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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCAP-XX-XXXXXXX
                                                                 29-JUN-2018
                                                                 08:00 AM




              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                   ---o0o---


                              STATE OF HAWAI#I,
                             Plaintiff-Appellee,

                                       vs.

                              GERALD L. AUSTIN,
                            Defendant-Appellant.


                               SCAP-XX-XXXXXXX

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                 (CAAP-XX-XXXXXXX; CR. NO. 12-1-0127)

                                 JUNE 29, 2018

    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.1

           OPINION OF THE COURT EXCEPT AS TO PART III(D)(3)
     AND OPINION OF NAKAYAMA, J., AS TO PART III(D)(3), IN WHICH
                       RECKTENWALD, C.J., JOINS

             Defendant-Appellant Gerald L. Austin (Austin) appeals

the judgment of the Circuit Court of the First Circuit (circuit


1
      Justice Nakayama, joined by Chief Justice Recktenwald in full and by
Justice McKenna, except as to Part III(D)(3), writes for the majority of the
court except as to Part III(D)(3). Justice Pollack, joined by Justice McKenna
in full and Justice Wilson in part, concurs in the judgment and writes for the
majority of the court with respect to the issue addressed in Part III(D)(3) of
Justice Nakayama’s opinion. Justice Wilson dissents in all other respects.
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court) convicting him of murder in the second degree and

sentencing him to an extended sentence of life imprisonment

without the possibility of parole.        On appeal, Austin asserts

five points of error:     (1) the circuit court abused its

discretion in allowing Plaintiff-Appellee State of Hawai#i (the

State) and its witnesses to refer to Edith Skinner (Skinner) as

the “victim” or “murder victim” at trial; (2) the circuit court

erred in excluding the statements of Anne Wanous (Wanous) as

hearsay; (3) the circuit court erred in refusing to instruct the

jury on the lesser included offenses of manslaughter and assault;

(4) the circuit court erred in denying Austin’s motion for a new

trial because the prosecutor engaged in several acts of

misconduct during closing arguments; and (5) the circuit court

erred in sentencing Austin to an extended sentence of life

imprisonment without the possibility of parole in violation of

the ex post facto clause of the United States Constitution and

Hawai#i Revised Statutes (HRS) § 1-3.

          For the reasons discussed below, we agree that Austin’s

extended sentence of life imprisonment without the possibility of

parole violated the ex post facto clause of the United States

Constitution and HRS § 1-3.      But, we conclude that Austin’s other

points of error do not warrant vacating his conviction.

Therefore, we affirm in part and vacate in part the circuit

court’s June 18, 2014 Judgment, Guilty Conviction, and Sentence

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and remand the case to the circuit court for resentencing.

                             I.   BACKGROUND

           Skinner was born on April 16, 1908, and was eighty-one

years old at the time of her death in 1989.          Skinner did not have

any family in Hawai#i, but she had a son, Stephen Skinner, who

lived in California and with whom she spoke every weekend.

Skinner had several close friends and enjoyed baking, playing

bridge, and swimming at the Elks Club.

           Skinner lived alone in Apartment 706 at the Makua Ali#i

Senior Center located at 1541 Kalâkaua Avenue, which was

generally restricted to low-income tenants over the age of sixty-

two.   In 1989, the building was secured by an interphone system

whereby visitors would call the apartment that they wanted to

visit and the resident could let them in.         Upon entering the

building, visitors could access any floor they wanted.

           On the afternoon of July 25, 1989, Skinner’s body was

discovered in her apartment after two neighbors noticed that she

had not picked up the newspaper from her front door and that she

did not respond when they rang her doorbell.          Her body was found

lying on top of the bed.      The bed did not have any pillows,

blankets, sheets or comforters on it.        The apartment was well-

kept, and there were no obvious signs that a struggle or an

altercation had taken place.

           During his investigation of Skinner’s death, Honolulu

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Police Department (HPD) Detective Kenneth Ikehara (Detective

Ikehara) canvassed the Makua Ali#i building for witnesses and

interviewed several of Skinner’s neighbors.           Pursuant to these

efforts, on July 26, 1989, Detective Ikehara spoke to Wanous and

took her recorded statement.        Wanous’s mother lived in the unit

next to Skinner’s, and Wanous was visiting on the date of the

incident.

            In her recorded statement, Wanous stated that she woke

up at approximately 4:50 a.m. or 5:00 a.m. on the morning of July

25, 1989 to smoke a cigarette at a chair and table located “right

outside [her] mother’s apartment door.”          Wanous related that she

was “leaning forward” and smoking the cigarette when she heard

the sound of “something dropping.”         Upon hearing the noise,

Wanous looked to the right and saw a black2 male carrying two

stuffed pillow cases leave Skinner’s apartment.            Wanous averred

that she saw the man near the door to Skinner’s apartment for

about three to five seconds before he turned and walked into the

elevator.

            Wanous stated that when she observed the man, the

corridor lights were on, but it was still dark out and there was

no sunlight.    Wanous noted that although she “seen the [man’s]

arms was black,” she “couldn’t make out” the man’s face “because



2
     Austin is a Caucasian male.

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it was just one color all the way.”        She also stated that when

the man briefly turned towards her, she could see “the whites of

his eyes” but “couldn’t see anything else.”          When asked by

Detective Ikehara if Wanous could tell what the suspect’s race

was, Wanous responded that the suspect was “black,” but further

related an unknown individual had “corrected” her to say “negro.”

Upon being asked about the suspect’s “complexion,” Wanous

rejected the idea that the suspect was “black, black” and instead

described that the suspect was “dark.”         Wanous opined that she

was not sure if she would be able to recognize the man if she saw

him again.

            Wanous also discussed a few sketches of the suspect she

had drawn on a paper bag, which she had given to Detective

Ikehara.    She stated that a “feeling” helped guide her as she

sketched:
            [Wanous:] So I was told this is wrong.
            [Detective Ikehara:] Who, what do you mean? This
            looks wrong, just tell me.
            [Wanous:] It’s a feeling that come to me.
            [Detective Ikehara:] Feeling that came to you, okay.
            So this drawing is what, of the guy that you saw?
            [Wanous:] I think I saw.
            [Detective Ikehara:] Okay.
            [Wanous:] Something kept telling me, sketch it,
            sketch it, sketch it, you know, I’m not a very good
            artist, but this, sketch it, sketch it, (inaudible)
            sketch it.

Detective Ikehara then attempted to clarify what Wanous meant:
            [Detective Ikehara:] Well, and that just, you just
            decided something was telling you to do, draw this?
            [Wanous:] Yeah, you know, did that.
            [Detective Ikehara:] Okay.
            [Wanous:] Help my hand and sort of did that, guided


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          like.
          [Detective Ikehara:]   And that’s on the second
          drawing?
          [Wanous:] Yes.

          Also on July 26, 1989, Wanous met with police sketch

artist Joe Aragon (Aragon) to prepare a composite drawing of the

suspect before Detective Ikehara took her recorded statement.

When Detective Ikehara asked Wanous if she could state that the

suspect looked like the composite drawing she helped create, she

said “[n]o.”   She only confirmed that the sketch matched her

descriptions of the suspect’s hair, eyes, and facial shape.

          On July 26, 1989, Detective Ikehara obtained a written

statement from Wanous’s sister, Orchid Ah Loy (Ah Loy), in which

she stated that Wanous’s other sister, Yvonne Clason (Clason),

had told her (Ah Loy) that Wanous had told Clason that she saw a

black male exit Apartment 706 “on either Monday, 7-24-89, or

Tuesday, 7-25-89, at about 0530 hours,” and that the man “was

carrying a pillow case.”      The next day, Detective Ikehara took

the recorded statement of Karen Evenson (Evenson), Wanous’s

niece, wherein she stated that Wanous “told her that a black male

carrying pillow cases had exited unit #706 at about 0530 hours,

Tuesday, 7-25-89.”

          On July 26, 1989, Dr. Kanthi De Alwis (Dr. De Alwis)

performed an autopsy on Skinner’s body.         Dr. De Alwis determined

that the cause of death was asphyxia due to manual strangulation.



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Dr. De Alwis further testified that she recovered a “black or

darker-colored” pubic hair that stood out amongst Skinner’s

light-colored hair, which she preserved as evidence.            Dr. De

Alwis also took samples of fluid found in the decedent’s vagina,

the testing of which revealed the presence of recently deposited

semen.

            On August 3, 1989, Detective Ikehara submitted a draft

of a crime information bulletin.         The composite drawing that

Wanous and Aragon had created was not submitted with the crime

information bulletin based upon Aragon’s opinion that the drawing

did not reflect an accurate description of the suspect, as Wanous

was not able to sufficiently describe enough elements of the

suspect’s facial features.      Copies of the crime information

bulletin were subsequently printed and distributed.

          On September 21, 1989, Allyson Simmons (Simmons), an

examiner in the Hair and Fibers Unit in the Fedural Bureau of

Investigation laboratory located in Washington D.C., received a

parcel containing the dark-colored pubic hairs that Dr. De Alwis

had collected from Skinner’s body.         Then, on January 26, 1990,

Simmons received another parcel containing samples of Skinner’s

pubic hairs.   Simmons testified that following a microscopic

examination of the darker-colored hairs, she determined that the

hairs were “brown Caucasian pubic hairs that were suitable for

comparison purposes.”     Further, Simmons attested that a

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microscopic comparison of the “brown Caucasian pubic hairs” with

samples of Skinner’s pubic hairs revealed that the “brown

Caucasian pubic hairs” were “dissimilar” to Skinner’s pubic

hairs.

          In October 1991, Wanous passed away.

          Additional testing conducted in 2005 on the fluid

samples collected from Skinner’s body revealed that the samples

contained a mixed DNA profile with two contributors:            Skinner and

an unknown male.    The unknown DNA profile was uploaded to the

Hawai#i State DNA database on February 10, 2006.          On June 2,

2011, the database reported a match between the unknown DNA

profile and Austin’s DNA profile.        On January 18, 2012, the

police collected DNA evidence from Austin via buccal swabs

pursuant to a search warrant.       Testing of the swabs conducted the

next day confirmed that the unknown DNA profile in the fluid

samples from Skinner’s body matched Austin’s DNA profile.

          On January 20, 2012, police detectives took Austin’s

recorded statement.     Therein, he stated:      (1) he was familiar

with the 1541 Kalâkaua Avenue address because his grandmother

used to live there and he had visited her two to three times a

month over six to seven years; (2) he remembered that his

grandmother lived on the sixteenth floor; (3) upon being shown

Skinner’s photograph, he did not recognize her; (4) he did not

recognize the name “Edith Skinner”; (5) he had never been inside

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Skinner’s apartment; (6) he never had sexual relations with

Skinner or with anyone else inside the Makua Ali#i building; and

(7) he did not injure Skinner, cause her death, or take any items

from her residence.       He also stated that he did not recall where

he was on July 25, 1989.

A.    Circuit Court Proceedings

            On January 25, 2012, Austin was indicted by a grand

jury for murder in the second degree.

            On July 23, 2013, Austin filed a motion to dismiss for

pre-indictment delay.       He argued that the twenty-two year delay

between the date of the alleged offense and the date of the

indictment prejudiced him due to the loss of an exculpatory

witness, Wanous, who was no longer available to testify because

she was deceased.      He asserted that “Wanous’s testimony would

have provided actual exculpatory evidence for Defendant” because

she would have testified that she “observed a black male exit

[Skinner’s] apartment at about 0500 hours on July 25, 1989,

carrying two pillow cases” and that “Wanous was able to describe

the black male’s physical features with great specificity:               19-25

years old, 5’8”, slim build, short kinky dark colored hair, dark

eyes, dark complexion; no glasses and not [sic] facial hair.”

            The State countered that Wanous’s statement was not a

strong source of exculpatory evidence.           The State pointed out

that Wanous observed the suspect at 5:00 a.m. when “the sun had

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not yet risen and it was dark” and that at the time, she was

smoking a cigarette and “was not focused on Unit 706 and only

caught a fleeting look at the man.”         The State also observed that

Wanous “provided nothing more than a generalized suspect

description” and that “[w]hen she spoke with Detective Ikehara .

. . she handed him a sketch of two figures on a paper bag.              These

sketches, she claimed, were prompted by a ‘feeling’ she had to

draw.”   The State emphasized that the sketches were fairly

unsophisticated and devoid of facial features.           At a hearing on

the motion held on August 6, 2013, a transcript of Wanous’s

recorded statement and copies of her sketches were entered into

evidence.

