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State v. Pasene

Supreme Court of Hawaii

April 22, 2019

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
IOSEFA MEAFUA PASENE, Petitioner/Defendant-Appellant and ZORRO R. RYE, aka Zorro Ramon Rye, Respondent/Defendant.




          RECKTENWALD, C.J.

         The 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.

         Iosefa 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), [1] The Intermediate Court of Appeals (ICA) affirmed.

         On 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.

         Although 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.

         I. BACKGROUND

         Pasene, 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 not.[2]

         Later 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 him.[3] Roughly two hours later, a blue Buick sedan was reported burning just outside of Wahiawa.

         A. Pre-trial Proceedings

         Pasene 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.

         1. Moriwake Motion to Dismiss

         After 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.

         The 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.

         Zorro 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.

          Finding 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.

         2. Admissibility of Cell Phone Site Records

         Pasene 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.

         The 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.

         In the 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.

         Monaco 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 or error.

         Motion 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) .

         The 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."

         The 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.

         3. Admissibility of Testimony Regarding Meetings and Transactions With Undercover HPD Officer Le

         Prior 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 stipulate.

         Pasene 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."

         B. Third Jury Trial

         1. Overview

         At trial, the State presented testimony from two eye-witnesses, 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.

         Under 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 suspect.

         Pasene 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.

         During 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.

         2. The State's Opening Statement

         In his 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.

         Defense 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."

         The DPA then stated:

[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).

         Defense 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 statement.
[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.

(Emphasis added).

         At the 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.

(Emphases added).

         3. Evidence

         The 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.

         a. Gabriel Sakaria

         Gabriel 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.

         Sakaria 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.

         b. Richard Tagataese

         Tagataese 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.

         c. Darren Kawelolani

         Taxi 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 passenger.

         Kawelolani 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.

         At 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.

         d. Detective Gregory McCormick

         Detective 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.

         McCormick 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?
[Detective McCormick]: Yes.
[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 well.
(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 evidence.
. . .
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] .

(Emphasis added).

         The 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."

         At the 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.[4] 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.
Defense counsel replied, "If he keeps it to that, that's fine."

         Detective 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 follows:

[DPA]: As part of your investigation of Cedro Muna, you reviewed some of the camera videotape from Chinatown; is that correct?
[Detective McCormick]: Yes.
[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 shooting?
[Detective McCormick]: Yes .

         Defense 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.

         e. Detective Theodore Coons

         Detective 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.

         The 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.[5] 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."

         f. ...

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