State v. Maluia

• Decision Date: 24 March 2005
• Docket Number: No. 25689.,25689.
• Citation: 107 Haw. 20,108 P.3d 974
• Parties: STATE of Hawai`i, Respondent-Plaintiff-Appellee, v. Sapatumoeese MALUIA, Petitioner-Defendant-Appellant.
• Court: Hawaii Supreme Court

108 P.3d 974

107 Haw. 20

STATE of Hawai`i, Respondent-Plaintiff-Appellee, v. Sapatumoeese MALUIA, Petitioner-Defendant-Appellant.

No. 25689.

Supreme Court of Hawai`i.

March 24, 2005.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, for petitioner-defendant-appellant Sapatumoeese Maluia, on the writ.

LEVINSON, ACOBA, and DUFFY, JJ.; with ACOBA, J., concurring separately; and NAKAYAMA, J., concurring separately and dissenting, with whom MOON, C.J., joins.

Opinion of the Court by DUFFY, J.

Following a jury trial in the Circuit Court of the First Circuit, the Honorable Richard Perkins presiding, petitioner-defendant-appellant Sapatumoeese Maluia was found guilty of murder in the second degree in violation of Hawai'i Revised Statutes (HRS) § 707-701.5 (1993).¹ On November 29, 2004, the Intermediate Court of Appeals (ICA) issued a summary disposition order (SDO) affirming the circuit court's February 12, 2003 judgment. State v. Maluia, No. 25689, 106 Hawai'i 80, 101 P.3d 689, 2004 WL 2700014 (Haw.App. November 29, 2004) [hereinafter, the ICA's SDO]. Maluia subsequently applied for a writ of certiorari to review the ICA's SDO.

We granted Maluia's application for a writ of certiorari for the sole purpose of addressing the following issue of first impression in this jurisdiction: whether the prosecution may ask a defendant to comment on the veracity of another witness. For the reasons discussed infra, we agree with Maluia that the prosecution may not ask a defendant to comment on another witness's veracity. Nevertheless, based on the record presented, we hold that this error was harmless beyond a reasonable doubt and therefore affirm the ICA's SDO.

I. BACKGROUND

At approximately 8:30 p.m. on October 12, 2000, at Ke'ehi Lagoon Park, Maluia repeatedly hit Feao Tupuola, Jr. with a baseball bat. Tupuola was pronounced dead at 9:31 p.m. On October 18, 2000, an O'ahu grand jury indicted Maluia for second degree murder.

At trial, the prosecution presented Eugene Kepa, Jr. and Deidra Ahakuelo as witnesses. Kepa and Ahakuelo were at Ke'ehi Lagoon Park having dinner with their children on October 12, 2000. Kepa did not know either Maluia or Tupuola before this incident.² Kepa testified that Maluia was sitting in his car when Tupuola approached the car, carrying a knapsack and two plate lunches; Maluia was in the driver's seat, then got out of the car and got back in the car on the passenger side. Tupuola got in the driver's seat and put the car in reverse. He then put the car back in park and got out of the car quickly, after which he moved to the front of the car and tripped over the curb. According to Kepa, Maluia retrieved a baseball bat from the back seat of the car as he got out of the car. Maluia approached Tupuola, holding the bat in such a way that Tupuola could not have seen the bat. Maluia then hit Tupuola's hands with the bat several times, after which Maluia hit Tupuola in the head repeatedly and forcefully. Kepa did not see Tupuola try to hurt Maluia in any way, nor did Kepa see Tupuola with any weapons. Kepa testified that Maluia twice left Tupuola to wash his bat at a faucet on the other side of the parking lot, and that when Maluia returned to Tupuola he continued to hit him with the bat. When Maluia stopped, he hugged Tupuola, laid him down on the ground, and then got in his car and drove away. Ahakuelo (Kepa's girlfriend) also testified that Maluia hit Tupuola repeatedly with a baseball bat, that he rinsed off his bat at the faucet, and that he continued to hit Tupuola after returning from the faucet. Ahakuelo further testified that Maluia put his arms around Tupuola at the end of the incident.

Maluia testified that he and Tupuola used to socialize at Ke'ehi Lagoon Park, but that, leading up to the incident on October 12, 2000, Tupuola had become increasingly hostile towards him. Maluia speculated that Tupuola had become infatuated with Maluia's friend, Lisa Masseth, and that Tupuola became upset when he saw Maluia speaking with Masseth.

Maluia testified that, shortly after he arrived at the park on October 12, 2000, Tupuola assaulted him (specifically, that Tupuola "falsecracked" him). Another friend of Maluia's, Jessie Tupua, told Maluia that Tupuola was drunk and that he (Maluia) should not worry about the assault; Tupua (Maluia's friend) then escorted Maluia back to Maluia's car. Maluia testified that "as far as I was concerned that thing is pau [³] already." (Tupua testified that he saw a group of people separate Maluia from Tupuola, but that he did not see Tupuola assault Maluia; in fact, none of the defense's witnesses (other than Maluia) testified as to the alleged assault.)

