FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000935;
CR. NO. 12-1-0127)
William H. Jameson, Jr. for defendant-appellant
Fudo for plaintiff-appellee
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
OPINIONOF THE COURT EXCEPT AS TO PART III(D)(3) AND
OPINION OF NAKAYAMA, J., AS TO PART III(D)(3), IN WHICH
RECKTENWALD, C.J., JOINS
Gerald L. Austin (Austin) appeals the judgment of the Circuit
Court of the First Circuit (circuit court) convicting him of
murder in the second degree and sentencing him to an extended
sentence of life imprisonment without the possibility of
parole. On appeal, Austin asserts five points of error: (1)
the circuit court abused its discretion in allowing
Plaintiff-Appellee State of Hawai'i (the State) and its
witnesses to refer to Edith Skinner (Skinner) as the
"victim" or "murder victim" at trial; (2)
the circuit court erred in excluding the statements of Anne
Wanous (Wanous) as hearsay; (3) the circuit court erred in
refusing to instruct the jury on the lesser included offenses
of manslaughter and assault; (4) the circuit court erred in
denying Austin's motion for a new trial because the
prosecutor engaged in several acts of misconduct during
closing arguments; and (5) the circuit court erred in
sentencing Austin to an extended sentence of life
imprisonment without the possibility of parole in violation
of the ex post facto clause of the United States
Constitution and Hawai'i Revised Statutes (HRS) §
reasons discussed below, we agree that Austin's extended
sentence of life imprisonment without the possibility of
parole violated the ex post facto clause of the
United States Constitution and HRS § 1-3. But, we
conclude that Austin's other points of error do not
warrant vacating his conviction. Therefore, we affirm in part
and vacate in part the circuit court's June 18, 2014
Judgment, Guilty Conviction, and Sentence and remand the case
to the circuit court for resentencing.
was born on April 16, 1908, and was eighty-one years old at
the time of her death in 1989. Skinner did not have any
family in Hawai'i, but she had a son, Stephen Skinner,
who lived in California and with whom she spoke every
weekend. Skinner had several close friends and enjoyed
baking, playing bridge, and swimming at the Elks Club.
lived alone in Apartment 706 at the Makua Ali'i Senior
Center located at 1541 Kalakaua Avenue, which was generally
restricted to low-income tenants over the age of sixty-two.
In 1989, the building was secured by an interphone system
whereby visitors would call the apartment that they wanted to
visit and the resident could let them in. Upon entering the
building, visitors could access any floor they wanted.
afternoon of July 25, 1989, Skinner's body was discovered
in her apartment after two neighbors noticed that she had not
picked up the newspaper from her front door and that she did
not respond when they rang her doorbell. Her body was found
lying on top of the bed. The bed did not have any pillows,
blankets, sheets or comforters on it. The apartment was
well-kept, and there were no obvious signs that a struggle or
an altercation had taken place.
his investigation of Skinner's death, Honolulu Police
Department (HPD) Detective Kenneth Ikehara (Detective
Ikehara) canvassed the Makua Ali'i building for witnesses
and interviewed several of Skinner's neighbors. Pursuant
to these efforts, on July 26, 1989, Detective Ikehara spoke
to Wanous and took her recorded statement. Wanous's
mother lived in the unit next to Skinner's, and Wanous
was visiting on the date of the incident.
recorded statement, Wanous stated that she woke up at
approximately 4:50 a.m. or 5:00 a.m. on the morning of July
25, 1989 to smoke a cigarette at a chair and table located
"right outside [her] mother's apartment door."
Wanous related that she was "leaning forward" and
smoking the cigarette when she heard the sound of
"something dropping." Upon hearing the noise,
Wanous looked to the right and saw a black male carrying two
stuffed pillow cases leave Skinner's apartment. Wanous
averred that she saw the man near the door to Skinner's
apartment for about three to five seconds before he turned
and walked into the elevator.
stated that when she observed the man, the corridor lights
were on, but it was still dark out and there was no sunlight.
