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State v. Austin

Supreme Court of Hawaii

June 29, 2018

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
GERALD L. AUSTIN, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000935; CR. NO. 12-1-0127)

          William H. Jameson, Jr. for defendant-appellant

          Donn Fudo for plaintiff-appellee

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ. [1]

          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

         Defendant-Appellant 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) § 1-3.

         For the 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.

         I. BACKGROUND

         Skinner 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.

         Skinner 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.

         On the 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.

         During 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.

         In her 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[2] 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.

         Wanous 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.

         Wanous 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 sketched:

[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.

         Detective 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?
[Wanous:] Yes.

         Also on 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 facial shape.

         On July 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."

         On July 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.

         On 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 and distributed.

         On 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.

         In October 1991, Wanous passed away.

         Additional 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.

         On 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.

         A. Circuit Court Proceedings

         On January 25, 2012, Austin was indicted by a grand jury for murder in the second degree.

         On July 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."

         The 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.

         On December 4, 2013, the circuit court[3] 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 Defendant" because:

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 defense.

         On 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."

         Also on 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 probative."

         The 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).

         Austin 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.

         Austin 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."

         Following 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 closing arguments.

         During 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 that?
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.

         In 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; [4] 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.

         Additionally, 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.

         Defense 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."

         On 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 presented."

         Following 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.

         On June 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.

         II. STANDARDS OF REVIEW

         A. Statutory Interpretation

         "We 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).

         B. Admissibility of Evidence

         "[W]here 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)).

         C. Jury Instructions

         "When 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)).

         D. 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.'" 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)).

         E. Motion for a New Trial

         "[T]he 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) .

         III. DISCUSSION

         Austin 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.

         A. The circuit court did not abuse its discretion in allowing the State and its witnesses to refer to Skinner as the "victim" at trial.

         According 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 this case.

         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 elements are:
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.

Id.

         On 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 No. 01.

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.

         In 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.

         On 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 ...

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