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State v. Bruce

Supreme Court of Hawaii

October 9, 2017

STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee,
LAWRENCE L. BRUCE and JUSTIN MCKINLEY, Respondents/Defendants-Appellants.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000439; CAAP-15-0000477; CR. NO. 14-1-0987)

          Sonja P. McCullen for petitioner.

          Benjamin R.C. Ignacio for respondent Justin McKinley.

          Jon N. Ikenaga for respondent Lawrence L. Bruce.



          NAKAYAMA, J.


         Petitioner/Plaintiff-Appellee State of Hawai'i (the State) charged Respondent/Defendant-Appellant Lawrence L. Bruce (Bruce) and Respondent/Defendant-Appellant Justin McKinley (McKinley) with offenses arising from their alleged involvement in and benefit from the activities of a prostitute, the complaining witness (CW). After being tried as co-defendants in the same jury trial, the jury found Bruce guilty of promoting prostitution in the second degree, and found McKinley guilty of promoting prostitution in the first degree.

         Bruce and McKinley appealed, arguing, inter alia, that their trials were tainted by prosecutorial misconduct. The Intermediate Court of Appeals (ICA) held that one of the prosecutor's comments during rebuttal closing argument constituted misconduct, and that such misconduct was not harmless beyond a reasonable doubt. Thus, the ICA vacated Bruce's and McKinley's convictions and remanded their cases for new trials.

         For the reasons stated below, we conclude that the prosecutor's comments during rebuttal closing argument did not constitute misconduct. Although the prosecutor's comments could be interpreted as appealing to the jury's passions and prejudices when viewed in isolation, we believe that the comments, properly analyzed in context, were relevant to the fundamental issues at trial. Consequently, the comments were not improper.

         Accordingly, as to Bruce, we reverse the ICA's November 17, 2016 judgment on appeal filed pursuant to its October 20, 2016 memorandum opinion, which vacated the Circuit Court of the First Circuit's (circuit court) May 5, 2015 judgment of conviction and sentence and remanded the case for a new trial. As to McKinley, we reverse the ICA's September 29, 2016 judgment on appeal filed pursuant to its August 31, 2016 memorandum opinion, which vacated the circuit court's May 5, 2015 judgment of conviction and sentence and May 5, 2015 mittimus and warrant of commitment to jail, and remanded the case for a new trial.


         A. Circuit Court Proceedings[1]

         On June 17, 2014, Bruce was charged with one count of promoting prostitution in the first degree in violation of Hawai'i Revised Statutes (HRS) § 712-1202(1)(a) and one count of sexual assault in the first degree in violation of HRS § 707-730(1)(a). McKinley was charged with one count of promoting prostitution in the first degree in violation of HRS § 712-1202(1)(a), two counts of sexual assault in the first degree in violation of HRS § 707-730(1)(a), and one count of kidnapping in violation of HRS § 707-720(1)(d). Bruce and McKinley were tried as co-defendants at the same jury trial.

         CW was one of the witnesses who testified on behalf of the State. CW testified that she came to Honolulu, Hawai'i from San Diego, California on April 1, 2014. She attested that her initial purpose for coming to Hawai'i was to earn money through prostitution so she could return home to Alaska. CW stated that her former pimp, Lando, had advised her to go to Hawai'i.

         CW testified that after arriving in Hawai'i, she went to a hostel in Waikîkî, where she met a man named "L-Way" for the first time. CW identified Bruce as L-Way at trial. CW testified that upon meeting Bruce, Bruce informed CW of the sexual services that she was to provide and the prices that she was to charge therefor. CW also attested that during their initial discussions, Bruce instructed CW on how she was to dress, act, and speak if she were to walk the streets as a prostitute.

         CW testified that rather than walking the streets, it was determined that she would solicit clients via her internet advertisement on a website called Backpage. CW attested that she had previously posted a Backpage advertisement for sexual services in San Diego, and that Bruce used his iPad to re-post and update her advertisement to reflect her relocation to Hawai'i. CW stated that Bruce paid $5 to promote her advertisement by "bring[ing] it to the top" of the list of advertisements on the website.

         CW attested that she and Bruce then had sexual intercourse as a way of "initiating that [she was his] girl now." She testified that after they had intercourse, Bruce said "[t]hat [she] was his girl now." CW stated that after becoming Bruce's "girl, " she "work[ed] for him now."

         CW testified that she stayed at the hostel for about ten or eleven days with Bruce, Jennie Ortegon (the mother of Bruce's son), and his son. She testified that while she stayed at the hostel, Bruce was "[r]ight there with [her]" and did not leave her alone. CW attested that in addition to the room in which CW, Bruce, and his family slept, Bruce rented a separate room at the hostel, which was solely used for dates with clients.

         CW testified that during her stay at the hostel, she provided sexual services for one client. CW attested that she gave all of the money that she received from the client to Bruce, because she "became his girl" and "when you do prostitution, you give the guy the money. And if you don't, then . . . [y]ou can serve consequences . . . [like] [g]et[ting] beat up."

