State v. Jess

• Decision Date: 26 September 2003
• Docket Number: NO. 24339.,24339.
• Parties: STATE OF HAWAI`I, Plaintiff-Appellee, v. BRIAN JESS, Defendant-Appellant.
• Court: Hawaii Supreme Court

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STATE OF HAWAI`I, Plaintiff-Appellee, v. BRIAN JESS, Defendant-Appellant.

NO. 24339.

Supreme Court of Hawaii.

September 26, 2003.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT, (CR. NO. 00-1-0422).

Emlyn H. Higa, for the defendant-appellant, Brian Jess.

Mangmang Qiu Brown, deputy prosecuting attorney, for the plaintiff-appellee, State of Hawai`i.

(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ., and Acoba, J., dissenting).

SUMMARY DISPOSITION ORDER

The defendant-appellant Brian Jess appeals from the judgment of the first circuit court, the Honorable Victoria S. Marks presiding, filed on May 7, 2000, convicting him of and sentencing him for the offenses of robbery in the first degree, in violation of Hawai`i Revised Statutes (HRS) § 708-840(1)(b)(ii) (1993 & Supp. 2000), and unauthorized control of propelled vehicle, in violation of HRS § 708-836 (Supp. 2000). On appeal, Jess contends that: (1) the circuit court abused its discretion in denying his motion to suppress identification; (2) the circuit court erred in permitting the plaintiff-appellee State of Hawai`i [hereinafter, "the prosecution"] to argue that the circuit court had the "last word" on the propriety of the Honolulu Police Department's (HPD's) identification procedures; and (3) HRS § 706-662 (Supp. 2000), Hawaii's extended term sentencing statute, is unconstitutional in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we affirm the judgment of the circuit court and hold that: (1) because the record supports the circuit court's findings that, under the totality of the circumstances, the pretrial identifications were "sufficiently reliable" to be "worthy of presentation to and consideration by the jury," see State v. Okumura, 78 Hawai`i 383, 391-92, 894 P.2d 80, 88-89 (1995); State v. DeCenso, 5 Haw. App. 127, 131, 681 P.2d 573, 577-78 (1984), the circuit court did not err in denying Jess's motion to suppress identification; (2) although the deputy prosecuting attorney's (DPA's) statement, "the Court has the last word" regarding the suggestiveness and reliability of a witness's identification constituted prosecutorial misconduct, such misconduct was harmless beyond a reasonable doubt, inasmuch as (a) there is no basis in the record to suggest that the jury inferred from the DPA's statement that it was the province of the court to determine Jess's identity, (b) the circuit court expressly instructed the jury regarding the jury's role as the trier of fact, and (c) the prosecution adduced substantial evidence that Jess was, in fact, the person who committed the charged offenses, see State v. St. Clair, 101 Hawai`i 280, 286-87, 67 P.3d 779, 785-86, reconsideration denied, 101 Hawai`i 420, 70 P.3d 646 (2003); State v. Rogan, 91 Hawai`i 405, 412, 984 P.2d 1231, 1238 (1999); and (3) pursuant to this court's decision in State v. Kaua, 102 Hawai`i 1, 12-13, 72 P.3d 473, 484-85 (2003), HRS §§ 706-662(1) and (4) are not unconstitutional. Therefore,

IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed.

DISSENTING OPINION BY ACOBA, J.

I respectfully dissent on the ground that the deputy prosecuting attorney (DPA) inappropriately argued to the jury in rebuttal that the court had "the final word" on an "improper identification procedure" if the police "blow it." Coupled with the court's overruling of Defendant's objection, the effect of such argument would leave the jury with the erroneous impression that the identification procedure at issue in this case had been sanctioned by the court.

During the trial the prosecution voir dired Officer Frank Everett regarding Defense Exhibit L, General Order 81-1 dated 2/17/87 regarding a physical lineup or a photographic lineup:

Q [DPA] . . . Now the rules in here that talk about how a field show-up is done — are these rules written in stone? In other words, do you have to follow these each and every time a field show-up is done during the course of your career as a police officer?

A [OFFICER EVERETT] No, sir. Some things happen that I can't control on the scene . . . .

. . . .

Q So let me ask you this. Based on your training, your experience, and your knowledge of these guidelines, do they allow you the flexibility to make some on-the-spot judgments about how to conduct things?

A I believe so.

Q All right. And if you don't follow any of these procedures to the "T," are you going to get in trouble with your sergeant or the chief of police?

A I don't think so. There are guidelines. And in a perfect world, we — you know, we try to the best of our ability to follow those guidelines.

Q Okay. And is it your understanding that ultimately, whether there's been an improper identification or not, it's not even decided by the police, but by the Court; right?

A Yes, sir.

(Emphasis added.) Defendant did not object to the foregoing testimony. The failure to object was plain error. See Hawai`i Rules of Penal Procedure (HRPP) Rule 52(b) (1994) (stating that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court"); seealsoState v. Schroeder, 76 Hawai`i 517, 532, 880 P.2d 192, 207 (1994) (explaining that "where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not brought to the attention of the trial court"). The foregoing testimony led to the following improper rebuttal argument which Defendant objects to on appeal:

[DPA]: Well, [the defense] keep[s] talking about these guidelines. They're just guidelines. You'll see words in there like if practical, do this, if desirable, do that. Nothing is written in stone. But here's the bottom line on this whole I.D. guideline issue. I asked Officer Numasaki.¹ I said, Officer, if you do an improper I.D., isn't it true that the final word on that is with the judge? And he said yes. . . .

[DEFENSE COUNSEL]: I object, Judge.

[DPA]: That was the testimony.

COURT: Overruled.

[DEFENSE COUNSEL]: That doesn't mean that what the witness said was accurate.

COURT: Overruled.

[DPA]: That's what he said.

Officer Numasaki is no stranger to this procedure. If they blow it, the police don't have the last word, we don't have the last word, the Court has the last word.

[DEFENSE COUNSEL] I object, Your Honor. That's incorrect.

[DPA]: That was the testimony.

COURT: You want to move on?

[DPA]: I'm moving on, Your Honor. . . .

(Emphases added.) Arguing to the jury that if the ...