Wanous noted that although she "seen the [man's]
arms was black," she "couldn't make out"
the man's face "because it was just one color all
the way." She also stated that when the man briefly
turned towards her, she could see "the whites of his
eyes" but "couldn't see anything else."
When asked by Detective Ikehara if Wanous could tell what the
suspect's race was, Wanous responded that the suspect was
"black," but further related an unknown individual
had "corrected" her to say "negro." Upon
being asked about the suspect's "complexion,"
Wanous rejected the idea that the suspect was "black,
black" and instead described that the suspect was
"dark." Wanous opined that she was not sure if she
would be able to recognize the man if she saw him again.
also discussed a few sketches of the suspect she had drawn on
a paper bag, which she had given to Detective Ikehara. She
stated that a "feeling" helped guide her as she
[Wanous:] So I was told this is wrong.
[Detective Ikehara:] Who, what do you mean? This looks wrong,
just tell me.
[Wanous:] It's a feeling that come to me.
[Detective Ikehara:] Feeling that came to you, okay. So this
drawing is what, of the guy that you saw?
[Wanous:] I think I saw.
[Detective Ikehara:] Okay.
[Wanous:] Something kept telling me, sketch it, sketch it,
sketch it, you know, I'm not a very good artist, but
this, sketch it, sketch it, (inaudible) sketch it.
Ikehara then attempted to clarify what Wanous meant:
[Detective Ikehara:] Well, and that just, you just decided
something was telling you to do, draw this?
[Wanous:] Yeah, you know, did that.
[Detective Ikehara:] Okay.
[Wanous:] Help my hand and sort of did that, guided like.
[Detective Ikehara:] And that's on the second drawing?
July 26, 1989, Wanous met with police sketch artist Joe
Aragon (Aragon) to prepare a composite drawing of the suspect
before Detective Ikehara took her recorded statement. When
Detective Ikehara asked Wanous if she could state that the
suspect looked like the composite drawing she helped create,
she said "[n]o." She only confirmed that the sketch
matched her descriptions of the suspect's hair, eyes, and
26, 1989, Detective Ikehara obtained a written statement from
Wanous's sister, Orchid Ah Loy (Ah Loy), in which she
stated that Wanous's other sister, Yvonne Clason
(Clason), had told her (Ah Loy) that Wanous had told Clason
that she saw a black male exit Apartment 706 "on either
Monday, 7-24-89, or Tuesday, 7-25-89, at about 0530
hours," and that the man "was carrying a pillow
case." The next day, Detective Ikehara took the recorded
statement of Karen Evenson (Evenson), Wanous's niece,
wherein she stated that Wanous "told her that a black
male carrying pillow cases had exited unit #706 at about 0530
hours, Tuesday, 7-25-89."
26, 1989, Dr. Kanthi De Alwis (Dr. De Alwis) performed an
autopsy on Skinner's body. Dr. De Alwis determined that
the cause of death was asphyxia due to manual strangulation.
Dr. De Alwis further testified that she recovered a
"black or darker-colored" pubic hair that stood out
amongst Skinner's light-colored hair, which she preserved
as evidence. Dr. De Alwis also took samples of fluid found in
the decedent's vagina, the testing of which revealed the
presence of recently deposited semen.
August 3, 1989, Detective Ikehara submitted a draft of a
crime information bulletin. The composite drawing that Wanous
and Aragon had created was not submitted with the crime
information bulletin based upon Aragon's opinion that the
drawing did not reflect an accurate description of the
suspect, as Wanous was not able to sufficiently describe
enough elements of the suspect's facial features. Copies
of the crime information bulletin were subsequently printed
September 21, 1989, Allyson Simmons (Simmons), an examiner in
the Hair and Fibers Unit in the Fedural Bureau of
Investigation laboratory located in Washington D.C., received
a parcel containing the dark-colored pubic hairs that Dr. De
Alwis had collected from Skinner's body. Then, on January
26, 1990, Simmons received another parcel containing samples
of Skinner's pubic hairs. Simmons testified that
following a microscopic examination of the darker-colored
hairs, she determined that the hairs were "brown
Caucasian pubic hairs that were suitable for comparison
purposes." Further, Simmons attested that a microscopic
comparison of the "brown Caucasian pubic hairs"
with samples of Skinner's pubic hairs revealed that the
"brown Caucasian pubic hairs" were
"dissimilar" to Skinner's pubic hairs.