             On December 4, 2013, the circuit court3 issued its

findings of fact, conclusions of law, and order denying Austin’s

motion to dismiss for pre-indictment delay.           The circuit court

found, inter alia:     (1) during Wanous’s recorded statement, she

“said that she was unsure whether she would be able to recognize

the man if she saw him again”; (2) the sketch artist with whom

Wanous met “advised Detective Ikehara that the drawing [that

resulted from their discussion] may not reflect an accurate

description because Ms. Wanous could not describe enough of the

suspect’s facial features” such that “Detective Ikehara did not



3
     The Honorable Colette Y. Garibaldi presided.

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include the drawing in the HPD crime information bulletin”; (3)

Wanous gave Detective Ikehara two hand-drawn sketches, the first

of which had no eyes, nose, or mouth and the second of which

“provided slightly more detail but there was nothing to suggest

that the figure was a black male”; (4) Wanous told Detective

Ikehara that “a ‘feeling’ prompted her to sketch the figures”;

and (5) Wanous could not identify the suspect in several

photographic line-ups which were generated based on her general

descriptions.     Based on these findings, the circuit court ruled

that Wanous’s death “does not prejudice Defendant” because:
                Ms. Wanous’ account that she saw a black male
          leaving Ms. Skinner’s apartment the morning of July
          25, 1989, is of speculative value. Ms. Wanous’
          account does not preclude the possibility that
          Defendant entered Ms. Skinner’s apartment and killed
          her. Consequently, Ms. Wanous’ account is too
          speculative to demonstrate that its loss impairs
          Defendant’s ability to present an effective defense.

          On December 13, 2013, the State filed a motion in

limine to exclude Wanous’s statements as hearsay.           Specifically,

the State sought to exclude:       (1) Wanous’s recorded statement

taken by Detective Ikehara; (2) the sketches that she drew; (3)

the composite drawing prepared by the police graphic artist; (4)

the oral statements she made to Evenson; and (5) any statement

she made to Clason and Ah Loy.       Austin countered that Wanous’s

statements were admissible under Hawai#i Rules of Evidence (HRE)

Rules 804(b)(5) and 804(b)(8), and under Chambers v. Mississippi,

410 U.S. 284 (1973).     At the hearing on the motion, held on

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December 19, 2013, Austin asked the circuit court to “take

judicial notice of the records and files in this case” and

asserted that under Chambers, Austin had the constitutional right

“to a fair opportunity to defend the accusation against him” and

that “the statement by Miss Wanous is essential to [Austin’s]

defense . . . that another person could have committed or had

committed this offense.”

            Also on December 13, 2013, Austin filed a motion in

limine seeking to preclude the State and its witnesses from

referring to Skinner as “the victim” at trial.          At the hearing

held on December 19, 2013, Austin argued that “to label the

decedent as a victim . . . is more prejudicial than probative.”

            The circuit court ruled on both parties’ motions on

January 17, 2014.    The circuit court granted the State’s motion

to exclude Wanous’s statements, concluding that the statements

did not fit within either HRE Rule 804(b)(5) or HRE Rule

804(b)(8), and that the statements were not admissible under

Chambers.    The circuit court denied Austin’s motion to prevent

the State and its witnesses from referring to Skinner as “the

victim,” relying on State v. Mateo, No. 30371, 2011 WL 5031546

(App. Oct. 21, 2011) (SDO).

            Austin was fifty-four years old at trial in 2014; he

would have been twenty-nine years old in 1989.          Austin testified


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that in 1989, he had met an older woman at the Makua Ali#i

building, whose name he could not remember, on two occasions.

The first time he met this older woman, he spoke with her in the

elevator.    The second time, he encountered the woman in the lobby

where the two engaged in conversation.         He testified that after

they chatted in the lobby, the older woman invited him to her

apartment, where the two continued to talk, and eventually, had

consensual sex.    He testified that he was in the older woman’s

apartment for at most an hour, and that after engaging in sexual

intercourse with her, he left and went to his grandmother’s

apartment.

            Austin also testified that he did not tell the police

about his sexual encounter with the woman in his 2012 interview

because he did not recognize the woman in the picture that the

police had shown him.     Austin attested that he “didn’t make the

connection between that woman [he had consensual sex with] and

the woman that was found murdered.”

            Following the presentation of evidence, the circuit

court instructed the jury on the elements of murder in the second

degree, having previously rejected Austin’s request for

instruction on the lesser included offenses of reckless

manslaughter and assault.      Both sides then presented their

closing arguments.


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          During the State’s closing argument, the prosecutor

argued as one of his six points of summation that “[t]he

defendant is not worthy of your belief.”         While making his

argument, the prosecutor made the following comments:

          (1) He argued that Austin “flat out lied to [the

police] with denials of things that couldn’t possibly be true” in

his recorded interview.     After playing a clip of the interview

recording, the prosecutor argued:        “Come on.    The detectives

asked him point blank [if he remembered meeting Skinner, speaking

with her, or being in her presence] and he denied it.              These

denials are clear evidence that he lied to the police then.                Why

would he lie about something so obvious to the police?”

          (2) After playing a clip of the interview recording

where Austin denied recognizing Skinner’s picture or name, the

prosecutor commented:     “That’s obviously a lie.        Perhaps he

didn’t know her name.     But if he didn’t know her name . . . how

is it that he engages in a consensual sexual encounter with a

woman whose name is suddenly unknown to him?          He’s lying to the

police repeatedly.”

          (3) He argued:
                He lied to the police two years ago, but he’s
          persisted in these lies when he spoke to you
          yesterday. How do you know that?
                You know, this trial is taking place in the City
          and County of Honolulu on the Island of Oahu. But
          surely the defendant must be a permanent resident of
          Fantasy Island because the story he told you yesterday


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            –- half truths, fabrication, lies, convenient selected
            memory, and flat-out amnesia. Think about what he
            told you yesterday.
                   He said that he recalled having two
            conversations with an unknown woman in the lobby of
            the Makua Alii building. Conveniently he never
            mentioned those conversations to the police. You can
            listen to his statement.
                   Why is it that now he has this explanation?
            Because the defendant has to come up with an
            explanation for you as to why his semen is inside the
            victim. He’s already lied to the police. He’s gotta
            come up with an explanation as to why his semen is
            there.

            In summarizing the State’s case, the prosecutor stated:

“Let’s put this together.       He had the opportunity; he has no

alibi; he is left handed;[4] the DNA evidence is conclusive; he

lied to the police; and he lied to you.”          The prosecutor also

presented the jury with a narrative summarizing and describing

how the murder occurred.       In short, he argued that Skinner forgot

to lock her front door, that Austin went to her unit after

entering the building, and that Austin then strangled and had sex

with her.

            Additionally, during their respective closing

arguments, the parties differed in their views of Skinner’s

personality.    The prosecutor contended that “[d]uring the last


4
      During the State’s closing argument, the prosecutor argued that
Skinner’s murderer was left-handed based on Dr. De Alwis’ testimony that
during the autopsy, she saw multiple contusions on the right side of the neck,
diffuse hemorrhaging in the tissues on the right side of the neck, and broken
bones on the left side of the throat. The prosecutor argued that such
observations supported that Skinner’s assailant was facing Skinner at the time
he killed her, and had used his left hand to squeeze Skinner’s throat as he
strangled her. Thus, because Austin had testified that he was left-handed,
the prosecutor argued that the evidence further supported that Austin was the
culprit.

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year of her life, Edith Skinner, then 81, lived a life of quiet

solitude.”   Defense counsel challenged the State’s representation

of Skinner, arguing:     “The State chose to depict Edith Skinner as

a frail, reserved, forgetful woman.        That’s how they want you to

see her.   Why?   Because it’s consistent with how they’re

thinking. . . . It’s consistent with the idea that, hey, how can

you have [Austin’s] DNA on her unless it’s by force?”            Defense

counsel argued that Skinner actually “had a very active social

life,” emphasizing that “she went swimming every week at the

Elk’s Club in Waikiki.”     In rebuttal, the prosecutor questioned

defense counsel’s assertion that Skinner had an active social

life, remarking that no witness had testified that Skinner swam

at the Elk’s Club weekly.

           Defense counsel did not object during the State’s

closing or rebuttal argument.       But, at the end of the

proceedings, after the jury had been excused, defense counsel

objected to “the State’s repeated characterization that Mr.

Austin had lied.”

           On February 5, 2014, the jury found Austin guilty as

charged and found that Austin knew or reasonably should have

known that Skinner was sixty years of age or older when he caused

her death.   On February 18, 2014, Austin filed a motion for a new

trial, asserting that the prosecutor engaged in misconduct in


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closing argument when he:        (1) argued that Austin lied in his

statements to the police and in his testimony before the jury

because such statements expressed “his personal opinion regarding

Defendant’s credibility”; and (2) told a “story” of how the

murder was committed because such argument “was not based on the

evidence presented.”

            Following a hearing on the motion, the circuit court

issued its written findings of fact, conclusions of law, and

order denying Austin’s motion for a new trial on May 8, 2014.

The circuit court ruled that it was not improper for the

prosecutor to argue that Austin’s testimony was unworthy of

belief and that he had lied to the police and jury.             The circuit

court also determined that the State’s narrative was supported by

the evidence adduced at trial and reasonable inferences drawn

therefrom.

            On June 18, 2014,      Austin was sentenced to an extended

sentence of life imprisonment without the possibility of parole

pursuant to HRS §§ 706-661 and 706-662(5).           He appealed his

conviction and sentence to the Intermediate Court of Appeals

(ICA).    The case was then transferred to this court.

                         II.   STANDARDS OF REVIEW

A.    Statutory Interpretation

              “We review the circuit court’s interpretation of a


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statute de novo.”      State v. Akau, 118 Hawai#i 44, 51, 185 P.3d

229, 236 (2008).

B.    Admissibility of Evidence

            “[W]here the admissibility of evidence is determined by

application of the hearsay rule, there can be only one correct

result, and ‘the appropriate standard for appellate review is the

right/wrong standard.’”       State v. Moore, 82 Hawai#i 202, 217, 921

P.2d 122, 137 (1996) (quoting Kealoha v. Cty. of Hawaii, 74 Haw.

308, 319, 844 P.2d 670, 675 (1993), reconsideration denied, 74

Haw. 650, 847 P.2d 263 (1993)).

C.    Jury Instructions

            “When jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when read and

considered as a whole, the instructions given are prejudicially

insufficient, erroneous, inconsistent, or misleading.”              State v.

Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (quoting

State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853 (1996)).

D.    Prosecutorial Misconduct

            “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.’”


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Sawyer, 88 Hawai#i at 329 n.6, 966 P.2d at 641 n.6 (quoting State

v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220 (1996)).

“If defense counsel does not object at trial to prosecutorial

misconduct, this court may nevertheless recognize such misconduct

if plainly erroneous.”       State v. Wakisaka, 102 Hawai#i 504, 513,

78 P.3d 317, 326 (2003).        “We may recognize plain error when the

error committed affects substantial rights of the defendant.”

Id. (quoting State v. Cordeiro, 99 Hawai#i 390, 405, 56 P.3d 692,

707 (2002)).

E.    Motion for a New Trial

            “[T]he granting or denial of a motion for new trial is

within the sound discretion of the trial court and will not be

disturbed absent a clear abuse of discretion.”            State v. Hicks,

113 Hawai#i 60, 69, 148 P.3d 493, 502 (2006) (alteration in

original) (quoting State v. Yamada, 108 Hawai#i 474, 478, 122

P.3d 254, 258 (2005)).       “It is well-established that an abuse of

discretion occurs if the trial court has ‘clearly exceed[ed] the

bounds of reason or disregards rules or principles of law or

practice to the substantial detriment of a party litigant.’”                  Id.

(alteration in original) (quoting Yamada, 108 Hawai#i at 478, 122

P.3d at 258).

                              III.   DISCUSSION

            Austin asserts the following points of error on appeal:


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(1) “Under State v. Mundon, The Trial Court Abused its Discretion

in Allowing the State and its Witnesses to Refer to Skinner as

the ‘Victim’ or ‘Murder Victim’ at Trial,” (2) “The Trial Court

Erred in Excluding Wanous’ Statements on Hearsay Grounds and

Thereby Denied Austin His Right to a Fair Trial in Accord with

Due Process,” (3) “The Trial Court Erred by Refusing to Instruct

the Jury on Included Offenses,” (4) “Because Repeated Misconduct

by the DPA During Closing Argument Deprived Austin of a Fair

Trial, the Trial Court Erred in Denying his Motion for a New

Trial,” and (5) “The Trial Court Plainly Erred in Sentencing

Austin to an Extended Term in Violation of the Ex Post Facto

Clause of the Federal Constitution and HRS § 1-3.”             We consider

each point of error in turn below.

A.    The circuit court did not abuse its discretion in allowing
      the State and its witnesses to refer to Skinner as the
      “victim” at trial.

            According to Austin, the circuit court erred in

allowing the State and its witnesses to refer to Skinner as the

“victim” or “murder victim” at trial.          Austin asserts that the

circuit court erred by relying on State v. Nomura, 79 Hawai#i

413, 903 P.2d 718 (App. 1995), cert. denied, 80 Hawai#i 187, 907

P.2d 773 (1995), and State v. Mateo, No. 30371, 2011 WL 5031546

(App. Oct. 21, 2011) (SDO), rather than on State v. Mundon, 129

Hawai#i 1, 292 P.3d 205 (2012), which is controlling.             Austin


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argues that pursuant to Mundon, the State should not have been

permitted to refer to Skinner as the “victim” because the circuit

court did not find that there was a good reason to justify the

use of the term by the State and its witnesses in this case.

