State Of Haw.'i v. Benson

• Decision Date: 30 June 2010
• Docket Number: CRIMINAL NO. 0 7-1-0456(3),NO. 29846,29846
• Parties: STATE OF HAWAI'I, Plaintiff-Appellee, v. LYLE SHAWN BENSON, Defendant-Appellant
• Court: Hawaii Court of Appeals

STATE OF HAWAI'I, Plaintiff-Appellee,

v.LYLE SHAWN BENSON, Defendant-Appellant

NO. 29846

CRIMINAL NO. 0 7-1-0456(3)

Intermediate Court Of Appeals Of The State Of Hawai'i

June 30, 2010

Karen T. Nakasone, Deputy Public Defender, for Defendant-Appellant.

Associate Judge

Pamela I. Lundquist, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.

Associate Judge

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

SUMMARY DISPOSITION ORDER

By: Fujise and Reifurth, JJ.; and Nakamura, C.J., dissenting

Defendant-Appellant Lyle Shawn Benson (Benson) appeals from the April 14, 2009 Judgment, entered in the Circuit Court of the Second Circuit (circuit court), ¹ finding him guilty of Assault Against a Law Enforcement Officer in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-712.5 (Supp. 2009), and sentencing him to one year of imprisonment and five years of probation.

On appeal, Benson contends that the circuit court erred by (1) failing to give the jury a self-defense instruction, (2) denying his motion in limine to introduce evidence of an arresting officer's disciplinary record, (3) denying his motion for a mistrial, (4) excluding certain other evidence, and (5) overruling objections to improper comments by the prosecutor during closing argument. Benson further contends that he was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution and article I, § 14 of the Hawai'i Constitution.

For the reasons discussed below, we agree that the Prosecutor's comments in closing argument amounted to impermissible bolstering and, hence, prosecutorial misconduct; that the State's case hinged on the credibility of its witnesses; and that we cannot, therefore, conclude that the error was harmless beyond a reasonable doubt. Consequently, we vacate the judgment and remand the case to the circuit court.

I. PROSECUTORIAL MISCONDUCT IN THIS CASE REQUIRES THAT THE JUDGMENT BE VACATED AND THE CASE REMANDED

During closing argument, to rebut defense counsel's claim that Maui Police Department (MPD) officers lied during their testimonies, the Prosecutor stated:

[Prosecutor]: Your common sense and reason you can use. You know what's happening when things are going fast like that. You know from what the officers themselves testified to.

These officers, what they want you to believe, is four officers got together and decided, you know, with their careers they're going to make something up over one more obnoxious defendant they have to deal with.

[Defense Counsel]: Your Honor, I'm going to object, that's improper argument. With regard to their careers

[Prosecutor]: No, he's putting in the credibility

THE COURT: Part of it appears to be proper argument, and part of inappropriate. So I'll sustain the objection. And you may rephrase your argument.

[Prosecutor]: What he wants you to believe is that these officers are lying, they're going to jeopardize their career

[Defense Counsel]: Your Honor, I'm going to object. That's exactly--

THE COURT: The objection is overruled.

[Prosecutor]: They're going to jeopardize their career over some guy they just met. Common sense and reason they deal with obnoxious guys every day and they're going to jeopardize their career on that defendant on that day. Four separate officers. You believe this guy, you can't believe this guy.

The Hawai'i Supreme Court has stated that "whenever a defendant alleges prosecutorial misconduct, this court must decide: (1) whether the conduct was improper; (2) if the conduct was improper, whether the misconduct was harmless beyond a reasonable doubt; and (3) if the misconduct was not harmless, whether the misconduct was so egregious as to bar reprosecution." State v. Maluia, 107 Hawai'i 20, 26, 108 P.3d 974, 980 (2005).

1. The Prosecutor's Remarks Were, On Balance, Improper

During closing argument, a prosecutor "is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence." State v. Carvalho, 106 Hawai'i 13, 18, 100 P.3d 607, 612 (App. 2004). Prosecutors, however, must refrain from expressing their personal views as to the credibility of witnesses. State v. Sanchez, 82 Hawai'i 517, 534, 923 P.2d 934, 951 (App. 1996); ABA Standards for Criminal Justice 3-5.8 (3d ed. 1993); see United States v. Young, 470 U.S. 1, 18-19 (1985) ("The prosecutor's vouching for the credibility of witnesses... carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.").