October 1991, Wanous passed away.
testing conducted in 2005 on the fluid samples collected from
Skinner's body revealed that the samples contained a
mixed DNA profile with two contributors: Skinner and an
unknown male. The unknown DNA profile was uploaded to the
Hawa i i State DNA database on February 10, 2006. On June 2,
2011, the database reported a match between the unknown DNA
profile and Austin's DNA profile. On January 18, 2012,
the police collected DNA evidence from Austin via buccal
swabs pursuant to a search warrant. Testing of the swabs
conducted the next day confirmed that the unknown DNA profile
in the fluid samples from Skinner's body matched
Austin's DNA profile.
January 20, 2012, police detectives took Austin's
recorded statement. Therein, he stated: (1) he was familiar
with the 1541 Kalakaua Avenue address because his grandmother
used to live there and he had visited her two to three times
a month over six to seven years; (2) he remembered that his
grandmother lived on the sixteenth floor; (3) upon being
shown Skinner's photograph, he did not recognize her; (4)
he did not recognize the name "Edith Skinner"; (5)
he had never been inside Skinner's apartment; (6) he
never had sexual relations with Skinner or with anyone else
inside the Makua Ali'i building; and (7) he did not
injure Skinner, cause her death, or take any items from her
residence. He also stated that he did not recall where he was
on July 25, 1989.
Circuit Court Proceedings
January 25, 2012, Austin was indicted by a grand jury for
murder in the second degree.
23, 2013, Austin filed a motion to dismiss for pre-indictment
delay. He argued that the twenty-two year delay between the
date of the alleged offense and the date of the indictment
prejudiced him due to the loss of an exculpatory witness,
Wanous, who was no longer available to testify because she
was deceased. He asserted that "Wanous's testimony
would have provided actual exculpatory evidence for
Defendant" because she would have testified that she
"observed a black male exit [Skinner's] apartment at
about 0500 hours on July 25, 1989, carrying two pillow
cases" and that "Wanous was able to describe the
black male's physical features with great specificity:
19-25 years old, 5'8", slim build, short kinky dark
colored hair, dark eyes, dark complexion; no glasses and not
[sic] facial hair."
State countered that Wanous's statement was not a strong
source of exculpatory evidence. The State pointed out that
Wanous observed the suspect at 5:00 a.m. when "the sun
had not yet risen and it was dark" and that at the time,
she was smoking a cigarette and "was not focused on Unit
706 and only caught a fleeting look at the man." The
State also observed that Wanous "provided nothing more
than a generalized suspect description" and that
"[w]hen she spoke with Detective Ikehara . . . she
handed him a sketch of two figures on a paper bag. These
sketches, she claimed, were prompted by a 'feeling'
she had to draw." The State emphasized that the sketches
were fairly unsophisticated and devoid of facial features. At
a hearing on the motion held on August 6, 2013, a transcript
of Wanous's recorded statement and copies of her sketches
were entered into evidence.
December 4, 2013, the circuit court issued its findings of fact,
conclusions of law, and order denying Austin's motion to
dismiss for pre-indictment delay. The circuit court found,
inter alia: (1) during Wanous's recorded
statement, she "said that she was unsure whether she
would be able to recognize the man if she saw him
again"; (2) the sketch artist with whom Wanous met
"advised Detective Ikehara that the drawing [that
resulted from their discussion] may not reflect an accurate
description because Ms. Wanous could not describe enough of
the suspect's facial features" such that
"Detective Ikehara did not include the drawing in the
HPD crime information bulletin"; (3) Wanous gave
Detective Ikehara two hand-drawn sketches, the first of which
had no eyes, nose, or mouth and the second of which
"provided slightly more detail but there was nothing to
suggest that the figure was a black male"; (4) Wanous
told Detective Ikehara that "a 'feeling'
prompted her to sketch the figures"; and (5) Wanous
could not identify the suspect in several photographic
line-ups which were generated based on her general
descriptions. Based on these findings, the circuit court
ruled that Wanous's death "does not prejudice
Ms. Wanous' account that she saw a black male leaving Ms.
