SUMMARY DISPOSITION ORDER
Defendant-Appellant Vance Okihara, also known as Vance M. Okihara (Okihara), appeals from the Judgment of Conviction and Sentence; Notice Of Entry, filed on February 1, 2019, in the Family Court of the First Circuit.
1
After a jury trial, Okihara was convicted of Abuse of Family or Household Members, in violation of Hawaii Revised Statutes (HRS) Section 709-906(1) (Supp. 2017).
2
On appeal, Okihara contends that the State committed several acts of prosecutorial misconduct during its closing argument, which adversely affected Okiharas right to a fair trial. Specifically, Okihara argues that during the States closing argument, the deputy prosecuting attorney (DPA) improperly: (1) imposed his personal opinion regarding the credibility of the complaining witness (CW); (2) introduced facts not in evidence; (3) commented on and drew attention to Okiharas failure to testify; (4) shifted the burden of proof to the defense; and (5) misstated the law regarding the States burden to prove guilt beyond a reasonable doubt.
Upon careful review of 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 resolve Okiharas contentions as follows:
The issue we find dispositive is whether the prosecutor improperly commented on and drew attention to Okiharas failure to testify at trial. Okihara asserts that he was “the only person who could contradict [the] CWs testimony” regarding the alleged abuse, and he chose not to testify. Okihara argues that in closing arguments, “[t]he DPA repeatedly referenced [the] CWs testimony as not being contradicted at trial, thereby calling attention to the fact that Okihara did not take the stand[,]” such that the “DPAs statements [would] naturally [be] taken [by the jury] as comment on Okiharas failure to testify in his own defense[.]”
Okihara did not object to the DPAs allegedly improper comments at trial. “When defense counsel fails to object to prosecutorial misconduct at trial, we may still recognize such misconduct if it affected the defendants substantial rights, such that the circuit courts failure to take corrective action constituted plain error.” State v. Austin, 143 Hawai‘i 18, 40, 422 P.3d 18, 40 (2018) (citing State v. Wakisaka, 102 Hawai‘i 504, 513, 78 P.3d 317, 326 (2003)).
[Our] analysis proceeds in two steps. First, we determine whether the prosecutors actions constituted misconduct. [State v. ]Clark, 83 Hawai‘i [289,] 304, 926 P.2d [194,] 209 [(1996)]. If we conclude that the prosecutors actions were improper, we analyze whether the action affected the defendants substantial rights, such that the circuit court plainly erred by not intervening and taking remedial action. Id.
Austin, 143 Hawai‘i at 40, 422 P.3d at 40.
“As a rule, the prosecution cannot comment on the defendants failure to testify because this infringes on the defendants right not to be a witness against her- or himself.” Wakisaka, 102 Hawai‘i at 515, 78 P.3d at 328 (citing Haw. Const. art. I, § 19). “The prosecutions comment on a defendants failure to testify will be deemed improper if that comment was ‘manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” Id. (quoting State v. Padilla, 57 Haw. 150, 158, 552 P.2d 357, 362 (1976) (quoting United States v. Wright, 309 F.2d 735, 738 (7th Cir. 1962))) (internal quotation marks omitted).
The prosecution is entitled to call attention to the fact that the testimony of the witnesses for the prosecution has not been controverted, unless the circumstance that the defendant is the only one who could possibly contradict that testimony would necessarily direct the jurys attention solely to the defendants failure to testify.
Padilla, 57 Haw. at 158, 552 P.2d at 362–63, overruled on other grounds by State v. Kaneaiakala, 145 Hawai‘i 231, 450 P.3d 761 (2019), and abrogated on other grounds by State v. Cabagbag, 127 Hawai‘i 302, 277 P.3d 1027 (2012); see Wakisaka, 102 Hawai‘i at 515, 78 P.3d at 328.
On appeal, Okihara contends that the DPA improperly commented on Okiharas failure to testify, by making the following underlined statements during closing and rebuttal arguments:
At the beginning of this case I told you we are here today because of what the defendant did to [the CW] on the night of February 23rd, 2018, when they were home alone.
Now, ladies and gentlemen, we have direct evidence of what happened that night. And direct evidence is defined on page 5 of your jury instructions. We have the testimony of [the CW].
And some of you may be wondering: Is that enough? And the answer to that is on page 10 of your jury instructions. If the testimony -- it is the testimony of a single witness, if believed, is enough to prove a fact. That makes sense because there were only two people there who could have told us what happened. Only two people were there when the defendant physically abused [the CW].
So why should we believe her? Three reasons, ladies and gentlemen. Reason number 1, her testimony was credible. Reason number 2, other evidence supports her testimony. And reason number 3, there is no contradictory evidence.
․
And I want to go back to just one more thing. Reason number 3, there is no contradictory evidence. And the defense does not have to call any witnesses and the defendant doesnt have to testify but that doesnt change the fact that there is no witness who tells you anything differently happened.