         CW testified that on or about April 11, 2014, she and Bruce left the hostel and relocated to a Best Western hotel per McKinley's recommendation. She stated that before leaving the hostel, Bruce had asked CW to give her I.D. and social security card to him so she "wouldn't be able to go nowhere." CW testified that she complied with Bruce's request; upon arriving at the Best Western, Bruce did not return her I.D. or social security card to her.

         CW testified that when she arrived at the Best Western, Bruce introduced her to McKinley, another pimp, and Keshawn Stewart (Stewart), who was also a prostitute. CW, Bruce, McKinley, and Stewart stayed in the same hotel room together. CW testified that during her two-week stay at the Best Western, she earned about $1, 000 by providing sexual services to clients, but she turned all proceeds over to Bruce.

         On April 13, 2014, CW and Stewart received a call from a customer who requested two prostitutes to meet him at the Executive Centre Hotel (Executive Centre). CW testified that she told Stewart that she "didn't think that [they] should go on that date because . . . the guy sounded funny, like he was a cop." She stated that Bruce, who was sitting next to her when she expressed her concerns to Stewart, told her that "[h]e wanted [CW] to go on that date."

         CW attested that after they met the customer at the hotel room in the Executive Centre, the customer gave $700 to Stewart. CW testified that after he placed the cash in Stewart's hand, the customer excused himself to go to the restroom. Subsequently, police entered the room and arrested Stewart and CW. The "customer" was actually a police officer from the Honolulu Police Department (HPD), who had contacted CW and Stewart as part of an undercover investigation and sting operation.

         Following her arrest, CW spoke to HPD Officer Lovinna Kaniho (Officer Kaniho) at the Executive Centre. Officer Kaniho asked CW if she needed help getting out of prostitution. CW testified that she refused help at the time because when Officer Kaniho had spoken to her, Stewart was present. CW stated that she was concerned that if she accepted Office Kaniho's help, Stewart would inform Bruce and McKinley that CW had agreed to help the police. Subsequently, CW and Stewart were taken to jail. CW was released on bail the next morning, and returned to the Best Western.

         CW testified that after she was arrested on April 13, 2014, she did not want to engage in prostitution anymore. CW explained that she was selling her body for money, and she felt like she "was somebody's property." She attributed her feelings to Bruce's "pimp demeanor." CW described Bruce's "pimp demeanor" as follows: "[If] you do something wrong, you're going to get beat, or you're just out here making money for [him] and giving it to him. He just had that demeanor." CW stated that despite her reservations, she felt like she "had to" keep prostituting because she "wanted to go home" and because she "didn't want to get beat up."

         CW attested that on April 18, 2014, she went to the Ala Moana Shopping Center to buy new clothes. She testified that she needed to ask Bruce for permission to go to the mall, and that she remembered asking him, through text message: "Daddy, can I go with [Stewart] to the mall, please?" She stated that she called Bruce "Daddy" because "that's what girls call their pimps."

         CW testified that while she was at the mall, Bruce kept in contact with her via text message, and told her to "make sure [she] tell him [sic] every place that [she] go [sic] or what [she's] doing." CW also stated that Bruce, by text, told her to take a picture of what she was wearing that day, because "there was money" around the mall. CW testified that she understood his comment to mean that she was to look for dates.

         CW attested that on or around April 18, 2014, Bruce left the Best Western for a few days and did not return. CW testified that McKinley then called Bruce and told him that CW was "going to become his girl now since [Bruce's] gone and left [her] behind." CW stated that at that point, she "bec[a]me [McKinley's] property." Bruce returned to the Best Western on April 19, 2014 and turned over CW's I.D. and social security card to McKinley. CW stated that after that date, she made over $1, 000 by going on dates with clients. CW testified that she turned over all of her earnings to McKinley because she "was his property, " and that McKinley treated her "[l]ike property."

         After staying at the Best Western for two weeks, CW relocated to the Pagoda Hotel (Pagoda) with McKinley and Stewart. At the Pagoda, there was an incident where McKinley beat CW by hitting her face and legs and choking her. Bruce was present during the incident and took a video recording of it on his cell phone.

         The video of the incident was entered into evidence without objection, and was played for the jury. In the video, as he was hitting CW, McKinley said, inter alia, that CW was "costing everybody money, " that she was "costing [him] money with [her] games, " and that CW was to "[g]et money by all means necessary." After remarking that calls to CW's phone were being sent to voicemail, McKinley said: "I'm going [to] beat your brains."

         CW testified that while she did not know why McKinley had beaten her that day, she believed that when McKinley, in the video, referred to calls going to voicemail, he was likely referring to calls from clients that CW did not answer. CW attested that at the time, she was not answering calls to her cell phone in response to her Backpage advertisement because she "didn't want to prostitute no more."

         CW stated that on May 13, 2014, after attending a hearing related to her arrest in April 2014, she went to Queen's Medical Center because she was not feeling well. She was admitted to the hospital after a urine test revealed that she was three months pregnant. After leaving the hospital, CW went to a safe house and ...

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