              In Nomura, the defendant was charged with physically

abusing his wife, the complaining witness.            79 Hawai#i at 415,

903 P.2d at 720.       The complaining witness and the defendant got

into an argument while grocery shopping, which later escalated

into a physical fight after they returned to the complaining

witness’s apartment.        Id.   The complaining witness testified that

during the fight, the defendant grabbed, hit, slapped, and choked

her.    Id.    The defendant testified that the complaining witness

had initiated the fight in response to the defendant telling her

that he wanted a divorce.         Id.   The defendant denied grabbing,

hitting, slapping, or choking the complaining witness as she had

testified.      Id.   The jury was instructed as follows on the

elements of the offense of abuse of a family or household member:
              There are three (3) material elements to this charge,
              which the prosecution must prove beyond a reasonable
              doubt. The elements are:
                    1) The defendant physically abused the victim.
                    2) The victim is either a family or household
                    member; and
                    3) The defendant physically abused the victim
                    intentionally, knowingly, or recklessly.

Id.

              On appeal, the defendant argued that by referring to

the complaining witness as the “victim” in the foregoing jury

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instruction, the trial court improperly commented on the evidence

in violation of HRE Rule 1102 and thereby prejudiced the

defendant.   Id. at 416, 903 P.2d at 721.        The ICA held:
                Hence, the term “victim” is conclusive in nature
          and connotes a predetermination that the person
          referred to had in fact been wronged. Because the
          question of whether Witness had been abused was a
          question yet to be decided by the jury, it was
          improper to refer to her as “the victim.”
          Furthermore, Defendant denied any contact with Witness
          which might have caused her injury, making the
          existence of “injury” another question to be decided
          by the jury. Obviously, the trial court could have
          used the term “complaining witness” or referred to
          Witness by her name to avoid any appearance of
          partiality. . . .

                . . . .

                Accordingly, we hold that the reference to a
          complaining witness as “the victim” in criminal jury
          instructions is inaccurate and misleading where the
          jury must yet determine from the evidence whether the
          complaining witness was the object of the offense and
          whether the complaining witness was acted upon in the
          manner required under the statute to prove the offense
          charged. Here, the question of whether Witness was
          the object of the crime and whether she suffered
          physical “abuse” were elements required to be proven
          under the statute and, hence, matters for the jury to
          evaluate and not for the court to comment upon. Thus,
          we disapprove of the reference to the complaining
          witness as a “victim” in Instruction No. 01.

Id. at 416-17, 903 P.2d at 721-22 (emphasis added).           However, the

ICA ultimately concluded that “[v]iewing the instructions in

their entirety, we do not believe the court’s reference to

Witness as ‘the victim’ was prejudicial.”         Id. at 417, 903 P.2d

at 722.

          In Mundon, the defendant was found guilty of attempted

sexual assault, kidnapping, and assault.         129 Hawai#i at 9, 292


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P.3d at 213.    The complaining witness testified that the

defendant molested her several times while she was sleeping in

his car, and that when she had attempted to leave the vehicle,

the defendant threatened to cut her with a knife.           Id. at 6-7,

292 P.3d at 210-11.     The complaining witness attested that she

managed to escape when the defendant permitted her to leave the

vehicle to relieve herself.      Id. at 8, 292 P.3d at 212.        The

defendant did not testify at trial.        Id. at 9, 292 P.3d at 213.

          On appeal, this court held that the circuit court erred

in allowing the prosecutor to refer to the complaining witness as

the “victim” at trial.     Id. at 26, 292 P.3d at 230.        The Mundon

court first noted that, in contrast with Nomura, the term

“victim” did not appear in the jury instructions and was not used

by the court.    Id.   However, this court reasoned:
          Nomura also found the jury instruction problematic
          because the trial court must instruct the jury on the
          law but may not comment upon the evidence. Nomura
          explained that such a rule derives from the principle
          that the trial judge must endeavor at all times to
          maintain an attitude of fairness and impartiality.
          The use of the term was also wrong in light of this
          principle, because the trial court could have used the
          term “complaining witness” or referred to her by name
          to avoid the appearance of partiality. The
          presumption of innocence and the maintenance of
          fairness and impartiality during the trial are
          precepts underlying Nomura. Hence, the court erred in
          allowing Respondent and the witnesses to refer to
          Complainant as “the victim.”
                . . . It would seem, in light of Nomura, that
          unless there are good reasons found by the court for
          permitting otherwise, the court should instruct all
          counsel that they and their witnesses must refrain
          from using the term.
                Notwithstanding the court’s error, the use of
          the term “victim” in the limited circumstances of this


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          case was not prejudicial to Petitioner and, hence,
          does not itself warrant reversal of his convictions.
          However, it “is incompatible with the presumption of
          innocence for the prosecution to refer to the
          complaining witness as the ‘victim,’ just as it is to
          refer to the defendant as a ‘criminal.’” Thus, on
          remand, this admonition should be heeded.

Id. (emphases added) (citations omitted).

          Nomura and Mundon are distinguishable from the present

case and do not apply here.      In both Nomura and Mundon, both

complaining witnesses testified at trial and claimed that they

were victims of the defendants’ crimes.         Therefore, in those

cases, references to the complaining witnesses as “victims”

connoted a predetermination that the witnesses had been wronged

and that the crimes occurred as the witnesses had testified, and

consequently, unfairly implied the defendants’ guilt.             By

contrast, here, Skinner did not testify at trial or accuse Austin

of any crime.   Additionally, Austin did not dispute that Skinner

was murdered; his defense at trial was that he was not the

individual who had caused her death.        Because there was no

dispute as to whether Skinner had been the object of a crime, and

the key issue at trial was the identity of the perpetrator, the

State’s use of the term “victim” did not connote Austin’s guilt.

Thus, the circuit court did not err in permitting the State or

its witnesses from referring to Skinner as “the victim” at




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trial.5

B.    The circuit court did not err in excluding Wanous’s
      statements as hearsay.

            1.    HRE Rule 804(b)(5)

                  a.    Ah Loy’s, Evenson’s, and Clason’s Statements
                        Recounting Wanous’s Statements

            Austin advances two arguments in support of his

position that Wanous’s statements, as introduced through Ah Loy,

Evenson, and Clason, were admissible.          First, Austin contends

that the circuit court erred in excluding Ah Loy’s written

statement to the police.        For the first time on appeal, Austin

appears to argue that the circuit court should have analyzed the

statement as consisting of several layers of hearsay within

hearsay:    (1) Wanous’s statement to Clason; (2) Clason’s

statement to Ah Loy; and (3) Ah Loy’s written statement to

Detective Ikehara.      Austin contends that each layer of hearsay

falls within HRE Rule 804(b)(5), such that Ah Loy’s written

statement, with Wanous’s statement therein, was admissible.

            Second, Austin argues that Wanous’s statements to

Evenson and Clason (who relayed Wanous’s statement to Ah Loy)

fell within HRE Rule 804(b)(5).         Accordingly, Austin asserts that


5
      Although we hold that, on the facts in this case, the circuit court did
not err in permitting the State to refer to Skinner as the “victim” because
the parties did not dispute that she had been murdered, our holding does not
preclude courts faced with similar circumstances in the future from providing
for the use of a term such as “deceased” in lieu of the word “victim.”

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had Evenson or Clason been permitted to testify directly as to

what Wanous had told them, Wanous’s statements could have been

properly admitted into evidence.

          Assuming arguendo that Clason and Evenson were

available to testify directly to Wanous’s statements, we conclude

that Wanous’s statements were not admissible as statements of

recent perception under HRE Rule 804(b)(5).

          HRE Rule 804(b)(5) (1985) provides:
          (b) Hearsay exceptions. The following are not
          excluded by the hearsay rule if the declarant is
          unavailable as a witness:

                  . . . .

                  (5) Statement of recent perception. A
                  statement, not in response to the instigation of
                  a person engaged in investigating, litigating,
                  or settling a claim, which narrates, describes,
                  or explains an event or condition recently
                  perceived by the declarant, made in good faith,
                  not in contemplation of pending or anticipated
                  litigation in which the declarant was
                  interested, and while the declarant’s
                  recollection was clear[.]

HRE Rule 804(b)(5) is a codification of our decision in Hew v.

Aruda, 51 Haw. 451, 462 P.2d 476 (1969).          HRE Rule 804(b)(5) cmt.

(1985) (stating that HRE Rule 804(b)(5) “restates the holding of

Hew v. Aruda”).     Our analysis of whether Wanous’s statements were

admissible under HRE Rule 804(b)(5) begins with an examination of

our holding in Hew.

          At issue in Hew was the existence of a contract.             51

Haw. at 453, 462 P.2d at 478.        The plaintiff alleged that the


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defendant, a partnership, entered into an oral agreement to rent

his interest in a piece of land and sought payment of a balance

owed.   Id.   The plaintiff presented several pieces of documentary

evidence supporting the rental agreement’s existence.               Id.

           The defendant could not rebut the plaintiff’s evidence

because the partner who allegedly entered into the contract on

behalf of the partnership had died.        Id.   The defendant attempted

to admit the deceased partner’s out-of-court statement that the

partnership had no outstanding bills relevant to the disputed

rental agreement.    Id. at 454, 462 P.2d at 478-79.         The trial

court excluded the statement as hearsay.         Id. at 454, 462 P.2d at

479.

           Analyzing whether the trial court erred in excluding

the statement of the deceased partner, this court stated:
                 The shortcomings of the [general hearsay] rule
           barring statements of decedents are obvious. Relevant
           and competent evidence, otherwise admissible, is
           excluded even when it is the only available evidence.
           This forces the finder of fact to decide a case with a
           minimum of information concerning the facts in issue.
           We think this is an unsound approach to the pursuit of
           truth in an adversary context.
                 Since the decedent is obviously unavailable,
           there is great need for this particular testimony to
           be introduced into evidence. No alternative means of
           introducing the evidence exists. While the great vice
           of hearsay statements is the potential lack of
           trustworthiness, this single liability is not enough
           to justify the exclusion of a decedent's statement
           when accuracy can be shown in other ways. By focusing
           the inquiry on the circumstances surrounding the
           declarant’s position when he made the statement, a
           determination of trustworthiness can be made by the
           trial judge. Certain safeguards must be met in order
           to guarantee that trustworthiness, however. We hold
           that a statements [sic] is not excluded by the hearsay


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          rule if the declarant is unavailable as a witness and
          the court finds that the statement was made in good
          faith, upon the personal knowledge of the declarant,
          and while his recollection was clear, unless other
          circumstances were present indicating a clear lack of
          trustworthiness. This very reasonable limitation of
          trustworthiness is necessary since the party against
          whom the statement is offered has no opportunity to
          test the hearsay by cross-examination.

Id. at 456-57, 462 P.2d at 480 (emphases added).           In a footnote,

the Hew court commented that “[a] clear lack of trustworthiness

might be shown by a statement made ‘in response to the

instigation of a person engaged in investigating, litigating, or

settling a claim, or ‘in contemplation of pending or anticipated

litigation in which he (the declarant) was interested.’”            Id. at

457 n.1, 462 P.2d at 480 n.1 (quoting the Preliminary Draft of

the Proposed Rules of Evidence for the United States District

Courts and Magistrates, Rule 804(b)(2) and Advisory Committee’s

Note at 210-11 (March 1969)).

          Pursuant to the foregoing, inasmuch as HRE Rule

804(b)(5) is a codification of this court’s holding in Hew, it

appears that HRE Rule 804(b)(5) permits the admissibility of a

hearsay statement by an unavailable witness in limited instances

where the circumstances surrounding the statement, such as those

contemplated by the Hew court, sufficiently guaranteed its

trustworthiness.    Id. at 457, 462 P.2d at 480; HRE Rule 804(b)(5)

cmt. (1985).   However, the Hew court unambiguously stated that

even if its contemplated safeguards for trustworthiness were


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present, such hearsay statements ought to be excluded if “other

circumstances were present indicating a clear lack of

trustworthiness.”    Id.; see also State v. Haili, 103 Hawai#i 89,

100, 79 P.3d 1263, 1274 (2003) (“[T]his court will review the

circuit court’s determination of trustworthiness under HRE Rules

804(b)(5) and 804(b)(8) for an abuse of discretion.”).

