CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000156; CR. NO. 09-1-0472)
M. Otake for petitioner
R. Vincent for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
CIRCUIT JUDGE VIOLA, IN PLACE OF POLLACK, J., RECUSED
right to a fair trial, guaranteed to criminal defendants by
both the Constitution of the United States and the
Constitution of the State of Hawai'i, is a fundamental
principle upon which our justice system is built. U.S. Const,
amend. VI; Haw. Const, art. I, § 14. In the instant
case, we are called upon to determine whether multiple
instances of improper prosecutorial conduct cumulatively
jeopardized the defendant's right to a fair trial.
Meafua Pasene was charged with Murder in the Second Degree
and Carrying or Use of Firearm in the Commission of a
Separate Felony. After two prior trials resulted in mistrials
due to hung juries, Pasene was convicted of both offenses in
a third jury trial held by the Circuit Court of the First
Circuit (circuit court),  The Intermediate Court of Appeals (ICA)
certiorari, Pasene challenges the circuit court's
rulings: (1) denying his pre-trial Moriwake motion
to dismiss; (2) permitting a Honolulu Police Department (HPD)
detective to testify as to why another suspect was ruled out;
(3) admitting cell phone site records into evidence; (4)
admitting evidence of his meetings and transactions with an
undercover HPD officer; (5) denying his request to excuse a
juror; and (6) denying his motions for mistrial and motion
for a new trial due to prosecutorial misconduct.
the first five issues are without merit, we hold that the
cumulative effect of the prosecutor's improper conduct
was so prejudicial as to jeopardize Pasene's right to a
fair trial. We therefore vacate Pasene's convictions and
remand this case to the circuit court for further proceedings
consistent with this opinion.
Cedro Muna (Muna), and Antonius Paul Toloai (Toloai) were
released from police custody in the early hours of March 28,
2009, after being arrested the previous afternoon. At the
time of their release, Pasene and Muna were dressed alike and
had similar physical characteristics, other than the fact
that Pasene had a short beard, while Muna did
that morning, at around 4:00 a.m., Joseph Peneueta (Peneueta)
and several others were gathered outside the Pauahi
Recreation Center in Chinatown. A blue Buick sedan drove up
to the group and stopped in front of them. Two men, each
carrying a firearm, exited the car and advanced toward
Peneueta. They shot Peneueta several times, killing
Roughly two hours later, a blue Buick sedan was reported
burning just outside of Wahiawa.
was indicted by a grand jury in connection with
Peneueta's killing and charged with, inter alia, Murder
in the Second Degree, in violation of Hawai'i Revised
Statutes (HRS) § 707-701.5 (2014), and Carrying or Use
of Firearm in the Commission of a Separate Felony, in
violation of HRS § 134-21 (2011). Pasene was tried a
total of three times for these crimes.
Moriwake Motion to Dismiss
his first two trials resulted in mistrials due to the
juries' inability to reach unanimous verdicts, Pasene
filed a motion to dismiss his indictment with prejudice,
pursuant to State v. Moriwake, 65 Haw. 47, 647 P.2d
705 (1982). The Moriwake court set forth the
following six factors for a trial court to consider in
determining whether to dismiss an indictment after one or
more hung jury mistrials:
(1) the severity of the offense charged; (2) the number of
prior mistrials and the circumstances of the jury
deliberation therein, so far as is known; (3) the character
of prior trials in terms of length, complexity and similarity
of evidence presented; (4) the likelihood of any substantial
difference in a subsequent trial, if allowed; (5) the trial
court's own evaluation of relative case strength; and (6)
the professional conduct and diligence of respective counsel,
particularly that of the prosecuting attorney.
Moriwake, 65 Haw. at 56, 647 P.2d at 712-13.
circuit court considered each of these factors in turn.
