crimes, all of these crimes.
I think back of the testimony that I heard over those weeks of trial, about how you started off with handjobs and pornography, oral sex on the poor victim, making her do all kinds of things to you, and I think what bothered me the most was the tandem sexual acts with the mother and the child that you made them perform, with one giving you a blowjob and the other one manipulating your testicles, and I guess when they got tired, they tag teamed and they switched positions. That was one of the most deplorable things I have ever heard of a man doing to a child and mother. A child and a mother at the same time.
You showed no remorse. You showed no remorse then, and you show no remorse now, and I know [defense counsel] has suggested that you not say anything. I respect that. That is your right. But your behavior is that of a twisted, sick person. As sick as I can think back in all my years that I've been on the bench that I have ever seen. That I have ever seen. The trauma that you've inflicted will have long-lasting effects.
Not only about you, Mr. Barrios, but about this family that you tore apart, and I'm so proud that they're trying to mend and to get themselves back together and to move on. And I'm proud that they're moving on and making something of themselves. These are wonderful children, and they will grow up to be wonderful adults. Wonderful adults.
It is the hope of this Court for the safety of all children that you should never see the outside of a prison's walls.

         The circuit court then imposed a sentence of 100 years' imprisonment[6] and required Barrios to make Crime Victim Compensation fee payments.

         B. ICA Appeal

         Barrios appealed and argued, inter alia, that (1) "The Prosecutor's comment that a child in need of justice goes to a jury was inflammatory and arose to egregious prosecutorial misconduct warranting a new trial[;]" (2) "The circuit court erred in allowing people other than [MD] to be heard and recommend Mr. Barrios' disposition at the sentencing hearing[;]" and (3) "The circuit court abused its discretion in sentencing Mr. Barrios to prison for 100 years." (Capitalization omitted).

         The ICA held that the prosecutor's remark during closing did not constitute prosecutorial misconduct when viewed in the context of the whole closing argument and that the prosecutor's comment was "a proper appeal to the jury to do 'justice' based on the evidence that was introduced during the trial."

         Next, the ICA concluded that Barrios waived any objection to Grandmother reading her letter at the sentencing hearing because he had failed to object when it was requested by the State. Even if Barrios had not waived this objection, the ICA reasoned that nothing in HRS § 706-604 precludes people other than the defendant and the victim from being heard at a sentencing hearing.

         Finally, the ICA determined that the circuit court did not abuse its discretion by imposing its sentence and by calling Barrios a "monster" and "sick" and "twisted." The ICA further concluded that the circuit court sufficiently articulated a "meaningful rationale" for the sentence in light of the factors enumerated in HRS § 706-606.

         The ICA therefore affirmed Barrios's conviction and sentence. On March 13, 2015, the ICA entered its judgment on appeal. On May 7, 2015, Barrios timely filed his application for writ of certiorari.

         II. Standards of Review

         A. Prosecutorial Misconduct

Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which 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. Misconduct of a prosecutor may provide grounds for a new trial if the prosecutor's actions denied the defendant a fair trial.

State v. Mainaaupo, 117 Hawai'i 235, 247-48, 178 P.3d 1, 13-14 (2008) (quotation marks and citations omitted).

         B. Sentencing

A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment to the litigant.

State v. Kong, 131 Hawai'i 94, 101, 315 P.3d 720, 727 (2013).

         Further, "[t]he weight to be given the factors set forth in HRS § 706-606 in imposing sentence is a matter generally left to the discretion of the sentencing court, taking into consideration the circumstances of each case." Id. (quoting State v. Akana, 10 Haw.App. 381, 386, 876 P.2d 1331, 1334 (1994)).

         III. Discussion

         Barrios's application for certiorari presents three questions:

Did the ICA gravely err when it ignored nearly thirty years of precedent and allowed the prosecutor to compare jurors to doctors and priests who care for and comfort children, and ask them to give the child witnesses "justice" by finding Mr. Barrios guilty?
Did the ICA gravely err in upholding the [sic] Judge Loo's use of non-victim statements at the sentencing hearing?
Was the imposition of 100 years of imprisonment with the hope that Mr. Barrios dies in prison an abuse of discretion that the ICA should have readily identified and remedied?

         We find that the prosecutor's remark in closing argument was improper, but harmless, and that the circuit court did not err in allowing the letters to be read during the sentencing hearing. However, we conclude that the circuit court abused its discretion in imposing consecutive sentences totaling 100 years in prison.

         A. The Prosecutor's Remark that "When a Child Needs Justice, They Come Before a Jury" During Closing Argument was Improper, but Harmless.

         In his application, Barrios argues that the following remark by the prosecutor at the end of the State's rebuttal closing argument was improper: "Now, when a child is physically injured and needs help, they usually go to a doctor or they go to the hospital. When a child needs spiritual healing, they go to church. When a child needs justice, they come before a jury." Specifically, Barrios argues that this was an appeal to the jurors' "abstract sense of justice" and diverted the jury from its duty to decide the case on the evidence presented.

         When addressing allegations of prosecutorial misconduct, we first determine whether the statements were improper and, if so, determine whether the misconduct was harmless. See State v. Tuua, 125 Hawai'i 10, 14, 250 P.3d 273, 277 (2011). "During closing argument, a prosecutor 'is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence.'" Id. (quoting State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996)). "Although a prosecutor has wide latitude in commenting on the evidence during closing argument, it is not enough that . . . his comments are based on testimony 'in evidence'; his comments must also be 'legitimate.' A prosecutor's comments are legitimate when they draw 'reasonable' inferences from the evidence." Tuua, 125 Hawai'i at 14, 250 P.3d at 277 (quoting Mainaaupo, 117 Hawai'i at 253-54, 178 P.3d at 19-20) (internal citations omitted). Finally, "it is 'generally recognized under Hawai'i case law that prosecutors are bound to refrain from expressing their personal views as to a defendant's guilt or the credibility of witnesses.'" Tuua, 125 Hawai'i at 14, 250 P.3d at 277 (quoting State v. Cordeiro, 99 Hawai'i 390, 424-25, 56 P.3d 692, 726-27 (2002)).

         We conclude that the prosecutor's remark improperly appealed to the jury's emotions. See U.S. v. Aviles-Colon, 537 F.3d 1, 24 (1st Cir. 2008) ("[I]t is improper to appeal to the jury's emotions and role as the conscience of the community.") (internal quotation marks and citation omitted). The remark, by comparing the jury to hospitals and churches, "appeared to invite the jury to base its verdict on considerations other than the evidence in the case." State v. Mars, 116 Hawai'i 125, 143, 170 P.3d 861, 879 (App. 2007) (finding that the prosecutor's comment that "[t]his community is measured by how we treat its weakest members" was improper).

         An improper statement warrants a new trial if "there is a reasonable possibility that the error complained of might have contributed to the conviction." Tuua, 125 Hawai'i at 16, 250 P.3d at 279 (quoting State v. Hauge, 103 Hawai'i 38, 47, 79 P.3d 131, 140 (2003)). To assess whether a prosecutor's improper statement was harmless, we evaluate three factors: "(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." Tuua, 125 Hawai'i at 16, 250 P.3d at 279 (internal quotation marks and citation omitted).

         We find that there was no reasonable possibility that the prosecutor's remark ...

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