          Applying the aforementioned principles from Hew to the

present case, we believe that Wanous’s statements were not

admissible under HRE Rule 804(b)(5).        Indeed, Wanous’s statements

were accompanied by several of the circumstantial guarantees of

trustworthiness contemplated in Hew, and codified in HRE Rule

804(b)(5).   Wanous spontaneously told Ah Loy, Clason, and Evenson

that she had seen a black male leaving Skinner’s apartment on the

day that Skinner’s body was discovered.         As such, Wanous’s

statements to her sisters and niece were not made “at the

instigation of a person investigating . . . a claim.”            Wanous

“explain[ed] an event . . . recently perceived,” and it does not

appear that Wanous made the statements in bad faith.            The record

also does not indicate that Wanous made the statement “in

contemplation of pending or anticipated litigation in which [she]

was interested.”    Lastly, Wanous made the statements “while [her]

recollection was clear,” insofar as she spoke with Ah Loy, Clason

and Evenson a few hours after observing the black male leave


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Skinner’s apartment.

          However, Wanous’s statements were also surrounded by

circumstances abundantly indicating their lack of

trustworthiness.    In particular, the record supports that:           (1)

Wanous only saw the suspect for “maybe three to five seconds”;

(2) Wanous observed the suspect at around 5:00 a.m. while it was

still dark outside--there was no sunlight, and the only lights on

at the time were the corridor lights; (3) Wanous was not in an

optimal position to get a clear glance at the suspect insofar as

she was initially “leaning over” and occupied with smoking a

cigarette before she made her observation; (4) Wanous stated that

although she “seen the arms was black,” she “couldn’t make out”

the suspect’s face “because it was just one color all the way”;

(5) Wanous’s only glimpse of the suspect’s facial features was

“real fast” from a side-view as the suspect turned around; (6)

Wanous said that when the suspect briefly turned towards her, she

could see “the whites of his eyes” but “couldn’t see anything

else”; (7) Wanous stated that the suspect “looked a male” based

upon her observation that the suspect “didn’t have bosom,” rather

than upon her observation of the suspect’s face; (8) upon being

asked if she could identify the suspect’s race, Wanous initially

stated that the suspect was “black,” but later related that an

unknown individual had “corrected” her to say “negro”; (9) when


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asked to describe the suspect’s complexion, Wanous rejected the

idea that the suspect was “black, black,” and instead described

that he was “dark”; (10) Wanous commented on “how far away” the

suspect was from her when she saw him; (11) Wanous decided to

sketch the suspect based upon a “feeling” which “guided” her

hand; (12) Wanous could not say that the suspect looked like the

person depicted in the composite sketch that she had helped to

create; (13) Detective Ikehara did not attach the composite

sketch to the crime information bulletin because Wanous was not

able to adequately describe enough of the suspect’s facial

features, such that Aragon believed that the drawing did not

reflect an accurate description of the suspect; and (14) Wanous

could not confirm that she would be able to identify the suspect

if she saw him again.

            Accordingly, excluding Wanous’s statements to her

sisters and niece, which are surrounded by ample facts that

strongly indicate their lack of trustworthiness, was consistent

with our holding in Hew--the case which HRE Rule 804(b)(5)

codifies.   Therefore, we hold that based on the facts of this

case, the circuit court did not abuse its discretion in ruling

that Wanous’s statements to Ah Loy, Evenson, and Clason were not

admissible under HRE Rule 804(b)(5).




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                b.    Wanous’s Statements to Detective Ikehara

          Austin also asserts that the circuit court erred in

ruling that Wanous’s statements to the police were not admissible

under HRE Rule 804(b)(5).      He asserts that “[b]ecause a criminal

prosecution is not a ‘claim,’ a police officer investigating a

crime is not ‘engaged in investigating, litigating, or settling a

claim’” within the meaning of the Rule.

          Although Austin’s argument raises an interesting

question as to whether statements procured by police officers

during official criminal investigations are statements that are

made “in response to the instigation of a person engaged in

investigating . . . a claim” within the meaning of HRE Rule

804(b)(5), we need not resolve this issue to address Austin’s

arguments on this point.      Pursuant to our analysis in section

III.B.1.a, supra, we hold that the circuit court did not abuse

its discretion in ruling that Wanous’s statements to Detective

Ikehara were not admissible under HRE Rule 804(b)(5), because her

statements were accompanied by a multitude of circumstances that

indicate their lack of trustworthiness.

          2.    HRE Rule 804(b)(8)

          Austin maintains that even if Wanous’s statements were

not admissible under HRE Rule 804(b)(5), they were admissible

under HRE Rule 804(b)(8).      He argues that the circuit court erred


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by failing to consider numerous facts that supported Wanous’s

trustworthiness, including:      (1) Wanous made several consistent

statements to “trusted confidantes” within a short period of

time; (2) several facts in Wanous’s statements were corroborated

by other evidence; (3) the evidence neither demonstrated that

Wanous lacked capacity nor illustrated that Wanous was an

untruthful person; and (4) Wanous was a disinterested party.

          Though currently codified as HRE Rule 804(b)(8), the

catch-all exception was initially codified as HRE Rule 804(b)(6)

at the time the offense occurred in this case.          The text of the

exception, however, remains unchanged and states, in part:
          (b) Hearsay exceptions. The following are not
          excluded by the hearsay rule if the declarant is
          unavailable as a witness:

                . . . .

                (8) Other exceptions. A statement not
                specifically covered by any of the foregoing
                exceptions but having equivalent circumstantial
                guarantees of trustworthiness, if the court
                determines that (A) the statement is more
                probative on the point for which it is offered
                than any other evidence which the proponent can
                procure through reasonable efforts, and (B) the
                general purposes of these rules and the
                interests of justice will best be served by
                admission of the statement into evidence.

HRE Rule 804(b)(8) (2016).

          Although hearsay rulings are generally reviewed under

the right/wrong standard, this court has held that a trial

court’s determination of whether a statement is trustworthy is

reviewed for an abuse of discretion.        Haili, 103 Hawai#i at 103,

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79 P.3d at 1277.    “The trial court abuses its discretion when it

clearly exceeds the bounds of reason or disregards rules or

principles of law or practice to the substantial detriment of a

party litigant.”    State v. Plichta, 116 Hawai#i 200, 214, 172

P.3d 512, 526 (2007) (quoting State v. Ganal, 81 Hawai#i 358,

373, 917 P.2d 370, 385 (1996)).

           In State v. Swier, the defendant was charged with

negligent homicide in the second degree as a result of his

involvement in a car accident.       66 Haw. 448, 666 P.2d 169 (1983).

The State sought to introduce a statement made by a witness to a

police officer two days after the accident.          Id. at 448-49, 666

P.2d at 169-70.    Though the witness apparently left Hawai#i after

the accident, he initially stated that he would return and

testify, but later refused to do so.        Id. at 449, 666 P.2d at

170.   Because the case was a misdemeanor case, the State was

unable to compel the witness to return to Hawai#i.           Id.    The

circuit court excluded the statement, and on appeal, the State

argued that the statement should have been admitted under the

catch-all exception, then codified as HRE Rule 804(b)(6).             Id. at

449-50, 666 P.2d at 170.      This court held:
                 The problem with the State’s contention is that
           the trial court was not satisfied that [the witness’s]
           statement had circumstantial guarantees of
           trustworthiness equivalent to those which have long
           been recognized in the case of the exceptions set
           forth in Rules 804(b)(1) through (5).
                 In ruling on the motion, the trial court


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          correctly pointed out that [the witness’s]
          demonstrated equivocation with respect to returning to
          Hawaii to testify cast some doubt on the
          trustworthiness of his statement. We cannot say that
          the trial court abused its discretion in rejecting the
          statement. We therefore affirm the trial court’s
          ruling excluding [the witness’s] statement without
          reaching the constitutional issue of the right to
          confrontation.

Id. at 450, 666 P.2d at 170.

          Similar to Swier, the circuit court here was not

satisfied that Wanous’s statements had sufficient circumstantial

guarantees of trustworthiness.       The circuit court reasoned:
          The language of 804(b)(8) indicates that, in order to
          qualify for this hearsay exception, as a threshold
          matter, the hearsay statement must be trustworthy.
          Here, there are no “circumstantial guarantees of
          trustworthiness” surrounding Anne Wanous’ statements.
          . . . All of the circumstances tied to Anne Wanous’
          statements indicate its lack of trustworthiness--
          specifically that she was unable to provide the sketch
          artist with a description that was worthy even of the
          crime bulletin, and that her own sketch was devoid of
          any detail and was the product of what Anne Wanous
          described as a “feeling” that compelled her to draw
          the sketch. Because Anne Wanous’ statements lack the
          circumstantial guarantees of trustworthiness that HRE
          Rule 804(b)(8) requires, the statements do not qualify
          for the 804(b)(8) exception to the hearsay rule.

          Though the circuit court’s analysis regarding the

trustworthiness of Wanous’s statements was brief, this may be

because the circuit court had previously considered, at length,

the trustworthiness of Wanous’s statements when it evaluated

Austin’s motion to dismiss for pre-indictment delay.            In ruling

on the State’s motion in limine, the circuit court, at Austin’s

request, took judicial notice of all of the documents in the case

record, which included its own ruling on Austin’s motion to


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dismiss for pre-indictment delay.        Therein, the circuit court

found the following facts, which have independent support in the

record and indicate that Wanous’s statements lacked

trustworthiness:    (1) Wanous was unable to confirm that she would

be able to identify the suspect if she saw him again; (2) Wanous

was prompted to draw the sketches of the suspect based on a

“feeling” which “guided” her hand; (3) the sketches had very

little detail--one sketch had no eyes, nose, or mouth, and the

other did not contain anything to suggest that the figure was a

black male; (4) Aragon advised Detective Ikehara that the

composite drawing might not have reflected an accurate

description of the suspect because Wanous could not describe

enough of the suspect’s facial features, such that Detective

Ikehara did not include the drawing in the HPD crime information

bulletin; and (5) Wanous could not identify the suspect in

several photographic line-ups that were generated based on her

general descriptions of the suspect.

          Furthermore, the circuit court’s ruling that Wanous’s

statements were not trustworthy is supported by the additional

facts concerning the circumstances in which Wanous observed the

suspect, as discussed in section III.A.1.a, supra.

          Despite Austin’s contention that there were some facts

supporting that Wanous’s statements were trustworthy, ample facts


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also indicated that her statements were not trustworthy.            We

therefore conclude that the circuit court did not clearly exceed

the bounds of reason or disregard rules or principles of law or

practice in ruling that Wanous’s statements lacked sufficient

circumstantial guarantees of trustworthiness to warrant their

admission under HRE Rule 804(b)(8).

          3.   Chambers v. Mississippi

          Austin argues that even if Wanous’s statements were not

admissible under HRE Rule 804, they were admissible under

Chambers v. Mississippi because “[t]here was a great need” for

the evidence, as Wanous’s statements were “the only independent

evidence that Austin could offer to corroborate his testimony

that someone else had caused Skinner’s death.”

          In Chambers, the defendant was charged with murdering a

police officer by shooting the officer during a fight involving a

large crowd at a bar.     410 U.S. at 285-87.      A man named Gable

McDonald (McDonald) subsequently confessed that he, not the

defendant, shot and killed the officer.         Id. at 287.     However,

McDonald later repudiated his sworn confession and testified at a

preliminary hearing that he had been persuaded by a third party

to confess to the murder.      Id. at 288.     He attested that the

third party had promised him a share of the proceeds from a

lawsuit that the defendant would bring against the town.            Id.


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McDonald’s repudiation was accepted and his involvement was not

investigated further.     Id. at 288.

          At trial, the defendant called McDonald as a witness.

Id. at 291.    McDonald testified that he did not shoot the officer

and that he had only confessed on the promise of receiving a

share of the sizable tort recovery from the town.           Id.    When the

defendant tried to introduce the testimony of three witnesses to

whom McDonald had admitted that he had shot the officer, the

State raised an objection based on hearsay, which the trial court

sustained.    Id. at 292.   On certiorari to the United States

Supreme Court, the defendant argued that his constitutional right

to due process was violated because, inter alia, he could not

introduce the testimony of the witnesses to whom McDonald had

confessed.    Id. at 294.   The Court held:
                The hearsay statements involved in this case
          were originally made and subsequently offered at trial
          under circumstances that provided considerable
          assurance of their reliability. First, each of
          McDonald’s confessions was made spontaneously to a
          close acquaintance shortly after the murder had
          occurred. Second, each one was corroborated by some
          other evidence in the case-–McDonald’s sworn
          confession, the testimony of an eyewitness to the
          shooting, the testimony that McDonald was seen with a
          gun immediately after the shooting, and proof of his
          prior ownership of a .22-caliber revolver and
          subsequent purchase of a new weapon. The sheer number
          of independent confessions provided additional
          corroboration for each. Third, whatever may be the
          parameters of the penal-interest rationale, each
          confession here was in a very real sense self-
          incriminatory and unquestionably against interest.
          . . . Finally, if there was any question about the
          truthfulness of the extrajudicial statements, McDonald
          was present in the courtroom and was under oath. He
          could have been cross-examined by the State, and his


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           demeanor and responses weighed by the jury. . . .
                 . . . The testimony rejected by the trial court
           here bore persuasive assurances of trustworthiness and
           thus was well within the basic rationale of the
           exception for declarations against interest. That
           testimony also was critical to Chambers’ defense. In
           these circumstances, where constitutional rights
           directly affecting the ascertainment of guilt are
           implicated, the hearsay rule may not be applied
           mechanistically to defeat the ends of justice.