The reason for the rule is that "expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate a lawyer from the cause being argued." State v. Marsh, 68 Haw. 659, 660-61, 728 P.2d 1301, 1302 (1986) (internal quotation marks and brackets omitted) (citing ABA Standards for CRiMiNAL JUSTiCE 3.89 cmt.).

By expressing incredulity at the prospect of the police officers giving false testimony, the Prosecutor's comments here bolstered the officers' testimony. in State v. Suan, 121 Hawai'i 169, 214 P.3d 1159 (App. 2009), this court held in a similar situation that it was improper for the prosecutor to argue during closing argument that "these officers have integrity and... their testimony really is a testament to the fact that the system does work because... they could have come in here, no reports, told you anything, but they didn't[.]" Id. at 174, 214 P.3d at 1164 (internal quotation marks and brackets omitted). As in Suan, the Prosecutor's comment on the credibility of the officers' testimony here had no relation to any evidence presented to the jury and was, therefore, improper.

The State contends that the Prosecutor's comments were not improper because "they were not expressions of personal opinions." in support, the State relies extensively on the case of State v. Nakoa, 72 Haw. 360, 817 P.2d 1060 (1991). Nakoa, however, does not stand for the proposition for which the State offers it.

In Nakoa, the court addressed the prosecutorialmisconduct test's first prong (whether the conduct was improper) and noted that "[w]e have held that prosecutors are bound to refrain from expressing their personal views as to... the credibility of witnesses." 72 Haw. at 371, 817 P.2d at 1066. Thereafter, the court addressed the test's second prong (whether, although improper, the Prosecutor's comments were harmless beyond a reasonable doubt), and concluded that, in sum, including the fact that Nakoa's counsel had offered no objection at trial to the prosecutor's comments, the prosecutor's comments were harmless beyond a reasonable doubt. Id. insofar as Nakoa helps determine whether the Prosecutor's comments here were proper or improper, however, it stands squarely for the proposition that they were improper because they reflected the Prosecutor's personal views as to the credibility of the witnesses.

it is widely recognized that a prosecutor may not argue that a witness is more credible because of his or her status as a police officer. E.g., Suan, 121 Hawai'i at 174-75, 214 P.3d at 1164-65. Whether police officers put their careers in jeopardy if they testify falsely was not an issue in the instant trial, and no evidence was introduced on the question. As a result, such a reference is generally inappropriate as part of closing argument. See United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (prosecutor's statement that police officer witness had no reason to lie was improper); United States v. Cornett, 232 F.3d 570, 575 (7th Cir. 2000) (prosecutor acted improperly by stating that police officers "take an oath to follow the law" because the comment constituted vouching for the witnesses' good faith); United States v. Gallardo-Trapero, 185 F.3d 307, 319 (5th Cir. 1999) (prosecutor's statement during closing argument asking, "[d]o you think that agents for the federal government and a prosecutor for the federal government, for the United States..., are going to risk their career" by committing perjury was improper); Davis v. State, 663 So. 2d 1379, 1382 (Fla. Dist. Ct. App. 1995) (prosecutor "asking the jury to believe a police officer over an ordinary citizen because police officers place their careers in jeopardy by not telling the truth[,]" is improper bolstering); State v. Staples, 623 A.2d 791, 793 (N.J. Super. Ct. App. Div. 1993) (reversal required when prosecutor told jury that officer witness "would not put his career and everything that comes with that on the line by coming in here and testifying falsely[,]" and intimating that another officer witness's pension benefits, accumulated over twelve years, would be jeopardized); People v. Clark, 542 N.E.2d 138, 142 (Ill. App. Ct. 1989) (prosecutor's comments suggesting that police officers would not give up their pensions and put their families' security in jeopardy by perjuring themselves were improper).

The State is correct that the Prosecutor's comments did not misstate the law, shift the burden of proof, or contrive to stimulate racial prejudice. The State is incorrect in suggesting, however, that we require multiple instances of improper conduct in closing argument before we will find misconduct. The number of improper conduct incidents informs our analysis under the harmless error prong of the test, but it has little bearing on our initial determination of propriety. See Maluia, 107 Hawai'i at 24-25, 108 P.3d at 978-79 (single incident of prosecutor asking defense witness to comment on prosecution witnesses' veracity is improper); State v. Senteno, 69 Haw. 363, 366-67, 742 P.2d 369, 372 (1987) (single incident of improper argument during closing was improper, but ultimately harmless); of. Nakoa, 72 Haw. at 371, 817 P.2d at 1066 (single incident of alleged misconduct was harmless beyond a reasonable doubt).

Although the...