79 Hawai'i 293, State v. Suka, 16500

Citation79 Hawaii 293,901 P.2d 1272
Decision Date10 August 1995
Docket NumberNo. 16500,16500
Parties79 Hawai'i 293 STATE of Hawai'i, Plaintiff-Appellee, v. Keila SUKA, Jr., Defendant-Appellant.
CourtCourt of Appeals of Hawai'i

Syllabus by the Court

1. The prosecutor's improper statement in closing argument concerning the complaining witness' lack of prior sexual experience was prohibited by the court's prior order granting the prosecution's own motion in limine.

2. There comes a point at which the trial court should exercise its power to sanction such improper statements by counsel. Failure to take deterrent action only encourages the belief that such conduct, while disapproved, is tolerated, leading not only to a lower standard of justice in our courts but also to needless appeals. In the future, trial courts should consider sanctions to deter such improper statements.

3. To determine whether reversal is required under Hawai'i Rules of Penal Procedure Rule 52(a) because of improper remarks by a prosecutor which could affect a defendant's right to a fair trial we apply the harmless beyond a reasonable doubt standard of review.

4. In applying the harmless beyond a reasonable doubt standard, the court is required to examine the record and determine "whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

Richard T. Pafundi, on the brief, Honolulu, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Atty., on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

Defendant-Appellant Keila Suka, Jr. (Defendant) was indicted on March 25, 1987. He was charged with the following felony offenses: Count I, Rape in the First Degree; Count II, Kidnapping; Count III, Sexual Abuse in the First Degree; Count IV, Rape in the First Degree; Count V, Sodomy in the First Degree; Count VI, Kidnapping; Counts VII and VIII, Sexual Abuse in the First Degree. 1 All counts involved the same complaining witness (Witness). The incidents described in the first three counts allegedly occurred on May 9, 1986, the last five counts on May 16, 1986. Defendant was convicted on all counts following a third trial of the charges alleged in the indictment. He was sentenced on Counts I, IV, and V to an extended term of life imprisonment; on Counts II and VI to an extended term of twenty years; and on Counts III, VI, and VIII to an extended term of ten years; the sentences to be served concurrently with credit for time served.

Defendant appeals from the August 14, 1992 judgment of conviction on the sole ground that during closing argument, the prosecutor improperly argued that Witness had not engaged in sexual intercourse with anyone prior to the alleged assault by Defendant on May 9, 1986. We believe that the standard to be applied in this case is whether the statement was harmless beyond a reasonable doubt under Hawai'i Rules of Penal Procedure (HRPP) Rule 52(a) and, concluding the error was harmless, we affirm the judgment.

Defendant had been convicted of all the offenses at his first trial. However, after an appeal, the convictions were set aside on July 12, 1989. State v. Suka, 70 Haw. 472, 777 P.2d 240 (1989). The second trial ended in a mistrial on October 31, 1991, because the jury was unable to reach a verdict.

At the second trial, the trial court had issued a written order granting the State's motion in limine prohibiting Defendant from referring to any sexual conduct by Witness with other people. This December 4, 1991 order stated:

2. Pursuant to State's Motion in Limine filed on November 1, 1989, ... the [c]ourt rules as follows:

.... (b) In numeral 2, the motion is granted, prohibiting Defendant from referring to any alleged sexual conduct by the [Witness] with people other than the Defendant.

On June 30, 1992, at the beginning of the third trial, the court indicated that it would follow the foregoing order, stating: "I will do my best to follow earlier rulings on Motions in Limine. It does appear in the December 4th, 1991 order and item 2(b), [sic] any reference to alleged sexual conduct by the complainant with other people is prohibited in total. And I'll follow that." 2 (Emphasis added.) We interpret this order to properly prohibit reference by either Defendant or the State to the irrelevant issue of Witness' prior sexual experience.

Jury selection for the third trial began on June 30, 1992. However, on June 30, 1992, the jury panel was discharged before a jury was sworn. 3 Defendant's consequent motion for a mistrial was denied. Thereafter, a jury was selected from a new panel, its members sworn, and trial proceeded. On July 7, 1992, at the close of the State's case, Defendant's motion for a judgment of acquittal was denied. On July 9, 1992, during the State's closing argument, the prosecutor made the following statement about Witness' sexual status on May 9, 1986:

[L]ook very carefully at these photographs of the mattress that [Defendant] took her to on May 9th. Is this a place, ladies and gentlemen, where a girl, at the age of 14, for her first sexual experience, would choose to go to--

MR. PAFUNDI [ (defense counsel) ]: Objection Your Honor. May we approach?