Id. at 300-02 (emphases added) (footnote and citations omitted).

           In short, in Chambers, the United States Supreme Court

established a two-part test that applies to determine whether a

hearsay statement may be admissible pursuant to a defendant’s

constitutional right to due process.        See id. at 302.         Under the

Court’s analytical framework in Chambers, the defendant must

establish that:    (1) the statement is “critical to [his or her]

defense” and (2) that the statement “bore persuasive assurances

of trustworthiness.”     Id.   In this case, the parties do not

dispute that Wanous’s statements were critical to Austin’s

defense.   Rather, the key issue is whether Austin satisfied the

second part of the Chambers test by establishing that Wanous’s

statements “bore persuasive assurances of trustworthiness.”

           Austin notes that there are some similarities between

the facts in Chambers and the facts in the present case, which

arguably support the trustworthiness of Wanous’s statements.

Here, as in Chambers, Wanous spontaneously spoke to two family

members with whom she was closely acquainted later in the morning

after she observed the black male leave Skinner’s apartment.

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And, like in Chambers, Wanous’s observations were corroborated by

some independent evidence--her observation that the black male

was carrying stuffed pillow cases is consistent with several

witnesses’ testimony that the bed upon which Skinner’s body had

been found did not have any blankets, sheets, comforters, or

pillows.

           However, despite having some similarities with

Chambers, this case is distinguishable in that numerous facts

indicate that Wanous’s statements were substantially less

trustworthy compared to McDonald’s in Chambers.           Though Wanous’s

statements to Evenson and Clason may have been spontaneous, her

recorded statement to Detective Ikehara was not.           Significantly,

several key statements in Wanous’s recorded interview, in which

she described the suspect’s features, were not spontaneous to the

extent that Detective Ikehara appeared to lead or suggest her

responses.   For example, Detective Ikehara appeared to lead

Wanous into describing the suspect as a black or negro male:
           [Detective Ikehara:] Okay, can you describe this
           person. Was he a male or female? Was it a, was a
           male or female?
           [Wanous:] It looked a male because it didn’t have
           bosom, you know.
           [Detective Ikehara:] And what race would you say,
           this person, this male was?
           [Wanous:] I seen the arms was black, you know, both
           arms black, and the face, I couldn’t make out because
           it was just one color all the way . . .
           [Detective Ikehara:] Wait, wait, wait, as far as
           race, could you tell what race he was?
           [Wanous:] By the color of his skin and hair, I, I
           said it was black and then, and I was corrected like
           negro.

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          [Detective Ikehara:]   Okay, so you saw a black or
          negro male . . .
          [Wanous:] Uh-huh.

                . . . .

          [Detective Ikehara:] What about his complexion, was
          real black, real dark?
          [Wanous:] Not that black, black type.
          [Detective Ikehara:] So, but he was dark?
          [Wanous:] Dark, yes.

(Third ellipses added.)     Likewise, Detective Ikehara seemed to

lead Wanous into describing the suspect’s hair as dark, kinky,

and short:
          [Detective Ikehara:] Okay, and then, ah, what color
          was his hair?
          [Wanous:] It wasn’t, it wasn’t blonde or red or what
          . . .
          [Detective Ikehara:] So it’s dark hair?
          [Wanous:] Dark hair.
          [Detective Ikehara:] And what style was it, do you
          know?
          [Wanous:] Was close, close . . .
          [Detective Ikehara:] Close to the head?
          [Wanous:] Yeah, close.
          [Detective Ikehara:] Was it curly or straight or
          . . .
          [Wanous:] Well, it looked, ah, no, no, not straight,
          ah . . .
          [Detective Ikehara:] Kinky?
          [Wanous:] Kink . . .
          [Detective Ikehara:] Is that right?
          [Wanous:] To the hair, to the, to the scalp.
          [Detective Ikehara:] Kinky kind of hair?
          [Wanous:] Well, that’s all I could see when he
          turned.
          [Detective Ikehara:] Kinky, but is that right?
          [Wanous:] Not that springy type.
          [Detective Ikehara:] Uh-huh, curly?
          [Wanous:] (inaudible).
          [Detective Ikehara:] Kinky or curly or how would you
          describe it?
          [Wanous:] Curly would be a little wider, yeah?
          [Detective Ikehara:] Uh-huh.
          [Wanous:] Kinky would be small, yeah.
          [Detective Ikehara:] What?
          [Wanous:] Yeah, small.
          [Detective Ikehara:] Kinky? Okay, uhm, so it was
          short then the hair, yeah?
          [Wanous:] Yes, it wasn’t ah, ah, ah, wild type
          hairdo.

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            [Detective Ikehara:] How was the hair styled? All
            you can say it was close to the head?
            [Wanous:] Yeah, that’s all.
            [Detective Ikehara:] And how long was it, real short?
            [Wanous:] It wasn’t long.

Thus, unlike McDonald’s statements, which were completely made at

his own behest, 410 U.S. at 300, several of the crucial portions

of Wanous’s recorded statement appeared to be in response to

Detective Ikehara’s leading questions.         Her statements,

therefore, were less trustworthy compared to McDonald’s in

Chambers.

            Similarly, while Wanous’s statements were corroborated

by some other evidence, the amount of corroborating evidence and

the extent of validation were significantly less compared to

Chambers.    Here, at most, one or two facts from Wanous’s

statements, which were irrelevant to her description of the

suspect, were corroborated by the testimony of a few other

witnesses.    By contrast, in Chambers, McDonald’s statements were

corroborated not only by numerous witnesses’ statements, but also

substantial physical evidence.       410 U.S at 300.      And, unlike

McDonald’s statements, Wanous’s statements were not self-

incriminatory.     Cf. id. at 300-301.     These facts indicate that

Wanous’s statements were more untrustworthy than McDonald’s in

Chambers.

            Lastly, unlike McDonald, Wanous was unavailable to

testify at trial because she was deceased.          Cf. 410 U.S. at 301.

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The State had no means of addressing any questions concerning the

truthfulness of Wanous’s statements because she could not “have

been cross-examined by the State, and [her] demeanor and

responses weighed by the jury.”       Id.   Put differently, a

safeguard against unreliability which was present in Chambers is

absent here, thus rendering the cases distinguishable from one

another.   Christian v. Frank, 595 F.3d 1076, 1085 (9th Cir. 2010)

(“Moreover, Chambers can be further distinguished from the case

before us in that, here, . . . [the declarant] was declared to be

unavailable.   His unavailability contrasts sharply with the

availability of McDonald in Chambers, which the Supreme Court of

the United States stressed greatly enhanced the reliability of

the extrajudicial statements in that case.” (citation omitted)).

           The present case can be additionally distinguished from

Chambers inasmuch as Wanous’s statements not only lacked several

of the assurances of trustworthiness that bolstered McDonald’s

statements in Chambers, but her statements were also accompanied

by numerous indicia of untrustworthiness that were not present in

Chambers, as discussed in section III.B.1.a, supra.

           In order for Wanous’s statements to have been

admissible under Chambers, Austin was required to demonstrate

that Wanous’s testimony was “critical to [his] defense” and that

the statements “bore persuasive assurances of trustworthiness.”


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Chambers, 410 U.S. at 302.        Based on the foregoing, we hold that

the circuit court did not abuse its discretion in ruling that the

second requirement was not met, and determining that Wanous’s

statements were not admissible under Chambers.

            To conclude, the circuit court did not abuse its

discretion in ruling that Wanous’s statements were not admissible

under HRE Rule 804(b)(5), HRE Rule 804(b)(8), or Chambers.

C.    The circuit court did not err by refusing Austin’s
      proposed jury instructions for lesser included offenses.

            Austin asserts that the circuit court erred in failing

to instruct the jury on the lesser included offenses of

manslaughter and assault.        Austin contends that at trial,

“[t]here was evidence of the cause of Skinner’s death and that

Austin had engaged in intercourse with her, but there was no

evidence of forced entry or that Skinner’s apartment had been

ransacked or disturbed in any way.”          Thus, Austin argues that a

rational juror could have concluded that Austin did not

intentionally or knowingly cause Skinner’s death, and instead

could have found that he had acted recklessly in killing or

injuring Skinner.

            “[J]ury instructions on lesser-included offenses must

be given where there is a rational basis in the evidence for a

verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense.”             State v.

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Flores, 131 Hawai#i 43, 51, 314 P.3d 120, 128 (2013).           “The

failure to instruct the jury on a lesser included offense for

which the evidence provides a rational basis warrants vacation of

the defendant’s conviction.”       Id. at 58, 314 P.3d at 135.

           The parties in the present case do not dispute that

manslaughter and assault in the first, second, and third degrees

are lesser included offenses of the charged offense, murder in

the second degree.    The issue is whether there was a rational

basis in the evidence for the jury to acquit Austin of the

offense charged and instead convict him of any of the lesser

included offenses.    See Flores, 131 Hawai#i at 51, 314 P.3d at

121.

           Under HRS § 707-702(1)(a) (1985), “(1) A person commits

the offense of manslaughter if:       (a) He recklessly causes the

death of another person[.]”      A person commits assault in the

first degree if he or she “intentionally or knowingly causes

serious bodily injury to another person.”         HRS § 707-710 (1985).

A person commits assault in the second degree if he or she

“intentionally or knowingly causes substantial bodily injury to

another” or “recklessly causes serious bodily injury to another

person.”   HRS § 707-711 (Supp. 1988).       Assault in the third

degree requires that a person “[i]ntentionally, knowingly, or

recklessly cause[] bodily injury to another person” or


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“[n]egligently cause[] bodily injury to another person with a

dangerous instrument.”     HRS § 707-712 (1985).

          Under the State’s theory of the case, Skinner was

murdered based on the fact that the cause of death was asphyxia

due to manual strangulation--a conscious and deliberate act

reflecting the intent to cause the death of another person.             The

State introduced evidence supporting that Austin was Skinner’s

murderer, which included:      (1) Austin’s testimony that he had

access to the Makua Ali#i building because his grandmother lived

there at the time and he visited her regularly; (2) testimony

that Austin’s DNA was detected in the sample of the fluid found

in Skinner’s body at the time of her death; and (3) testimony

that Austin could not be excluded as a donor of a dark-colored

pubic hair that was found amongst Skinner’s light-colored pubic

hair.

          Austin’s defense was that while he may have had sexual

intercourse with Skinner before she was murdered, he was not the

individual who killed her.      At trial, Austin testified that he

and Skinner engaged in consensual sexual relations after he had

spoken with her on two occasions.        However, Austin unequivocally

attested that he was not the individual who strangled Skinner,

nor was he the person who caused her death.          In other words,

Austin acknowledged that Skinner had been strangled, but


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maintained that someone else was responsible.

          The evidence adduced at trial does not provide a

rational basis for a verdict acquitting Austin of murder in the

second degree and instead finding him guilty of either

manslaughter or any degree of assault.         Austin correctly notes

that the State’s evidence supported that:         (1) based upon Dr. De

Alwis’ autopsy report, the cause of Skinner’s death was manual

strangulation, and (2) there was no evidence of forced entry, a

struggle, or that Skinner’s apartment had been disturbed or

ransacked in any way.     Such facts, however, do not support that

Skinner’s assailant acted recklessly rather than intentionally or

knowingly when he or she strangled Skinner.          Accordingly, these

facts do not form a rational basis for acquitting Austin of

murder in the second degree, and instead finding him guilty of

reckless manslaughter or assault.

          Additionally, Austin did not proffer any evidence to

support that while he was engaging in sexual intercourse with

Skinner, he recklessly caused Skinner’s death or otherwise

inflicted any sort of bodily injury upon her.          In fact, Austin

offered little information about his sexual encounter with

Skinner, testifying only that it was consensual, that he believed

that it occurred in the late afternoon, that he and Skinner spoke

for about twenty-five to thirty minutes in her apartment before


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they had sex, that they had intercourse on her bed, that she was

wearing a dress, that he was in her apartment for at most an

hour, and that he immediately went to his grandmother’s apartment

afterwards.

            Accordingly, the record does not contain any evidence

to support that Skinner’s strangulation was the product of

reckless rather than intentional behavior.           It follows that,

based on the evidence presented at trial, the jury could have

rationally arrived at one of two conclusions:            (1) Austin was the

individual who deliberately strangled Skinner, and consequently

was guilty of murder in the second degree, or (2) Austin did not

strangle Skinner and did not cause her death, and should have

been acquitted.      There was no rational basis for acquitting

Austin of murder in the second degree and instead finding him

guilty of manslaughter or assault.          We therefore hold that the

circuit court did not err in refusing to instruct the jury on the

foregoing lesser included offenses.

D.    The circuit court did not err in denying Austin’s motion
      for a new trial on the basis of prosecutorial misconduct.