Skinner's apartment the morning of July 25, 1989, is of
speculative value. Ms. Wanous' account does not preclude
the possibility that Defendant entered Ms. Skinner's
apartment and killed her. Consequently, Ms. Wanous'
account is too speculative to demonstrate that its loss
impairs Defendant's ability to present an effective
December 13, 2013, the State filed a motion in limine to
exclude Wanous's statements as hearsay. Specifically, the
State sought to exclude: (1) Wanous's recorded statement
taken by Detective Ikehara; (2) the sketches that she drew;
(3) the composite drawing prepared by the police graphic
artist; (4) the oral statements she made to Evenson; and (5)
any statement she made to Clason and Ah Loy. Austin countered
that Wanous's statements were admissible under
Hawai'i Rules of Evidence (HRE) Rules 804(b)(5) and
804(b)(8), and under Chambers v. Mississippi, 410
U.S. 284 (1973). At the hearing on the motion, held on
December 19, 2013, Austin asked the circuit court to
"take judicial notice of the records and files in this
case" and asserted that under Chambers, Austin
had the constitutional right "to a fair opportunity to
defend the accusation against him" and that "the
statement by Miss Wanous is essential to [Austin's]
defense . . . that another person could have committed or had
committed this offense."
December 13, 2013, Austin filed a motion in limine seeking to
preclude the State and its witnesses from referring to
Skinner as "the victim" at trial. At the hearing
held on December 19, 2013, Austin argued that "to label
the decedent as a victim ... is more prejudicial than
circuit court ruled on both parties' motions on January
17, 2014. The circuit court granted the State's motion to
exclude Wanous's statements, concluding that the
statements did not fit within either HRE Rule 804(b)(5) or
HRE Rule 804(b)(8), and that the statements were not
admissible under Chambers. The circuit court denied
Austin's motion to prevent the State and its witnesses
from referring to Skinner as "the victim," relying
on State v. Mateo, No. 30371, 2011 WL 5031546 (App.
Oct. 21, 2011) (SDO).
was fifty-four years old at trial in 2014; he would have been
twenty-nine years old in 1989. Austin testified that in 198
9, he had met an older woman at the Makua Ali'i building,
whose name he could not remember, on two occasions. The first
time he met this older woman, he spoke with her in the
elevator. The second time, he encountered the woman in the
lobby where the two engaged in conversation. He testified
that after they chatted in the lobby, the older woman invited
him to her apartment, where the two continued to talk, and
eventually, had consensual sex. He testified that he was in
the older woman's apartment for at most an hour, and that
after engaging in sexual intercourse with her, he left and
went to his grandmother's apartment.
also testified that he did not tell the police about his
sexual encounter with the woman in his 2012 interview because
he did not recognize the woman in the picture that the police
had shown him. Austin attested that he "didn't make
the connection between that woman [he had consensual sex
with] and the woman that was found murdered."
the presentation of evidence, the circuit court instructed
the jury on the elements of murder in the second degree,
having previously rejected Austin's request for
instruction on the lesser included offenses of reckless
manslaughter and assault. Both sides then presented their
the State's closing argument, the prosecutor argued as
one of his six points of summation that "[t]he defendant
is not worthy of your belief." While making his
argument, the prosecutor made the following comments:
(1) He argued that Austin "flat out lied to [the police]
with denials of things that couldn't possibly be
true" in his recorded interview. After playing a clip of
the interview recording, the prosecutor argued: "Come
on. The detectives asked him point blank [if he remembered
meeting Skinner, speaking with her, or being in her presence]
and he denied it. These denials are clear evidence that he
lied to the police then. Why would he lie about something so
obvious to the police?"
(2) After playing a clip of the interview recording where
Austin denied recognizing Skinner's picture or name, the
prosecutor commented: "That's obviously a lie.