First, with regard to the severity of the offenses charged,
the circuit court noted that the charges facing Pasene were
"among the most serious there are . . . clearly
cut[ting] against a dismissal." Second, with regard to
the number of mistrials and the circumstances of the jury
deliberations therein, the circuit court opined that
"there were somewhat dissimilar circumstances,"
apparently referencing the fact that the final jury tally was
9 to 3 in favor of guilty for the first trial and 9 to 3 in
favor of not guilty for the second trial. The circuit court
determined this factor thus weighed against dismissal. Third,
the circuit court found that each of the two trials lasted
between 3 and 4 weeks, and the evidence presented was largely
similar, favoring dismissal.
Ramon Rye (Rye) was tried as Pasene's co-defendant in the
first two trials, but was acquitted at the conclusion of the
second trial. The circuit court noted that the dynamic of the
case changed as a result of Rye's acquittal and
determined that the fourth Moriwake factor therefore
cut against dismissal. With regard to the fifth
Moriwake factor, the circuit court stated that its
evaluation of the relative strength of the case cut against
dismissal, as it found "ample evidence" for a jury
to reach a unanimous decision. Finally, the circuit court
opined that the professional conduct and diligence of counsel
did not weigh for or against dismissal.
that the only Moriwake factor weighing in favor of
dismissal was the character of the prior trials in terms of
length, complexity and similarity of the evidence presented,
the circuit court denied Pasene's motion to dismiss and
set the case for a third trial.
Admissibility of Cell Phone Site Records
filed Motion in Limine No. 3, seeking to exclude from
evidence cell phone site records associated with a specific
phone (the Phone). The cell phone site records were produced
by Vince Monaco (Monaco), a network engineering manager and
custodian of records for Mobi PCS (Mobi). Pasene filed
similar motions in limine prior to the first and second
trials. It appears that in reaching its ruling on Motion in
Limine No. 3, the circuit court relied on Monaco's
testimony from the first trial, as well as its prior rulings.
cell phone site records listed the following information for
each call placed or received by the Phone from March 27, 2009
to April 3, 2009: time and date of call initiation; phone
number connected to; call duration; and street address of the
cell tower utilized to connect the call. As a result, the
records purport to show the general location of the Phone at
various times on the date of Peneueta's killing. Under
the State's theory of the case, Pasene was the
Phone's primary user.
first trial, Monaco testified that he produced the records
pursuant to a subpoena, using a program that he created. When
prompted by Monaco, the program compiled information from
call records associated with the Phone and a cell site
database, both generated and maintained by Mobi. Although
Monaco could not say that the program was widely accepted
within the cellular service industry, he testified that Mobi
utilizes the same process of combining information in call
records and the cell site database in its regularly-conducted
troubleshooting and quality-control activities. Monaco
further testified that the process is simple enough to be
performed manually, and was in fact done manually prior to
the creation of his program.
testified that Mobi's call records are recorded,
generated, and maintained by computers, and that the accuracy
of the records is important to Mobi. Monaco added that the
switch used to generate Mobi's call records is fully
redundant to prevent errors and alarmed to alert the operator
of any errors that do occur. In addition, Monaco stated that
the switch's manufacturer guaranteed it to work
"99.999 percent of the time," but admitted that he
did not know whether the switch was ever tested for accuracy
in Limine No. 3, filed prior to the third trial, was
identical to a motion in limine that Pasene filed prior to
the second trial. The motions challenged the admissibility of
the cell phone site records as business records under
Hawai'i Rules of Evidence (HRE) Rule 803(b)(6), arguing
that the records were not kept in the ordinary course of
business and that the methodology used to create the records
did not meet the foundational requirements of State v.