            “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. Clark, 83 Hawai#i 289, 304, 926 P.2d 194,

209 (1996) (quoting State v. McGriff, 76 Hawai#i 148, 158, 871

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P.2d 782, 792 (1994)).     When determining whether the alleged

prosecutorial misconduct rises to the level of reversible error,

this court considers three factors:        (1) the nature of the

alleged misconduct; (2) the promptness or lack of a curative

instruction; and (3) the strength or weakness of the evidence

against the defendant.     Id.

          Austin argues that the circuit court erred in denying

his motion for a new trial because the prosecutor engaged in

several acts of prosecutorial misconduct, which deprived Austin

of his right to a fair trial.       He alleges five arguments

regarding misconduct.     We address each in turn.

          1.    Shifting the Burden of Proof

          Austin argues that during the State’s closing argument,

the prosecutor made three arguments that improperly shifted the

burden of proof to him.     First, Austin argues that the prosecutor

“incorrectly and improperly suggested to the jury that Austin

bore the burden of disproving his identity as the perpetrator of

the charged offense” when he stated:
          The defendant does not have an alibi for the time of
          the murder. In an alibi case, the person asserting the
          alibi concedes that the underlying crime has occurred
          but challenges the identity of the perpetrator,
          claiming that at the time the offense was allegedly
          committed he was somewhere else. The defendant has no
          alibi.

          Second, Austin argues that the prosecutor implied that

“it was Austin’s burden to refute the State’s DNA evidence,” when


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he made the following comments:       (1) “The DNA evidence in this

case demonstrates beyond any reasonable doubt that the defendant

and no one else, is directly responsible for Edith’s death”; (2)

“What is the only reasonable inference that you can draw if a

medical examiner finds the defendant’s pubic hair mixed within

the murder victim’s?”; (3) “The defendant’s unique genetic

fingerprint was found inside of the murder victim”; and (4) “The

defendant’s unique genetic fingerprint was found inside of Edith

Skinner.”

            Finally, Austin argues that the prosecutor improperly

“suggested to the jury that Austin’s account should not be

believed because he failed to present independent evidence to

corroborate it.”    On this point, Austin points to the

prosecutor’s comment that “[t]he defendant’s version of events to

you is nothing more than the uncorroborated delusions of a

desperate man,” and that the jury must consider “the extent to

which his account is corroborated or uncorroborated or

contradicted by the other credible evidence.”

            Austin did not object to any of the foregoing comments

at trial.   When defense counsel fails to object to prosecutorial

misconduct at trial, we may still recognize such misconduct if it

affected the defendant’s substantial rights, such that the

circuit court’s failure to take corrective action constituted


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plain error.   Wakisaka, 102 Hawai#i at 513, 78 P.3d at 326.           The

analysis proceeds in two steps.       First, we determine whether the

prosecutor’s actions constituted misconduct.          Clark, 83 Hawai#i

at 304, 926 P.2d at 209.      If we conclude that the prosecutor’s

actions were improper, we analyze whether the action affected the

defendant’s substantial rights, such that the circuit court

plainly erred by not intervening and taking remedial action.                Id.

          In criminal trials, “the burden is always upon the

prosecution to establish every element of [a] crime by proof

beyond a reasonable doubt, never upon the accused to disprove the

existence of any necessary element.”        State v. Cuevas, 53 Haw.

110, 113, 488 P.2d 322, 324 (1971).        Accordingly, “efforts by the

prosecution to shift the burden of proof onto a defendant are

improper and implicate the due process clauses of the fourteenth

amendment to the United States Constitution and article I,

section 5 of the Hawai#i Constitution.”        State v. Hauge, 103

Hawai#i 38, 55-56, 79 P.3d 131, 148-49 (2003).

          We agree that the prosecutor’s comment concerning

Austin’s lack of an alibi constituted misconduct insofar as the

comment might infer that Austin bore the burden of proving that

he had an alibi on the date of Skinner’s death.           Likewise, the

prosecutor’s remark regarding whether Austin’s testimony was

corroborated by other evidence may also have qualified as


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misconduct to the extent that it might infer that Austin had a

burden to produce evidence tending to corroborate his testimony.

           However, the comments were harmless beyond a reasonable

doubt and did not affect Austin’s substantial rights.            Prior to

closing argument, the circuit court instructed the jury that

“[t]he defendant has no duty or obligation to call any witnesses

or produce any evidence,” and that the presumption of innocence

“places upon the prosecution the duty of proving every material

element of the offense charged against the defendant beyond a

reasonable doubt.”    During his closing argument, defense counsel

stated multiple times that the State bore the burden of proving

its case beyond a reasonable doubt.        For example, defense counsel

stated:   “Gerald has no burden of proof.        He has no duty to

present evidence.    He has no duty to present witnesses. . . .

And he has no burden at all to prove his innocence.”            Further,

during the State’s rebuttal closing argument, the prosecutor

asserted that “the prosecution has the burden of proof.            And it’s

a burden that I glad ly [sic] bear.”

           Based on the foregoing, and in light of the totality of

the evidentiary record, we do not believe that the prosecutor’s

fleeting comments in closing argument concerning Austin’s lack of

an alibi and uncorroborated testimony affected his substantial

rights, as the comments were harmless beyond a reasonable doubt.


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Consequently, the circuit court did not plainly err by failing to

intervene and address the comments during the State’s closing and

rebuttal closing argument.

          With respect to Austin’s second burden-shifting

argument, we hold that the State’s remarks on the DNA evidence

were not improper.    Fairly read, the prosecutor did not insinuate

or otherwise imply that Austin bore the burden of refuting the

State’s DNA evidence.     Rather, in making the disputed comments,

the prosecutor simply restated the evidence presented at trial--

that Austin’s DNA had been found in the fluid samples recovered

from Skinner’s body and that the darker-colored pubic hair found

on Skinner could have been Austin’s--and appropriately commented

on the legitimate inferences that such evidence supported--that

Austin was the individual who brought about Skinner’s death.

Such comments fell within the wide latitude that prosecutors have

in discussing the state of the evidence, and the reasonable

inferences that can be drawn therefrom, during closing argument.

Clark, 83 Hawai#i at 304, 926 P.2d at 209. Consequently, the

prosecutor’s remarks concerning the DNA evidence did not

constitute misconduct.

          We conclude that although two of the prosecutor’s

comments may have improperly inferred that Austin bore the burden

of proving that he had an alibi and producing evidence to


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corroborate his testimony, the comments were harmless beyond a

reasonable doubt and did not affect Austin’s substantial rights.

Thus, the circuit court did not plainly err by not interceding

and taking corrective action.        We further conclude that the

prosecutor’s comments regarding the State’s DNA evidence did not

constitute misconduct.

            2.    Misstating the Elements of the Offense

            Austin argues that his conviction should be overturned

because the prosecutor “completely misstated the second element

of Murder in the Second Degree[6] and the State’s burden with

regard to HRS § 706-660.2[7]” when he stated:
            But the prosecution is only required to prove what the
            law says. And based on the instructions that rest on



6
      HRS § 707-701.5(1) (Supp. 1988) provides: “(1) Except as provided in
section 707-701, a person commits the offense of murder in the second degree
if the person intentionally or knowingly causes the death of another person.”

7
      HRS § 706-660.2 (Supp. 1988) provides, in relevant part:

            Notwithstanding section 706-669, a person who, in the
            course of committing or attempting to commit a felony,
            causes the death or inflicts serious or substantial
            bodily injury upon a person who is:

                  (1) Sixty years of age or older;

                  . . . .

            and such disability is known or reasonably should be
            known to the defendant, shall, if not subjected to an
            extended term of imprisonment pursuant to section 706-
            662, be sentenced to a mandatory minimum term of
            imprisonment without possibility of parole as follows:

                  (1) For murder in the second degree–-up to
                  fifteen years.




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           your lap, there are only three things.
                 Has the evidence demonstrated that on the date
           prescribed, that the defendant intentionally or
           knowingly engaged in certain conduct? 2) As a result
           of that conduct, did he cause Ms. Skinner’s death?
           And 3) Once you’ve concluded that, has the evidence
           demonstrated that Ms. Skinner was 60 years or older?
           That’s all that the prosecution has placed upon it as
           its burden.

Austin asserts that the prosecutor relieved the State of its

obligation to prove Austin’s state of mind with regard to causing

Skinner’s death, and relieved the State of its burden of proving

Austin’s state of mind as to Skinner’s age.          As Austin did not

object to the comment at trial, we must again consider whether

the prosecutor’s comment constituted misconduct and, if so, where

the circuit court plainly erred in declining to take corrective

action.   Clark, 83 Hawai#i at 304, 926 P.2d at 209.

           Arguments of counsel which misstate the law are subject

to objection and to correction by the court.          State v. Mahoe, 89

Hawai#i 284, 290, 972 P.2d 287, 293 (1998).         However, improper

comments by a prosecutor can be cured by the court’s instructions

to the jury, and it will be presumed that the jury adhered to the

court’s instructions.     State v. Kupihea, 80 Hawai#i 307, 317-18,

909 P.2d 1122, 1132-33 (1996).

           In State v. Klinge, the defendant was convicted of

terroristic threatening in the first degree for having placed

objects resembling bombs near several religious institutions.               92

Hawai#i 577, 580-83, 994 P.2d 509, 512-15 (2000).          On appeal, the


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defendant argued that the prosecutor misstated the elements of

terroristic threatening in the first degree when he stated that

the jury could find the defendant guilty if the jury determined

that the defendant “scared a lot of people . . . [or] caused

evacuation of one or more building[s]. . . . ”             Id. at 596, 994

P.2d at 528 (alterations in original).

             This court observed that “it is clear that the

prosecutor misstated the law” when he made the foregoing comment.

Id.    However, the Klinge court held:
                   Nonetheless, we believe the instructions of the
             court in its charge to the jury, both before and after
             the presentation of evidence, remedied any potential
             harm to Klinge. Throughout the trial, the court made
             it clear to the jury that it was to apply the law as
             it was given to them by the court.  Thus, in view of
             the court’s proper instructions on terroristic
             threatening, Klinge fails to show that the
             prosecution’s momentary misstatement of law amounts to
             reversible error.

Id. (emphasis added).

             The facts in Klinge parallel the facts in this case.

Here, the prosecutor misstated the law when he omitted that the

State was required to prove that the defendant “intentionally or

knowingly caused the death of another person” when commenting on

the elements of murder in the second degree.             See HRS § 707-

701.5.     The prosecutor also misstated the law when he left out

the fact that the State had to prove that Austin knew or

reasonably should have known that Skinner was over the age of

sixty.     See HRS § 706-660.2.

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           However, as in Klinge, the prosecutor’s misstatements

here did not substantially prejudice Austin’s right to a fair

trial.   Prior to the parties’ closing arguments, the circuit

court correctly instructed the jury on the elements of murder in

the second degree and the requirements of HRS § 706-660.2; the

jury members already had these correct instructions before them

as the parties delivered their closing arguments.           The circuit

court also instructed that “[i]n the event that a statement or

argument made by a lawyer contradicts or misstates these

instructions, you must disregard that statement or argument and

follow these instructions,” and that “[s]tatements or remarks

made by counsel are not evidence.”        Further, during the State’s

closing argument, the prosecutor correctly reiterated the

elements of murder in the second degree and properly articulated

the State’s burden under HRS § 706-660.2.         Defense counsel also

correctly restated the elements of murder in the second degree

during his closing argument.

           In view of the circuit court’s correct instructions,

both parties’ otherwise accurate recitations of the law

throughout their closing arguments, and the evidentiary record as

a whole, we hold that the prosecutor’s momentary misstatements of

the law did not affect Austin’s substantial rights, as they were

harmless beyond a reasonable doubt.        Accordingly, the circuit


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court did not plainly err by not stepping in and taking

corrective action.

      3.    Assertions that Austin “Lied” to the Police and
            Jury.

            Austin makes four arguments in support of his

contention that the circuit court erred in denying his motion for

a new trial based on the prosecutor’s comments that Austin “lied”

to the jury at trial and “lied” to the police in his recorded

interview.    We address each argument in turn.

            First, Austin argues that while this court “has not yet

held that it is absolutely improper for a prosecuting attorney to

refer to the defendant [as] a ‘liar’[8] or say that he ‘lied,’”

he “urge[s] this court to adopt a rule that blanket assertions

that a defendant has lied or is a liar constitute prosecutorial

misconduct and that where the defendant’s credibility is a key

issue in determining his guilt such misconduct demands that the

defendant receive a new trial.”

            Austin correctly observes that this court has not

previously prohibited prosecutors from arguing in their closing

arguments that the defendant “lied.”         However, we believe that

his proposed rule should not be adopted because it is at odds



8
      During closing argument, the prosecutor did state that Austin “lied” and
that several of Austin’s statements in his recorded police interview and
direct examination were “lies,” but he did not at any point call Austin a
“liar.”

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with our precedent addressing the boundaries of a prosecutor’s

ability to, during closing argument, comment on the state of the

evidence and draw inferences regarding the defendant’s

credibility when the defendant testifies as a witness at trial.