Perhaps he didn't know her name. But if he didn't
know her name . . . how is it that he engages in a consensual
sexual encounter with a woman whose name is suddenly unknown
to him? He's lying to the police repeatedly."
(3) He argued:
He lied to the police two years ago, but he's persisted
in these lies when he spoke to you yesterday. How do you know
You know, this trial is taking place in the City and County
of Honolulu on the Island of Oahu. But surely the defendant
must be a permanent resident of Fantasy Island because the
story he told you yesterday - half truths, fabrication, lies,
convenient selected memory, and flat-out amnesia. Think about
what he told you yesterday.
He said that he recalled having two conversations with an
unknown woman in the lobby of the Makua Alii building.
Conveniently he never mentioned those conversations to the
police. You can listen to his statement.
Why is it that now he has this explanation? Because the
defendant has to come up with an explanation for you as to
why his semen is inside the victim. He's already lied to
the police. He's gotta come up with an explanation as to
why his semen is there.
summarizing the State's case, the prosecutor stated:
"Let's put this together. He had the opportunity; he
has no alibi; he is left handed;  the DNA evidence is
conclusive; he lied to the police; and he lied to you."
The prosecutor also presented the jury with a narrative
summarizing and describing how the murder occurred. In short,
he argued that Skinner forgot to lock her front door, that
Austin went to her unit after entering the building, and that
Austin then strangled and had sex with her.
during their respective closing arguments, the parties
differed in their views of Skinner's personality. The
prosecutor contended that "[d]uring the last year of her
life, Edith Skinner, then 81, lived a life of quiet
solitude." Defense counsel challenged the State's
representation of Skinner, arguing: "The State chose to
depict Edith Skinner as a frail, reserved, forgetful woman.
That's how they want you to see her. Why? Because
it's consistent with how they're thinking. . . .
It's consistent with the idea that, hey, how can you have
[Austin's] DNA on her unless it's by force?"
Defense counsel argued that Skinner actually "had a very
active social life," emphasizing that "she went
swimming every week at the Elk's Club in Waikiki."
In rebuttal, the prosecutor questioned defense counsel's
assertion that Skinner had an active social life, remarking
that no witness had testified that Skinner swam at the
Elk's Club weekly.
counsel did not object during the State's closing or
rebuttal argument. But, at the end of the proceedings, after
the jury had been excused, defense counsel objected to
"the State's repeated characterization that Mr.
Austin had lied."
February 5, 2014, the jury found Austin guilty as charged and
found that Austin knew or reasonably should have known that
Skinner was sixty years of age or older when he caused her
death. On February 18, 2014, Austin filed a motion for a new
trial, asserting that the prosecutor engaged in misconduct in
closing argument when he: (1) argued that Austin lied in his
statements to the police and in his testimony before the jury
because such statements expressed "his personal opinion
regarding Defendant's credibility"; and (2) told a
"story" of how the murder was committed because
such argument "was not based on the evidence
a hearing on the motion, the circuit court issued its written
findings of fact, conclusions of law, and order denying
Austin's motion for a new trial on May 8, 2014. The
circuit court ruled that it was not improper for the
prosecutor to argue that Austin's testimony was unworthy
of belief and that he had lied to the police and jury. The
circuit court also determined that the State's narrative
was supported by the evidence adduced at trial and reasonable
inferences drawn therefrom.
18, 2014, Austin was sentenced to an extended sentence of
life imprisonment without the possibility of parole pursuant
to HRS §§ 706-661 and 706-662(5). He appealed his
conviction and sentence to the Intermediate Court of Appeals
(ICA). The case was then transferred to this court.
STANDARDS OF REVIEW
review the circuit court's interpretation of a statute
de novo." State v. Akau, 118
Hawai'i 44, 51, 185 P.3d 229, 236 (2008).