Maluia then testified that, approximately twenty minutes later (while he was still in his car), Tupuola rushed up to Maluia's car and said, "`Fuck you, old man. Now I'm gonna finish what I started out to do.'" Maluia stated that he was afraid and that he started to leave in his car, but that he decided to stay because his friends were there and because he had to return to the park the next day. As he started to get out of his car, Maluia stated, Tupuola "made a move with his hand, a real quick move under his shirt." Maluia thought that Tupuola was reaching for some kind of weapon, so Maluia went back to his car and pulled out a bat. Maluia stated that Tupuola then charged him, so he started swinging the bat at Tupuola's hands to knock whatever weapon he had out of his hands. Maluia believed that Tupuola was trying to get the bat away from him, and he was afraid that if Tupuola got the bat he would begin hitting Maluia with it. Maluia testified that he hit Tupuola, breaking his bat and knocking Tupuola down. Maluia then started to leave, at which point Tupuola got up and ran towards his knapsack. Maluia was concerned that Tupuola might have a weapon because, prior to this incident, Tupuola had shown Maluia a knife with a four- to six-inch blade and had discussed his knowledge of guns with Maluia. Maluia then got another bat out of his car. Maluia testified that Tupuola was still looking through his knapsack, and Maluia said, "'What are you doing? What are you doing?'" Maluia then started hitting Tupuola again because he was afraid of what Tupuola would retrieve from his knapsack. Maluia testified that "I kept swinging. I kept swinging. And I just lost it, you know. I just lost it. AndI — I lost it." Maluia testified that he did not really remember what happened after that.

Maluia was arrested at 9:32 p.m. on October 12, 2000. Maluia's Blood Alcohol Content (BAC) was 0.131.⁴ Tupuola's BAC (according to the forensic pathologist) was 0.195.

During the cross-examination of Maluia, the prosecution asked, "Do you know whether [Kepa and Ahakuelo] would have any reason to make up a story against you ... that you can think of?" Maluia's counsel objected to the question, and the circuit court overruled the objection. Maluia testified that he could not think of any reason. On redirect examination, the circuit court refused to allow Maluia's counsel to question him regarding this statement.

On September 30, 2002 (approximately three hours after the circuit court finished instructing the jury), the jury found Maluia guilty of second degree murder. The circuit court sentenced Maluia to an indeterminate maximum term of imprisonment for life with the possibility of parole. The circuit court also ordered Maluia to pay restitution in the amount of $433.41 in addition to a fee of $2,200.00 to the Crime Victim Compensation Fund.

Maluia appealed, and on March 17, 2004, the case was assigned to the ICA. On appeal to the ICA, Maluia argued that he was entitled to a new trial because of prosecutorial misconduct and because the circuit court improperly instructed the jury on extreme mental or emotional disturbance (EMED). On November 29, 2004, the ICA issued its SDO affirming the judgment of conviction and sentence.

Maluia filed an application for a writ of certiorari on December 29, 2004. In his Application, Maluia does not contest the ICA's conclusion with respect to the EMED instruction, but he does contest the ICA's conclusion with respect to his allegations of prosecutorial misconduct. Specifically, Maluia alleges that the following four actions constituted prosecutorial misconduct: (1) during cross-examination of Maluia, the prosecution improperly required Maluia to assess the veracity of witnesses Kepa and Ahakuelo; (2) during closing argument, the prosecution improperly commented on Maluia's theories of his defense by arguing that Maluia's two defenses — self-defense and EMED — were inconsistent; (3) during closing argument and rebuttal, the prosecution argued that Maluia fabricated his testimony; and (4) during rebuttal, the prosecution improperly shifted the burden of proof to the defendant by implying that, had Tupuola actually assaulted Maluia, Maluia would have had a witness to testify to that fact. The ICA responded to these arguments by concluding: "In each instance [of alleged prosecutorial misconduct], either (1) the prosecutor did not express or imply what Maluia charges the prosecutor expressed or implied; or (2) the prosecutor did not commit prosecutorial misconduct; or (3) the utterances were harmless beyond a reasonable doubt; or (4) a combination thereof." (Citations omitted.)

We granted Maluia's Application on January 10, 2005, and we affirm the ICA's SDO. On the record presented, we agree with the ICA's conclusions with respect to Maluia's claims of prosecutorial misconduct in closing and rebuttal arguments. The ICA did not, however, specifically address the issue of whether the prosecution acted improperly in asking Maluia to comment on the veracity of prosecution witnesses Kepa and Ahakuelo. As this is an issue of first impression for this court, we will now address it.

II. STANDARD OF REVIEW

Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard,

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