          In State v. Clark, the defendant was charged with

attempted second-degree murder for allegedly stabbing his wife in

the chest after an argument.       83 Hawai#i at 291-93, 926 P.2d at

196-98.   At trial, conflicting evidence was presented to the jury

regarding the defendant’s drug usage prior to the incident.              Id.

at 305, 926 P.2d at 210.      While the complaining witness testified

that she and the defendant had ingested cocaine, the defendant

denied taking any drugs and testified that he was familiar with

drugs, that he knew where to purchase them, that he was with his

wife the previous evening when she purchased and used cocaine,

and that he attempted to purchase more cocaine for her.            Id.

Based on this conflicting evidence, the prosecutor argued,

“[w]hen the defendant comes in here and tells you that he was not

on cocaine that night, that just--it’s a cockamamie story and

it’s asking you to take yourselves as fools.”          Id. at 304, 926

P.2d at 209 (alteration in original) (footnote omitted).            On

appeal, the defendant argued that the comment constituted

prosecutorial misconduct.      Id.

          The Clark court first observed that “[i]t is generally


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recognized under Hawai#i case law that prosecutors are bound to

refrain from expressing their personal views as to a defendant’s

guilt or the credibility of witnesses.”         Id.   However, this court

noted that “a prosecutor, during closing argument, is permitted

to draw reasonable inferences from the evidence and wide latitude

is allowed in discussing the evidence.”         Id.   This court further

acknowledged that “[i]t is also within the bounds of legitimate

argument for prosecutors to state, discuss, and comment on the

evidence as well as to draw all reasonable inferences from the

evidence.”   Id.   Recognizing that other courts have upheld

similar remarks in closing argument, the Clark court held:
                Based upon the [conflicting] evidence in the
          present case and the context in which the phrase
          “cockamamie story” was utilized . . . the prosecutor
          was well within the limits of propriety to infer, and
          indeed argue, that Clark’s denial of drug usage was
          improbable, untruthful, and, in short, a “cockamamie
          story.” Accordingly . . . there was no misconduct on
          the part of the prosecutor in this case.

Id. at 306, 926 P.2d at 211.

          Since Clark, this court has upheld the following

comments made by a prosecutor during closing argument concerning

the defendant’s credibility (or lack thereof) as a witness:             (1)

argument that the defendant, as well as some of his witnesses,

had testified falsely, but that the State’s witnesses had not,

Cordeiro, 99 Hawai#i at 425-26, 56 P.3d at 727-28; (2) argument

that the “evidence adduced at trial did not comport with defense

counsel’s assertions during opening statements,” State v.

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Valdivia, 95 Hawai#i 465, 482-83, 24 P.3d 661, 678-79 (2001); and

(3) argument that the defendant’s testimony was disingenuous

because he failed to “explain away” how his DNA was found at the

crime scene.   Hauge, 103 Hawai#i at 54-57, 79 P.3d at 147-50.

           In sum, we have held that it is not improper for

prosecutors to assert that a defendant’s testimony is not

credible in a variety of ways so long as such an inference is

reasonably supported by the evidence.        This court has even

permitted the use of a brusque colloquialism as a means of

arguing that the defendant is not credible as a witness.            See

Clark, 83 Hawai#i at 306, 926 P.2d at 211.         Thus, while we do not

condone or encourage the use of terse idioms or, as was the case

here, repeated assertions that the defendant “lied” as a

preferred means of questioning the credibility of a defendant’s

testimony, we believe that such remarks do not amount to

misconduct when they are supported by the evidence adduced at

trial.   Our position on this point is consistent with appellate

courts in other jurisdictions across the nation, which have also

determined that it is not improper for a prosecutor to assert

during closing argument that the defendant “lied” when such

assertions are supported by the evidence that was presented

trial.   See e.g., People v. Edelbacher, 766 P.2d 1, 30 (Cal.

1989) (in bank) (“Referring to the testimony and out-of-court


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statements of a defendant as ‘lies’ is an acceptable practice so

long as the prosecutor argues inferences based on evidence rather

than the prosecutor’s personal belief resulting from personal

experience or from evidence outside the record.”); State v.

McKenzie, 134 P.3d 221, 229 (Wash. 2006) (en banc) (“Where a

prosecutor shows that other evidence contradicts a defendant’s

testimony, the prosecutor may argue that the defendant is

lying.”); Commonwealth v. Coren, 774 N.E.2d 623, 631 n.9 (Mass.

2002) (“[W]here the evidence clearly supports the inference that

the defendant lied, the prosecutor may fairly comment on it.”);

Hull v. State, 687 So.2d 708, 721 (Miss. 1996) (“It is not

improper for a prosecutor to comment that the defendant was lying

when the contention is supported in the record.”).9

9
      See also, State v. Lankford, 399 P.3d 804, 827-28 (Idaho 2017) (holding
that “although the repeated use of the term ‘liar’ and its various grammatical
forms is troubling and ill-advised, it did not rise to the level of
prosecutorial misconduct” because “the prosecutor supported his assertions
with evidence presented during the trial”); Davis v. State, 698 So.2d 1182,
1190 (Fla. 1997) (concluding that the prosecutor’s references to the
defendant’s tape-recorded confessions as “bald-faced lies” during closing
argument “did not cross the line into improper argument” because “[w]hen it is
understood from the context of the argument that the charge is made with
reference to the evidence, the prosecutor is merely submitting to the jury a
conclusion that he or she is arguing can be drawn from the evidence”); Cooper
v. State, 854 N.E.2d 831, 835-37 (Ind. 2006) (determining that the
prosecutor’s references to the defendant’s testimony as “lies” and
characterization of the defendant as a “liar” was not improper because the
evidence at trial supported the inference that the defendant did not tell the
truth when he testified before the jury); People v. Mastowski, 155 A.D.3d
1624, 1625 (N.Y. App. Div. 2017) (determining that the prosecutor’s argument
that the “defendant ‘lie[d] to the police about his alcohol consumption’ prior
to operating his motor vehicle . . . was fair comment on the evidence”
(brackets in original)); United States v. Sullivan, 522 F.3d 967, 982 (9th
Cir. 2008) (concluding that the prosecutor’s assertions that the defendant
“lied or misled the bankruptcy court” and “[told] lies to bankruptcy counsel”
during closing argument did not constitute misconduct because “they were a
                                                                (continued...)

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            Second, Austin asserts that the prosecutor engaged in

misconduct by expressing his personal opinion regarding Austin’s

credibility by repeatedly stating that Austin had lied.             This

argument is also without merit.

            In Cordeiro, the defendant was convicted of murder in

the second degree, robbery in the first degree, and two firearms-

related offenses.     99 Hawai#i at 397, 56 P.3d at 699.         On appeal,

the defendant argued that the prosecutor engaged in misconduct

when during closing argument, the prosecutor suggested that

certain witnesses, including the defendant, were lying, while

others were being truthful.       Id. at 425, 56 P.3d at 727.

9
  (...continued)
fair inference” from facts supported by evidence at trial (brackets in
original)); State v. Gonzales, 884 N.W.2d 102, 118-19 (Neb. 2016) (declining
to adopt a per se rule that a prosecutor engages in misconduct by arguing that
the defendant “lied,” and concluding that, based upon the context in which it
was made, the prosecutor’s statement that the defendant lied in that case did
not constitute misconduct because the remark “was nothing more than commentary
on what the prosecutor believed the evidence showed”); Commonwealth v.
Sanchez, 82 A.3d 943, 981-82 (Pa. 2013) (concluding that the prosecutor did
not engage in misconduct in remarking that the defendant had lied during his
trial testimony because such argument was a proper response to defense
counsel’s arguments regarding the credibility of other witnesses, and because
the prosecutor did not characterize his attack on the defendant’s credibility
as reflecting his own opinion); Duke v. State, 99 P.3d 928, 956-59 (Wyo. 2004)
(holding that the prosecutors’ repeated assertions to the jury that the
defendant had lied did not constitute misconduct because “the prosecutors were
merely pointing out that the evidence and the testimony of the prosecution’s
witnesses contradicted that of [the defendant] and express[ed] the
prosecutions’ position upon inferences to be drawn from that testimony and the
other evidence presented at trial”); Rogers v. State, 280 P.3d 582, 589
(Alaska Ct. App. 2012) (“It is not plain error for the prosecutor to assert
that the defendant is a liar when that argument is based on the evidence.”);
People v. Starks, 451 N.E.2d 1298, 1305 (Ill. App. Ct. 1983) (“It is not
improper comment to call the defendant or a witness a ‘liar’ if conflicts in
evidence make such an assertion a fair inference.”); State v. Pedro S., 865
A.2d 1177, 1187-88 (Conn. App. Ct. 2005) (holding that although
unprofessional, prosecutor’s repeated assertions that the defendant had “lied”
and that the defendant was a “liar” did not constitute misconduct because the
argument was supported by the evidence at trial).

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          This court acknowledged that “prosecutors are bound to

refrain from expressing their personal views as to a defendant’s

guilt or the credibility of witnesses.”         Id. at 424-25, 56 P.3d

at 726-27.   But, this court noted that “Cordeiro has failed,

however, to cite any example . . . of the DPA expressing his

personal views regarding Cordeiro’s guilt or a witness’

credibility.   Nor can we find any.”       Id. at 425, 56 P.3d at 727.

The Cordeiro court concluded that the prosecutor appropriately

argued that the defendant and his alibi witnesses were untruthful

“based on the conflicting evidence presented at trial” and that

such argument was “permissible under our holding in Clark.”             Id.

          As in Cordeiro, Austin has failed to cite any language

indicating that the prosecutor was expressing his personal

opinion as to Austin’s credibility during the State’s closing and

rebuttal arguments.     The prosecutor’s argument that Austin was an

untrustworthy witness because he had “lied” was properly based on

conflicting evidence presented at trial.         Austin’s statements in

his recorded interview, in which he unequivocally denied having

sexual intercourse with Skinner or any other individual in the

Makua Ali#i building, directly conflicted with his testimony at

trial, in which he stated that he had consensual sex with an

elderly resident at the Makua Ali#i building.         Therefore, because

the prosecutor’s comments reflected the reasonable inference that


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Austin was not truthful in his 2012 recorded statement, his

testimony before the jury, or both, we hold that the comments

were not improper.10

            Third, relying upon State v. Basham, 132 Hawai#i 97,

319 P.3d 1105 (2014), Austin appears to argue that the prosecutor

committed misconduct by introducing the fact that Austin lied to

the police for the first time during closing argument.              Austin

seems to contend that pursuant to Basham, such a comment must be


10
      Relying upon State v. Marsh, 68 Haw. 659, 728 P.2d 1301 (1986), the
Dissent contends that the prosecutor improperly expressed his opinion
regarding Austin’s credibility during closing argument by repeatedly
contending that Austin lied. Dissent at 13-14. The Dissent observes that the
prosecutor in Marsh similarly argued that the defendant lied during her
testimony, and concludes that Marsh supports that the prosecutor in this case
committed misconduct for making comparable comments. Dissent at 13-14.
      Indeed, in Marsh, the prosecutor made the following statement during
closing argument regarding the defendant’s testimony: “Use your common sense,
ladies and gentlemen. That is not true. It’s another lie. It’s a lie,
ladies and gentlemen, an out-and-out lie.” 68 Haw. at 660, 728 P.2d at 1302.
However, the Marsh court’s analysis did not turn on this comment alone. See
id. at 660-61, 728 P.2d at 1302-03. This court observed that the prosecutor
made numerous comments during closing argument which explicitly expressed her
personal opinion that the defense witnesses did not testify truthfully. Id.
at 660, 728 P.2d at 1302. For example, in commenting on the testimony of one
of the defense’s witnesses, the prosecutor stated: “You should entirely
disregard their testimony because, if you will remember, every one of them
lied on the stand. . . . I sincerely doubt if she [witness] had seen Christina
Marsh there.” Id. (alterations in original) (emphasis added). Similarly, in
commenting on a witness’s testimony, the prosecutor stated: “I find that
awfully hard to believe.” Id.
      Therefore, in Marsh, this court held that the prosecutor’s comments were
improper because they explicitly referenced her personal opinion that the
defense witnesses and the defendant lied in their testimony at trial. Id. at
660-61, 728 P.2d at 1302-03. This court did not determine that the
prosecutor’s statement that the defendant lied, in and of itself, improperly
reflected the prosecutor’s personal opinion with respect to the defendant’s
credibility. See id. Accordingly, Marsh is distinguishable from the present
case, and does not support that the prosecutor committed misconduct by
expressing his personal opinion regarding Austin’s credibility. See Cordeiro,
99 Hawai#i at 424, 56 P.3d at 726 (concluding that the prosecutor did not
commit misconduct because “Cordeiro has failed, however, to cite any example,
as in Marsh, of the DPA expressing his personal views regarding Cordeiros’s
guilt or a witness’ credibility”).