Montalbo, 73 Haw. 130, 828 P.2d 1274 (1992) .
circuit court denied Pasene's motion in limine before the
second trial and allowed the cell phone site records to be
admitted as business records under Hawai'i Rules of
Evidence (HRE) Rule 803(b)(6) (2016). In reaching its ruling,
the circuit court found that Mobi kept "information and
data regarding its equipment and systems, including the cell
phones, as well as the cell towers, as part of its regular
business and that . . . information or data ... is recorded
at or near the time of the event." It explained that
compiling clearly admissible data into a report in response
to a subpoena did not "cause it to run afoul [of] the
prohibition against records prepared ... in anticipation of
litigation." Furthermore, although the circuit court
acknowledged that the records are "not the type that are
normally generated in connection with [Mobi's]
business," and were produced in preparation for trial,
it found "no indication whatsoever that [the] records or
reports lack trustworthiness in any way."
circuit court affirmed its ruling on Pasene's prior
motion and denied Motion in Limine No. 3, allowing the cell
phone site records to be admitted into evidence for purposes
of the third trial.
Admissibility of Testimony Regarding Meetings and
Transactions With Undercover HPD Officer Le
to trial, Pasene also filed Motion in Limine No. 4, seeking
to exclude from evidence testimony pertaining to drug-related
meetings and transactions that occurred between Pasene and
undercover HPD Officer Khan Le (Officer Le) in the three
weeks leading up to Peneueta's shooting. Pasene argued
that testimony regarding the nature of the meetings and
transactions constituted evidence of prior bad acts.
Asserting that the State's only legitimate purpose for
introducing the evidence was to link Pasene to the Phone,
defense counsel offered to stipulate that Pasene was in
possession of the Phone at the dates and times he was
contacted by Officer Le, while reserving the right to present
evidence that Pasene was not in possession of the Phone at
the time of the shooting. Pasene argued such a stipulation
would preserve the probative value of the testimony while
eliminating its prejudicial impact. The State declined to so
then argued that the evidence should be excluded under HRE
Rule 403 (2016) because its probative value was substantially
outweighed by the danger of unfair prejudice. The circuit
court granted in part and denied in part Motion in Limine No.
4, in order to reduce the testimony's prejudicial effect
while retaining its probative value. The circuit court
explained that the testimony was relevant to explain
"law enforcement['s] concern as to the escalation of
problems between the two rival groups or gangs in the
Chinatown area" and to show "a tie-in to a phone, a
cell phone, as well as a blue Buick." In order to reduce
the testimony's prejudicial effect, the circuit court
limited the allowable testimony to exclude "evidence of
Defendant Pasene's gang membership and the fact that he
is believed to be engaged in the sale or transaction of
drugs," as well as "any mention of drugs, money or
money transactions of any kind."
Third Jury Trial
trial, the State presented testimony from two eyewitnesses,
Gabriel Sakaria and Richard Tagataese, who both identified
Pasene as the driver of the blue Buick sedan and one of
Peneueta's killers. The State also presented testimony
from Officer Le to tie Pasene to the Phone and the blue Buick
sedan, and used cell phone site records to show that the
Phone was in Peneueta's general vicinity around the time
of his killing, and in the blue Buick sedan's general
vicinity around the time it was set on fire.
the State's theory, Muna could not have been involved in
Peneueta's shooting, as he was in a taxi cab heading to
the Plaza hotel when the shooting occurred. To support this
theory, the State presented testimony from Detectives Gregory
McCormick and Theodore Coons regarding the steps they took to
investigate Muna. Chinatown surveillance footage, which was
not admitted into evidence, was also discussed at trial as a
basis for the detectives' decision to rule Muna out as a
relied on the defense of mistaken identity, arguing that Muna
could have been the driver who shot and killed Peneueta.
Pasene presented testimony from Linda Del Rio, a bail bond
agent, that Muna confessed to her on the morning of
Peneueta's killing that he'd shot someone. Pasene
also testified that he was not in possession of the Phone or
the blue Buick sedan at the time of Peneueta's killing.
the trial, defense counsel requested that the circuit court
excuse Juror No. 1 because he interacted with a witness and
discussed the interaction with another juror. This request
was denied. Defense counsel also objected throughout the
trial and made several motions for mistrial on the bases of
evidentiary violations and prosecutorial misconduct. Although
the circuit court sustained numerous objections raised by
defense counsel, admonished the Deputy Prosecuting Attorney
(DPA) multiple times, and expressed concern that the
DPA's pattern of conduct could jeopardize Pasene's
right to a fair trial, it denied Pasene's motions.