Defendant moved to "reopen the defense case" to call witnesses "as to whether or not ... [Witness] ever did have sex with other individuals." He also moved for a mistrial.

The court denied both motions. It ordered the jury to disregard the prosecutor's statement. The court made the following ruling regarding the prosecutor's statement:

THE COURT: ... At this time, the [c]ourt will strike from the record the last portion of the prosecutor's argument, which stated to the effect, "Is this a place where a 14 year old girl for her first sexual experience would chose [sic] to go." That statement will be stricken and the jury will totally disregard that. Please proceed, Miss Silberstein [ (deputy prosecutor) ].

During the bench conference, the court also indicated that it would allow defense counsel to state to the jury that no evidence had been presented that the sexual contacts in May were the only ones Witness had ever had. The court stated in pertinent part that:

[THE COURT:] The [c]ourt will, also, allow the defense to state in its closing that, if the defense chooses, that the jury was not given any evidence about whether this was prior or only--whether these sexual contacts were the only ones of [Witness] or not, to at least allow the defense to rebut the statement that had been made by the State but not beyond that, Mr. Pafundi.

Apparently following up on the court's invitation, Defendant's counsel stated in closing argument that, "The prosecutor told you that this was [Witness'] first sexual experience. There is absolutely no evidence to support that contention. This remark was stricken from the record by the judge."

After the jury was charged, the court denied Defendant's "motion to reopen the evidence."

On July 9, 1992, the jury returned verdicts of guilty on all counts.

On July 20, 1992, Defendant moved for a new trial, one of the grounds being the subject of the prosecutor's remarks in closing argument.

On September 23, 1992, the court denied Defendant's motion for new trial, 4 finding there was "an insufficient basis to grant Defendant's [m]otion[.]"

Defendant, thereafter, filed this appeal contending that the prosecutor's remark constituted prejudicial misconduct and, as a result, the trial court erred in denying Defendant's motions to reopen the evidence, for mistrial, to dismiss the charges, and for a new trial. 5

I.

We agree with the trial court that the statement was improper. Evidence regarding Witness' prior sexual history or experience had been expressly excluded from trial by court order at the request of the State itself. Moreover, the prosecutor's statement, "Is this a place, ladies and gentlemen, where a girl, at the age of 14, for her first sexual experience, would choose to go to--" was not based on any evidence admitted at trial. In conformance with the court's order, no evidence was admitted concerning Witness' prior sexual experience. Contrary to the State's argument, Witness' virginity was not a matter that might be reasonably inferred from her testimony that she had not had sexual relations with her boyfriend of eight months at the time of the incidents. Quite simply, the State violated its own requested court order. 6

The State disingenuously argues that the statement was "not entirely improper." Plainly, the statement had no relevance to any material issue, and its only effect would be to invoke sympathy for Witness and antipathy towards Defendant. Cf. State v. Toro, 77 Hawai'i 340, 346-47, 884 P.2d 403, 410, reconsideration denied, 77 Hawai'i 340, 884 P.2d 403 (App.), cert. denied, 77 Hawai'i 489, 889 P.2d 66 (1994). This was the same prosecutor's third trial in the State's attempt to convict Defendant. It strains credulity to believe that the statement was mere inadvertence.

There comes a point at which the trial court should exercise its power to sanction improper statements of this kind. Failure to take deterrent action only encourages the belief that such conduct, while disapproved, is tolerated, leading not only to a lower standard of justice in our courts but also to needless appeals. In the future, trial courts should consider sanctions to deter such improper statements.

We next turn to the question of whether the judgment must be set aside as a result of this improper statement. II.

At the outset, we are faced with the question of which standard to apply under HRPP Rule 52(a). HRPP Rule 52(a) states in part that "any error, defect, [or] irregularity ... which does not affect substantial rights shall be disregarded." HRPP Rule 52(a) is the same as Federal Rules of Criminal Procedure Rule 52(a). HRPP ...

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