Admissibility of Evidence
the admissibility of evidence is determined by application of
the hearsay rule, there can be only one correct result, and,
the appropriate standard for appellate review is the
right/wrong standard.'" State v. Moore, 82
Hawai'i 202, 217, 921 P.2d 122, 137 (1996) (quoting
Kealoha v. Cty. of Hawaii, 74 Haw. 308, 319, 844
P.2d 670, 675 (1993), reconsideration denied, 74
Haw. 650, 847 P.2d 263 (1993)).
jury instructions or the omission thereof are at issue on
appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading." State v. Sawyer, 88 Hawai'i
325, 330, 966 P.2d 637, 642 (1998) (quoting State v.
Arceo, 84 Hawai'i 1, 11, 928 P.2d 843, 853 (1996)).
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.'" Sawyer, 88 Hawai'i at 329
n.6, 966 P.2d at 641 n.6 (quoting State v.
Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215,
1220 (1996)). "If defense counsel does not object at
trial to prosecutorial misconduct, this court may
nevertheless recognize such misconduct if plainly
erroneous." State v. Wakisaka, 102 Hawai'i
504, 513, 78 P.3d 317, 326 (2003). "We may recognize
plain error when the error committed affects substantial
rights of the defendant." Id. (quoting
State v. Cordeiro, 99 Hawai'i 390, 405, 56 P.3d
692, 707 (2002)).
Motion for a New Trial
granting or denial of a motion for new trial is within the
sound discretion of the trial court and will not be disturbed
absent a clear abuse of discretion." State v.
Hicks, 113 Hawai'i 60, 69, 148 P.3d 493, 502 (2006)
(alteration in original) (quoting State v. Yamada,
108 Hawai'i 474, 478, 122 P.3d 254, 258 (2005)). "It
is well-established that an abuse of discretion occurs if the
trial court has 'clearly exceed[ed] the bounds of reason
or disregards rules or principles of law or practice to the
substantial detriment of a party litigant.'"
Id. (alteration in original) (quoting
Yamada, 108 Hawai'i at 478, 122 P.3d at 258) .
asserts the following points of error on appeal: (1)
"Under State v. Mundon, The Trial Court Abused
its Discretion in Allowing the State and its Witnesses to
Refer to Skinner as the 'Victim' or 'Murder
Victim' at Trial," (2) "The Trial Court Erred
in Excluding Wanous' Statements on Hearsay Grounds and
Thereby Denied Austin His Right to a Fair Trial in Accord
with Due Process," (3) "The Trial Court Erred by
Refusing to Instruct the Jury on Included Offenses," (4)
"Because Repeated Misconduct by the DPA During Closing
Argument Deprived Austin of a Fair Trial, the Trial Court
Erred in Denying his Motion for a New Trial," and (5)
"The Trial Court Plainly Erred in Sentencing Austin to
an Extended Term in Violation of the Ex Post Facto Clause of
the Federal Constitution and HRS § 1-3." We
consider each point of error in turn below.
The circuit court did not abuse its discretion in allowing
the State and its witnesses to refer to Skinner as the
"victim" at trial.
to Austin, the circuit court erred in allowing the State and
its witnesses to refer to Skinner as the "victim"
or "murder victim" at trial. Austin asserts that
the circuit court erred by relying on State v.
Nomura, 79 Hawai'i 413, 903 P.2d 718 (App. 1995),
cert, denied, 80 Hawai'i 187, 907 P.2d 773
(1995), and State v. Mateo, No. 30371, 2011 WL
5031546 (App. Oct. 21, 2011) (SDO), rather than on State
v. Mundon, 129 Hawai'i 1, 292 P.3d 205 (2012), which
is controlling. Austin argues that pursuant to
Mundon, the State should not have been permitted to
refer to Skinner as the "victim" because the
circuit court did not find that there was a good reason to
justify the use of the term by the State and its witnesses in
Nomura, the defendant was charged with physically
abusing his wife, the complaining witness. 79 Hawai'i at
415, 903 P.2d at 720. The complaining witness and the
defendant got into an argument while grocery shopping, which
later escalated into a physical fight after they returned to
the complaining witness's apartment. Id. The
complaining witness testified that during the fight, the
defendant grabbed, hit, slapped, and choked her. Id.