The State's Opening Statement
opening statement, the DPA suggested that two groups of
Samoan men - one local, and one from San Francisco -were
engaged in a territorial dispute. According to the DPA,
evidence presented at trial would show that Pasene shot and
killed Peneueta in response to escalating tensions between
the two groups.
counsel made ten objections during the DPA's opening
statement. The circuit court sustained six objections on the
basis of improper argument, and warned the DPA,
"I've sustained many appropriate objections raised
at this point. You know what argument is. You are engaging in
argument. Do not do that."
[A]s far as Mr. Muna being a suspect, you will hear the
testimony of Detective Greg McCormick and Detective Theodore
Coons, both of whom investigated Cedro Muna and eliminated
him as a suspect because the Chinatown cameras were able
to capture Mr. Muna getting into the taxi, as testified
to by the taxi driver and as stated to them by Mr. Muna, and
the taxi driver and the timing allowed the police to
eliminate Mr. Muna as a suspect, because as the car . .
. was driving away . . . shots were heard. (Emphases added).
counsel objected, as the surveillance footage from the
Chinatown camera referenced by the DPA was "not
recoverable," and therefore would not be admitted into
evidence. Although no curative instruction was given, the
circuit court addressed the DPA at the bench as follows:
[G]iven the number of objections that have been sustained
thus far, you know, one would question whether or not this is
just inadvertent or you are blatantly disregarding the
Court's - the rulings about the limitations of opening
[Y]ou have this tendency to launch into an argumentative tone
and syntax, that certainly a conclusion could be drawn, that
could be reasonable based upon the number of those instances,
to question whether or not that is, in fact, inadvertent or
if you are doing it purposefully. I certainly hope it's
not the latter, . . . [b]ut I ask you to try to be careful.
Because this is the third trial. We want to make sure
that everybody has a fair opportunity to be heard.
conclusion of the State's opening statement, defense
counsel moved for a mistrial, arguing the DPA's use of
improper argument forced him to repeatedly object and
prejudiced Pasene's opportunity to receive a fair trial.
The circuit court denied the motion, but admonished the DPA,
acknowledging that any further improper conduct could
jeopardize Pasene's right to a fair trial:
[T]he reality is, . . . the sum total of the repeated
references or arguments that you made during your opening
really . . . causes me to seriously question whether or not
it is intentional or it is purely inadvertent. I don't
care, to be quite frank about it. Both sides are entitled
to a fair trial.
I'm putting you clearly on notice . . . we're in a
third trial . . . [and] we want to make sure that everything
is done as appropriately and properly as possibly can be. You
want a fair trial. Mr. Pasene deserves a fair trial,
as well. And playing fast and loose with . . . the rules or
conventions of court really is not going to serve you well if
you choose to do that. . . . [G]oing forward I will full well
expect you to conduct yourself . . . without the need to
inject improper statements, comments, or what have you.
jury was presented with testimony elicited from 27 witnesses
during the evidence phase of trial. The evidence most
directly relevant to the issues on appeal is set forth below.
Sakaria (Sakaria) testified that he, Richard Tagataese
(Tagataese), and Peneueta grew up together and had been
friends for over 20 years. Sakaria stated that he witnessed
Pasene and Peneueta arguing outside a liquor store on the
morning of Peneueta's shooting. He heard Pasene say,
"[w]here we from we don't fight, we shoot, shoot to
kill." Sakaria later walked to the nearby recreation
center. He was sitting next to Peneueta outside the center,
when a four-door blue Buick sped up the street and stopped
right in front of them. Two men got out of the car. The
driver was holding a rifle and his face was uncovered.
Sakaria identified him as Pasene. The passenger was holding a
shotgun, but Sakaria was unable to identify him because his
face was covered.
testified that the driver walked towards Peneueta with the
rifle pointed at him and said, "What's up now?"
