State v. Walsh, No. 29790 (Haw. App. 5/26/2010), 29790.
| Decision Date | 26 May 2010 |
| Docket Number | No. 29790.,29790. |
| Parties | STATE OF HAWAI'I, Plaintiff-Appellee, v. TIMOTHY A. WALSH, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CRIMINAL NO. 08-1-0418(3)).
On the briefs:
Craig W. Jerome, Deputy Public Defender, for Defendant-Appellant.
Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
Defendant-Appellant Timothy A. Walsh (Walsh) appeals from the March 31, 2009 Judgment, entered in the Circuit Court of the Second Circuit (circuit court),1 finding him guilty of Assault in the Second Degree in violation of Hawaii Revised Statutes § 707-711(1) (b) (Supp. 2009), sentencing him to five years of incarceration with a mandatory minimum of one year and eight months, and ordering him to pay restitution of $1,137.10 and a Crime Victim Compensation fee of $105.00.
On appeal, Walsh contends that (1) his rights under the Hawai'i Constitution were violated by the prosecutor's comments during closing argument that Walsh was able to tailor his testimony because he was present during jury voir dire and while other witnesses testified, (2) the circuit court's failure to instruct the jury that Walsh had a right to be present during the trial proceedings constituted plain error, and (3) the circuit court's order of restitution was invalid.
For the reasons discussed below, we reverse the judgment and remand the case to the circuit court.
The charge against Walsh stems from a May 31, 2008 altercation between Walsh and several individuals in the town of Klhei, Maui.
Walsh and his sister, Stephanie, were arguing in the Kukui Mall (Mall) parking lot outside of the Oceans Bar and Grille (Oceans) at approximately 1:30 a.m. when a group of men in a truck parked in a nearby parking stall interrupted, cursed at, and began arguing with Walsh. Walsh cursed back at the men and told them to mind their own business. Four or five of the men advanced on Walsh and a fight ensued.
The confrontation went on for some time, with Walsh getting battered, kicked, and pushed around the parking lot. At some point, Walsh curled up on the ground because he was being kicked and stepped on. After some time, Walsh was able to crawl and stumble up.
According to Walsh, once he stood up, he stumbled toward the complainant, Kapena Kramer (Kapena), whereupon Walsh punched Kapena in the face. Walsh testified, "And then I got up. . . I just swung blindly, ... I was trying to hit whoever was around me because I was getting attacked."
John Cooprider (Cooprider), Oceans' general manager, however, testified that he observed Walsh approaching Kapena in a "calm, cool, collective (sic)," manner and without any apparent injuries. Cooprider said that he "wasn't alarmed by [Walsh] by any means." He saw Walsh look to his left, observe Kapena, pause, and then "turn[] with everything he had and hit [Kapena]". According to Cooprider, Kapena was positioned so that he could not see Walsh approaching. Walsh's punch knocked Kapena unconscious and fractured his jaw in two places.
Maui Police Officers arrived and arrested Walsh for Assault in the Second Degree. On June 27, 2008 Walsh was charged via Felony Information with "recklessly caus[ing] serious or substantial bodily injury to Kapena Kramer, thereby committing the offense of Assault in the Second Degree in violation of Section 707-711 (1) (b) of the Hawaii Revised Statutes."
During closing argument, the prosecutor stated, in relevant part:
Some of you during voir dire and jury selection were asked about what you would look at, and the defense went into great detail. Remember one thing that was asked by me to the Defendant? You know, the Defendant, first of all, is entitled, since he's on trial here, is entitled to hear and see all the witnesses. But with that becomes [sic] the facts [sic] that he's benefitted from seeing all these witnesses. Before he got up on that stand, he saw each and every one of the witnesses heard what they were going to say.
What's important about that is not only that he heard the voir—diring [sic] your questions, which some of you had mentioned, I believe you said well, you know, if they looked me in the eye. Okay, so he gets up here and looks each one of you in the eye. See how sincere I am? Does that mean you're sincere?
(Emphasis added). Walsh did not object to the prosecutor's argument.
In addition to incarceration, the circuit court ordered Walsh to pay restitution of $1,137.50 and a Crime Victim Compensation fee of $105.00. The manner of the restitution payment was "to be determined by the Director of the Department of Public Safety."
Walsh raises four points of error:
(1) The circuit court erred in allowing the prosecutor to make constitutionally impermissible arguments during closing argument that because Walsh was present during trial, he heard the testimony of all other witnesses and the voir dire of the jury, and tailored his testimony to match the evidence and appear more credible;
(2) The prosecutor's statements during closing argument constituted prosecutorial misconduct, and deprived Walsh of his right to due process and a fair trial;
(3) The circuit court plainly erred in failing to instruct the jury on Walsh's constitutional right to be present during the voir dire of the jury and the testimony of the witnesses, and that the jury must not draw any unfavorable inference based on his presence throughout the trial; and
(4) The circuit court's order of restitution was invalid because it delegated the decision of the "method and manner of payment" to the Director of the Department of Public Safety.
The appellate court reviews questions of constitutional law de novo under the "right/wrong" standard and, thus, exercises its "own independent judgment based on the facts of the case." State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000) (internal quotation marks and citation omitted).
"Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999) (internal quotation marks and citations omitted) (quoting State v. Sawyer, 88 Hawai'i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)).
"Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict only where the actions of the prosecutor have caused prejudice to the defendant's right to a fair trial." State v. McGriff, 76 Hawai'i 148, 158, 871 P. 2d 782, 792 (1994). "In order to determine whether the alleged prosecutorial misconduct reached the level of reversible error, [the appellate court considers] the nature of the alleged misconduct, the promptness or lack of a curative instruction, and the strength or weakness of the evidence against defendant." State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).
The appellate court "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (quoting State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998)).
"Where defense counsel failed to object to the statements made during the Prosecutor's closing argument, we. . . determine whether the statements were improper and, if so, whether they constituted plain error that affected [Defendant's] substantial rights." State v. Suan, 121 Hawai'i 169, 174, 214 P.3d 1159, 1164 (App. 2009) (citing State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996)).
The standard of review for jury instructions that were not objected to at trial was clarified in State v. Nichols, 111 Hawai'i 327, 141 P.3d 974 (2006), where the Hawai'i Supreme Court held that:
although as a general matter forfeited assignments of error are to be reviewed under [Hawai'i Rules of Penal Procedure (HRPP)] Rule 52(b) plain error standard of review, in the case of erroneous jury instructions, that standard of review is effectively merged with the HRPP Rule 52(a) harmless error standard of review because it is the duty of the trial court to properly instruct the jury. As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.
Id. at 337, 141 P.3d at 984. Thus, the appellant must first demonstrate instructional error by rebutting the "presumption that unobjected-to jury instructions are correct." Id. at 337 n.6, 141 P.3d at 984 n.6; accord State v. Eberly, 107 Hawai'i 239, 250, 112 P.3d 725, 736 (2005). If the appellant is able to rebut this presumption, the burden shifts to the State to prove that the error was harmless beyond a reasonable doubt because:
[e]rroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. However, error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled.
Nichols, 111...
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