* * *
You just heard defense counsels closing arguments. Now, let me ask you this. Aside from arguments and her questions during the trial, which are not evidence, what evidence is there to say that this never happened? There isnt. The only evidence that we have is that [the CW] said that at some point that night he grabbed her by the shirt and threw her to the ground. The only evidence we have today is that at some point during that night he kicked her ․
(Emphases added.)
In State v. Faatea, No. CAAP-17-0000357, 2018 WL 3199236, at *3 (Haw. App. 2018), we considered a similar case in which the defendant was charged under HRS § 709-906(1) with abuse of a family member. We noted that only the complaining witness and the defendant were present when the alleged abuse occurred, the defendant was the only person who could contradict the complaining witnesss testimony, and the defendant chose not to testify at trial. 2018 WL 3199263, at *3. On three occasions, the prosecutor referenced the complaining witnesss testimony as not being contradicted at trial. Specifically, the prosecutor stated: “[CW] was telling the truth and there was no evidence to show she was not”; “Now, again, theres no evidence to show that she is lying[ ]”; and “If you choose to agree with [CW], and theres no reason not to, you must find the defendant guilty.” Id. We concluded that these comments “did indirectly and repeatedly reference and call attention to [the defendants] failure to testify at trial” and “would naturally and necessarily be taken as a comment on [the defendants] decision not to testify in his own defense[.]” Id.
Similarly, here, the evidence indicated that only Okihara and the CW were present when the alleged abuse occurred, such that Okihara was the only person who could contradict the CWs testimony about the incident. The DPA drew the jurys attention to this circumstance by stating: “[T]here were only two people there who could have told us what happened. Only two people were there when the defendant physically abused [the CW].” As in Faatea, the DPA then repeatedly referenced the CWs testimony as not being contradicted. In one of these instances, the DPA explicitly reminded the jury that Okihara did not testify, stating: “the defendant doesnt have to testify but that doesnt change the fact that there is no witness who tells you anything differently happened.” See Wakisaka, 102 Hawai‘i at 515-16, 78 P.3d at 328-29 (ruling that the State improperly commented on the defendants failure to testify, where the prosecution argued to the jury that the defendant was alone with the victim, that “[h]e would know,” and that “[i]f [the defendant] doesnt tell us, we can only look to [the victim] and see what her body tells us”). On this record, we conclude that the DPAs statements indirectly and repeatedly referenced and called attention to Okiharas failure to testify. We further conclude that the statements would naturally and necessarily be taken as a comment on Okiharas decision not to testify on his own defense, in violation of the direction in Padilla.
Having concluded that the States actions were improper, we next analyze whether they affected Okiharas substantial rights, such that the circuit court plainly erred by not intervening and taking remedial action. See Austin, 143 Hawai‘i at 40, 422 P.3d at 40 (citing Clark, 83 Hawai‘i at 304, 926 P.2d. at 209). In that regard, we will not overturn a defendants conviction on the basis of plainly erroneous prosecutorial misconduct unless “there is a reasonable possibility that the misconduct complained of might have contributed to the conviction.” Wakisaka, 102 Hawai‘i at 513, 78 P.3d at 326 (quoting State v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999)).
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.” Factors considered are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.
Id. (quoting State v. Sawyer, 88 Hawai‘i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)).
On this record, we cannot conclude beyond a reasonable doubt that the DPAs improper comments did not contribute to Okiharas conviction. In considering the nature of the conduct at issue, we recognize that the DPAs repeated statements calling attention to Okiharas failure to testify infringed on his constitutional right not to be a witness against himself. See Wakisaka, 102 Hawai‘i at 515, 78 P.3d at 328. We further note that no curative instruction was given to the jury regarding the DPAs improper comments – a factor that weighs heavily in Okiharas favor. See id. at 516, 78 P.3d at 329.
In reviewing the evidence, we also cannot say that the DPAs improper statements did not contribute to Okiharas conviction. Given that only Okihara and the CW were present when the alleged abuse occurred, the jury had to decide whether to believe the CWs account of events. In short, the determination of Okiharas guilt depended on the jurys assessment of the CWs credibility. In this context, the DPAs repeated statements that the CWs testimony was not contradicted likely had a direct impact on the jurys assessment of the CWs credibility and called attention to Okiharas right not to testify at trial. See State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986) (because credibility was a central issue in the case, the supreme court could not “conclude beyond a reasonable doubt that the prosecutors remarks had little likelihood of influencing this critical choice”). Given that no step was taken to cure the harm from the misconduct, we conclude there is a reasonable possibility that the error contributed to Okiharas conviction. Accordingly, we conclude there was plain error that affected Okiharas substantial rights.
In light of our conclusion, we do not reach Okiharas other arguments on appeal.
Therefore, IT IS HEREBY ORDERED that the Judgment of Conviction and Sentence; Notice Of Entry, filed on February 1, 2019, in the Family Court of the First Circuit, is vacated. The case is remanded to the Family Court for further proceedings consistent with this Summary Disposition Order.
FOOTNOTES
1
. The Honorable Kevin A. Souza presided.
2
. HRS § 706-906(1) provides, in relevant part:It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member ․For the purposes of this section:․“Family or household member”:(a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit[.]