Sakaria stated he was roughly three feet away from the
driver, the lighting conditions were good, and he had an
unobstructed view of the driver's face. Sakaria testified
that he heard a gunshot and ran. He heard at least ten more
gunshots as he fled. When he returned to the area, Peneueta
was lying in the street. Sakaria also testified that he knew
Muna and was "[n]undred percent" positive that the
driver was Pasene, and not Muna.
testified that he was outside the recreation center with
Peneueta and Sakaria at the time of Peneueta's shooting.
Tagataese's testimony regarding the details of
Peneueta's shooting was substantively consistent with
Sakaria's version of events. Tagataese identified Pasene
as the driver of the car, and one of Peneueta's killers.
cab driver Darren Kawelolani (Kawelolani) testified that one
of his regular customers, Daniel Ropati (Ropati), called him
from Chinatown at around 4:00 a.m. on the morning of
Peneueta's killing. When Kawelolani arrived in Chinatown
roughly 10 minutes later, Ropati no longer wanted a ride, so
Kawelolani picked up two male passengers that he did not
know. Kawelolani testified that after the passengers entered
his cab, he saw a blue car speed by within three feet of the
cab. The blue car's windows were rolled up and tinted or
dirty. Shortly after the blue car passed by, Kawelolani heard
what sounded like firecrackers or eight to ten loud gunshots.
He proceeded to drive to the Best Western Airport Plaza
Hotel, where he dropped off one of the passengers. He then
returned to Chinatown, where he dropped off the other
was interviewed by HPD Detective Gregory McCormick (Detective
McCormick) four or five days after Peneueta's killing.
Kawelolani testified that during the interview, he identified
Toloai as one of the passengers based on a single photograph
presented to him by Detective McCormick. Kawelolani was
unable to identify the second passenger.
trial, Kawelolani testified that the driver of the blue car
had long hair. When asked if the driver had any facial hair,
Kawelolani responded, "Not that I recall." However,
after reviewing a copy of the statement he gave to the police
four or five days after the shooting, Kawelolani testified
that the driver of the blue car "not only had long hair,
but he also had a beard." When asked if he ever saw the
driver of the blue car after his initial sighting, Kawelolani
responded, "Yes. ... I saw him on the news on the
television." Kawelolani did not identify Pasene as the
driver of the blue car or the person that he saw on the news.
Detective Gregory McCormick
McCormick was the lead homicide detective assigned to
investigate Peneueta's killing. He testified that shortly
after the shooting, he was given the names of three possible
suspects: Pasene, Muna, and Toloai. The DPA asked Detective
McCormick, "[w]hat conclusion did you come to regarding
Cedro Muna being one of the shooters?" Defense counsel
objected to the question, arguing that Detective
McCormick's conclusion regarding Muna was irrelevant and
that the question was improper because it was equivalent to
asking for Detective McCormick's personal opinion about
whether Muna was involved in Peneueta's killing. The
circuit court sustained in part and overruled in part the
objection, acknowledging the possibility that the jury might
use Detective McCormick's opinion for an improper
purpose. Accordingly, the circuit court limited the DPA's
line of questioning to the "efforts [Detective
McCormick] made relative to Mr. Muna and the conclusion of
those efforts" - whether they cleared him as a suspect
in the investigation.
testified that Muna was interviewed, but not arrested in
connection with Peneueta's killing. The DPA then
questioned Detective McCormick regarding his elimination of
Muna as a suspect, prompting defense counsel to object and
move for a mistrial:
[DPA]: Did you interview other witnesses
that could corroborate what Mr. Muna had told you?
[DPA] : Okay. Who was that?
[Detective McCormick]: One
of 'em was Antonias Toloai.
[Defense counsel]: Your Honor, can we
approach again please?
The Court: All right. Very
(The following proceedings had at the bench:)
[Defense counsel]: [T]he problem is . . .
I'm never going to cross [Toloai], and he says
[Toloai's] statement matches Cedro [Muna]'s. And
that's a violation of the confrontation clause and my
client's right to cross-examine witnesses against him.