The defendant testified that the complaining witness had
initiated the fight in response to the defendant telling her
that he wanted a divorce. Id. The defendant denied
grabbing, hitting, slapping, or choking the complaining
witness as she had testified. Id. The jury was
instructed as follows on the elements of the offense of abuse
of a family or household member:
There are three (3) material elements to this charge, which
the prosecution must prove beyond a reasonable doubt. The
1) The defendant physically abused the victim.
2) The victim is either a family or household member; and
3) The defendant physically abused the victim intentionally,
knowingly, or recklessly.
appeal, the defendant argued that by referring to the
complaining witness as the "victim" in the
foregoing jury instruction, the trial court improperly
commented on the evidence in violation of HRE Rule 1102 and
thereby prejudiced the defendant. Id. at 416, 903
P.2d at 721. The ICA held:
Hence, the term "victim" is conclusive in nature
and connotes a predetermination that the person referred to
had in fact been wronged. Because the question of whether
Witness had been abused was a question yet to be decided by
the jury, it was improper to refer to her as "the
victim." Furthermore, Defendant denied any contact with
Witness which might have caused her injury, making the
existence of "injury" another question to be
decided by the jury. Obviously, the trial court could have
used the term "complaining witness" or referred to
Witness by her name to avoid any appearance of partiality....
Accordingly, we hold that the reference to a complaining
witness as "the victim" in criminal jury
instructions is inaccurate and misleading where the jury must
yet determine from the evidence whether the complaining
witness was the object of the offense and whether the
complaining witness was acted upon in the manner required
under the statute to prove the offense charged. Here,
the question of whether Witness was the object of the crime
and whether she suffered physical "abuse" were
elements required to be proven under the statute and, hence,
matters for the jury to evaluate and not for the court to
comment upon. Thus, we disapprove of the reference to the
complaining witness as a "victim" in Instruction
Id. at 416-17, 903 P.2d at 721-22 (emphasis added).
However, the ICA ultimately concluded that "[v]iewing
the instructions in their entirety, we do not believe the
court's reference to Witness as, the victim' was
prejudicial." Id. at 417, 903 P.2d at 722.
Mundon, the defendant was found guilty of attempted
sexual assault, kidnapping, and assault. 129 Hawai'i at
9, 292 P.3d at 213. The complaining witness testified that
the defendant molested her several times while she was
sleeping in his car, and that when she had attempted to leave
the vehicle, the defendant threatened to cut her with a
knife. Id. at 6-7, 292 P.3d at 210-11. The
complaining witness attested that she managed to escape when
the defendant permitted her to leave the vehicle to relieve
herself. Id. at 8, 292 P.3d at 212. The defendant
did not testify at trial. Id. at 9, 292 P.3d at 213.
appeal, this court held that the circuit court erred in
allowing the prosecutor to refer to the complaining witness
as the "victim" at trial. Id. at 26, 292
P.3d at 230. The Mundon court first noted that, in
contrast with Nomura, the term "victim"
did not appear in the jury instructions and was not used by
the court. Id. However, this court reasoned:
Nomura also found the jury instruction problematic
because the trial court must instruct the jury on the law but
may not comment upon the evidence. Nomura explained
that such a rule derives from the principle that the trial
judge must endeavor at all times to maintain an attitude of
fairness and impartiality. The use of the term was also wrong
in light of this principle, because the trial court could
have used the term "complaining witness" or
referred to her by name to avoid the appearance of
partiality. The presumption of innocence and the
maintenance of fairness and impartiality during the trial are
precepts underlying Nomura. Hence, the court erred in
allowing Respondent and the witnesses to refer to Complainant
as "the victim."
. . . It would seem, in light of Nomura, that unless
there are good reasons found by the court for permitting
otherwise, the court should instruct all counsel that they
and their witnesses must refrain from using the term.
Notwithstanding the court's error, the use of the term
"victim" in the limited circumstances of this case
was not prejudicial to Petitioner and, hence, does not itself
warrant reversal of his convictions. However, it "is
incompatible with the presumption of innocence for the
prosecution to refer to the complaining witness as the
'victim,' just as it is to refer to the defendant ...