And that's why it's hearsay and it's problematic.
And so I'd like to ask for a mistrial. I move for a
mistrial because this violates a whole variety of rules of
The Court: [Defense
counsel] has a valid concern and point, because you know, . .
. once you start placing the moniker of corroboration on
there, essentially that's saying that . . . what they
said to the police was the same thing Mr. Muna had said. And
he's not going to get an opportunity to cross-examine
those folks [because they are not going to testify].
circuit court denied Pasene's motion for mistrial and
instructed the jury that Detective McCormick's testimony
that "Muna was in fact interviewed and that he was not
arrested," would stand. The circuit court struck all of
the testimony that followed and instructed the jury to
"treat it as if you didn't hear it,"
acknowledging that disregarding the stricken testimony may be
"easier said than done."
bench, the circuit court also addressed whether, and to what
extent, the DPA could question Detective McCormick regarding
Chinatown surveillance footage that he reviewed in the course
of his investigation. The DPA represented to the circuit
court that the surveillance footage showed Muna getting into
Kawelolani's taxi cab. However, defense counsel objected to
the allowance of any testimony regarding the content of the
surveillance footage because it "somehow was unrecorded
or destroyed." In recognition of the fact that the
surveillance footage was not turned over to the defense and
could not be viewed by the jury, the circuit court proposed
limiting Detective McCormick's testimony regarding the
surveillance footage to the following:
[T]o the extent that [the DPA] examines [Detective McCormick]
on the video evidence, that . . . following the interview of
Mr. Muna[, ] he viewed the video and . . . based upon what he
viewed in the video, . . . essentially Mr. Muna was cleared.
[B]asically [that the detectives] chose not to further
investigate Mr. Muna.
counsel replied, "If he keeps it to that, that's
McCormick testified that although he viewed the Chinatown
surveillance footage in the course of his investigation, it
was "not recoverable." The State examined Detective
McCormick regarding the Chinatown surveillance footage as
[DPA]: As part of your investigation of
Cedro Muna, you reviewed some of the camera videotape from
Chinatown; is that correct?
[DPA]: Okay. And based upon your review of
that - of that video, that was part of the reason why you
were able to eliminate Mr. Muna as a suspect?
[Detective McCormick]: That
was part of the reason, yes .
[DPA]: Okay. And in addition to other parts
of your investigation which - in addition to the video that
you saw led you to eliminate Mr. Muna as a suspect in the
[Detective McCormick]: Yes
counsel did not object. Detective McCormick also testified
that a blue Buick, with the license number JGA 055, was
reported burning just before 6:00 a.m. on the day of
Peneueta's shooting. The car was registered to Sylvia
Hall (Hall). Detective McCormick further testified that the
car was registered to Muna until Hall registered it in her
name on February 10, 2009.
Detective Theodore Coons
Coons was the scene investigator assigned to Peneueta's
killing. When asked whether, based on his review of the
Chinatown surveillance footage, he ruled Muna "in or
out," Detective Coons confirmed that Muna was not
arrested in connection with Peneueta's killing and
testified that his review of the Chinatown surveillance
footage "was one of the aspects" that led to the
elimination of Muna as a suspect.
State moved surveillance footage recorded at the Best Western
Airport Plaza Hotel into evidence. Detective Coons testified
that he viewed the footage at the hotel in the course of his
investigation, and at the time, it was marked with a date and
time stamp. The footage admitted into evidence lacked
such temporal references, but Detective Coons testified that
it was "an exact copy" of the footage he reviewed
at the hotel. Detective Coons also confirmed that a car with
the license plate number JGA 055, registered to Hall, was
reported burning near Waialua shortly after the shooting.
Detective Coons further testified that he met with Hall and
she did not have a driver's license. Without objection by
defense counsel, Detective Coons described Hall as "a
very simple person. She was accompanied by a social worker.
She was sober. She appeared coherent and she understands. But
it was obvious that she was a simple . . . person."