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considered especially prejudicial to the defendant, and that

“[a]ny allegation that Austin lied to the police should have been

weighed under HRE Rules 401, 402, 403, and 404.”           As Austin did

not raise this argument before the circuit court, we must again

review for plain error.     Clark, 83 Hawai#i at 304, 926 P.2d at

209.

           In Basham, the defendant and his son were convicted of

assault in the first degree as accomplices in connection with an

altercation that arose out of a car accident.          132 Hawai#i at

100-03, 106, 319 P.3d at 1108-11, 1114.         The defendant and his

son had allegedly aided another person, referred to as “Driver,”

who had punched the complaining witness in the face.            Id. at 101-

02, 319 P.3d at 1109-10.      While discussing the defendant’s role

in the altercation during closing argument, the prosecutor

argued, for the first time, that the defendant “lied to the

police” because the officer who was initially dispatched to the

scene identified the defendant as the driver of one of the cars

involved in the accident, and that only the defendant could have

been the source of such information.        Id. at 105, 319 P.3d at

1113.   On appeal, the defendant contended that the prosecutor

engaged in misconduct by arguing that the defendant lied to the

police.   Id. at 108, 319 P.3d at 1116.        The ICA affirmed the

defendant’s conviction.     Id.


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            On certiorari, this court first acknowledged that the

defendant did not testify at trial and that the record was

unclear as to what the defendant had said to the police officer.

Id. at 113, 319 P.3d at 1121.         This court further noted that

because lying to the police “is generally perceived by the public

as particularly wrongful and may have also constituted the crime

of false reporting to law-enforcement authorities,” any evidence

that the defendant had lied to the police would have been subject

to HRE Rule 404(b)11 as evidence of “other acts,” in addition to

being subject to balancing under HRE Rule 403.12            Id. at 113-14,

319 P.3d at 1121-22.       Thus, because the prosecutor referenced the

defendant’s lie for the first time during closing argument, this

court held:



11
      HRE Rule 404(b) (1985) provides, in pertinent part:

            Evidence of other crimes, wrongs, or acts is not
            admissible to prove the character of a person in order
            to show action in conformity therewith. It may,
            however, be admissible where such evidence is
            probative of another fact that is of consequence to
            the determination of the action, such as proof of
            motive, opportunity, intent, preparation, plan,
            knowledge, identity, modus operandi, or absence of
            mistake or accident.

12
      HRE Rule 403 (1985) provides:

            Although relevant, evidence may be excluded if its
            probative value is substantially outweighed by the
            danger of unfair prejudice, confusion of the issues,
            or misleading the jury, or by considerations of undue
            delay, waste of time, or needless presentation of
            cumulative evidence.




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          Basham had no opportunity to rebut the allegation with
          evidence. It is apparent that the prosecutor is not
          permitted to bypass the evidentiary rules in this
          manner by asking the jury to infer conduct which, if
          it had been introduced during the trial, would have
          been subject to the limitations of Rule 404(b).

Id. at 114, 319 P.3d at 1122.

          The facts of the present case are significantly

distinguishable from those in Basham.        In Basham, this court held

that the prosecutor had engaged in improper argument because in

remarking that the defendant had lied to the police for the first

time during closing argument, the prosecutor introduced a new

substantive fact that may have been inadmissible at trial and for

which no evidence had been introduced.         132 Hawai#i at 113-15,

319 P.3d at 1113.    By contrast, here, the prosecutor’s comment

that the defendant had lied to the police was directed towards

attacking Austin’s credibility as a witness and was based on

evidence properly admitted at trial.        Therefore, Basham is

inapposite to the present case, and Austin’s argument based

thereupon is without merit.

          Finally, Austin argues that the prosecutor engaged in

misconduct when he stated:      “We’re not here simply because his

genetic fingerprint is in the murder victim.          We’re also here

because when confronted and given an opportunity to explain

himself, he lied to the police.       And he’s lied to you.”       To

Austin, the comment improperly “implied that Austin would not

have been arrested or charged if he told the truth to the police”

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and “[misled] the jury about the evidence, injected issues

broader than Austin’s guilt or innocence into the jury’s

deliberation of the case, and was a total misrepresentation of

the underlying facts.”

          Austin mischaracterizes the prosecutor’s statement and

ignores the context in which it was made.         Prior to making the

contested comment in rebuttal argument, the prosecutor stated:
                The defendant would . . . paint the defendant in
          a sympathetic light to explain why he was unable to
          come up with the truth when he spoke with the police.
          It was 22 years ago, the defense says to you. Who
          remembers anything that happened 22 years ago? The
          police had what they wanted and they were pressing
          him.
                The defendant knew why he was [at the police
          station] and what he was being questioned about. . . .
          There was no mystery why he was there. He wasn’t
          tricked. He wasn’t coerced. Do not feel sorry for
          him. He knew why he was there and he opted to speak.
                He told you under cross-examination that there
          was only one woman in the Makua Alii building with
          whom he had had intercourse. That’s what he said.
          How is it when he’s being questioned by homicide
          detectives that he conveniently forgets that one
          experience and cannot make the connection in his mind
          that the police are there to question him about that
          one experience?
                Do not feel sorry for him. As [defense counsel]
          said, We’re not here to make decisions based on pity,
          passion, or prejudice. But the defendant is not
          deserving of your pity and he is unworthy of your
          passion. He knew why he was there, and he straight-up
          lied to the police.
                We’re not here simply because his genetic
          fingerprint is in the murder victim. We’re also here
          because when confronted and given an opportunity to
          explain himself, he lied to the police. And he’s lied
          to you.

(Emphasis added.)    Viewed in context, it appears that the

prosecutor was responding to defense counsel’s assertion during

Austin’s closing argument that Austin did not mention that he had


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sexual intercourse with an elderly woman in the Makua Ali#i

building during his interview with the police because Austin was

intimidated and uncertain about the matters he was being asked

about.   Such comments fell within the wide latitude that

prosecutors have in rebuttal closing to respond to arguments

raised by defense counsel in closing argument, and did not

constitute misconduct.     State v. Mars, 116 Hawai#i 125, 142, 170

P.3d 861, 878 (App. 2007).

           To conclude, we believe that it was not improper for

the prosecutor to argue that Austin’s testimony was unworthy of

belief, and that he had lied to the police and to the jury.

           4.   Use of Disparaging Epithets

           Austin argues that the prosecutor attempted to inflame

the passions of the jury and distract them from properly

considering the evidence when the prosecutor characterized Austin

as “a permanent resident of Fantasy Island,” and           “a

misunderstood Casanova, wooer of women of the Makua Alii

building, someone whom Edith Skinner found so -- so appealing, so

irresistible that she knowingly invited a stranger to her home on

a second-chance encounter and invited him to have sexual

intercourse with her . . . he’s simply a misguided and

misunderstood Casanova.”      We review for plain error, as Austin

did not object to the comment at trial.         Clark, 83 Hawai#i at


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304, 926 P.2d at 209.

            In State v. Pacheco, the defendant was charged with

escape in the second degree when, after being arrested for

drinking in a public park, the defendant ran away from the

police, leaped over a wall into a stream, and swam therein until

the fire department managed to extract him, with some difficulty

due to his resistance.      96 Hawai#i 83, 87-88, 26 P.3d 572, 576-77

(2001).    During the State’s rebuttal argument, the prosecutor

commented on the defendant’s uncooperativeness, arguing:

“Everybody that wanted to help him, this defendant spit at, he

kicked at.    He was totally uncooperative.        He was being an

asshole.    And that explains his actions.”        Id. at 93, 26 P.3d at

582.   This court held that the comment was improper because:
            [T]he DPA’s characterization of Pacheco as an
            “asshole” strongly conveyed his personal opinion and
            could only have been calculated to inflame the
            passions of the jurors and to divert them, by
            injecting an issue wholly unrelated to Pacheco’s guilt
            or innocence into their deliberations, from their duty
            to decide the case on the evidence.

Id. at 95, 26 P.3d at 584.

            Unlike the comments by the prosecutor in Pacheco, the

prosecutor’s remarks in this case did not convey his personal

opinion about Austin’s personality or conduct.           Here, the

prosecutor used colloquialisms to simultaneously describe

Austin’s testimony, in which Austin stated that he and Skinner

had engaged in consensual sexual intercourse after speaking


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briefly on two occasions, and comment on the implausibility

thereof.   These remarks appear to respond to defense counsel’s

assertions in Austin’s closing argument that while the evidence

demonstrated that Austin had consensual sex with Skinner, Austin

was not responsible for her death.

           In short, the prosecutor’s comments did not constitute

misconduct because they did not “strongly convey[] [the

prosecutor’s] personal opinion” in an attack on Austin’s

character or personality, nor were they “calculated to inflame

the passions of the jurors and to divert them . . . from their

duty to decide the case on the evidence.”         Pacheco, 96 Hawai#i at

95, 26 P.3d at 584.     The remarks appropriately commented on the

evidence and fell within the wide latitude that prosecutors have

to respond to comments made by defense counsel in the defense’s

closing argument.    Clark, 83 Hawai#i at 304, 926 P.2d at 209,

Mars, 116 Hawai#i at 142, 170 P.3d at 878.

           5.   Reliance on Facts Not in Evidence in Delivering
                the Summary Narrative and Misstating the Evidence

                a.    The Summary Narrative

           Austin argues that the narrative that the prosecutor

presented to the jury during closing argument, in which he

summarized and described the State’s theory of how Skinner’s

death occurred, was “merely tangentially related to the evidence

that was actually introduced at trial” and was “more akin to the

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presentation of new evidence to the jury.”

            Upon review of the record, we conclude that all of the

statements that the prosecutor made throughout his summary

narrative were permissibly drawn inferences that were reasonably

supported by the evidence adduced at trial.          We therefore hold

that the circuit court did not err in ruling that the prosecutor

did not engage in misconduct when he presented the summary

narrative during closing argument.

                 b.     Misstating the Evidence and Misleading the
                        Jury.

            Austin did not object to either of the following two

instances of alleged misconduct at trial, nor did he raise these

arguments in his motion for a new trial.         Accordingly, we review

for plain error.      Clark, 83 Hawai#i at 304, 926 P.2d at 209.

            Austin contends that the prosecutor misstated the

evidence when he “indicated that nobody had testified that

Skinner ‘went swimming weekly at the Elk’s club in Waikiki.’”

Austin argues that such comment was false because Stephen Skinner

testified that as part of her “daily routine” in 1989, Skinner

would “go down quite a bit down to the Elk’s Club to swim.”

            Austin’s argument is without merit because the

prosecutor’s statements accurately commented on the state of the

evidence.    Clark, 83 Hawai#i at 304, 926 P.2d at 209 (“It is also

within the bounds of legitimate argument for prosecutors to

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state, discuss, and comment on the evidence as well as to draw

all reasonable inferences from the evidence.”).           While Stephen

Skinner testified that Skinner would “go down quite a bit down to

the Elk’s Club to swim,” no other witness explicitly testified

that Skinner went swimming on a “weekly” basis.           Thus, the

prosecutor did not completely mischaracterize or misstate the

evidence and did not engage in misconduct in making the contested

comment.   We therefore do not reach the issue of plain error.

           Finally, Austin argues that “the DPA exerted undue

pressure and distracted the jury from its duty of impartiality

and due care” when the prosecutor stated:         “After you’re excused

to begin your deliberations, select the foreperson and vote

quickly because justice in this case has waited too long.”

           The prosecutor’s comment was improper insofar as the

timeliness of a verdict should not be a pertinent consideration

on jurors’ minds as they deliberate.        But, the comment was

harmless beyond a reasonable doubt, and did not affect Austin’s

substantial rights.     While the prosecutor did encourage the jury

to resolve the case quickly, he did not explicitly invite the

jury to disregard their duty to carefully evaluate the evidence,

or to base their verdict on anything other than the evidence.

Further, shortly before asking the jury to “vote quickly,” the

prosecutor remarked that “this is in fact a serious case worthy


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of your complete attention and thoughtful analysis.”              And, the

record indicates that the jurors engaged in thoughtful

deliberations based on the facts and the law, and were not

primarily motivated by a desire to resolve the case quickly.                  For

example, on the second day of deliberations, the jurors sent a

jury communication that sought “clarification of what second

degree murder is.”

            Thus, we hold that while the prosecutor’s comment may

have improperly brought the timeliness of reaching a verdict to

the jurors’ attention, the remark was harmless beyond a

reasonable doubt, and did not affect Austin’s substantial rights.

The circuit court consequently did not plainly err by not

interceding and taking corrective action.

E.    Austin’s sentence violated Article 1, Section 10 of the
      United States Constitution and HRS § 1-3.

            According to Austin, the circuit court’s sentence of

life imprisonment without the possibility of parole was an

unconstitutional ex post facto application of the law and

violated HRS § 1-3, because HRS § 706-661 did not provide for a

life sentence without the possibility of parole in 1989, when the

offense in this case took place.13


13
      Austin did not bring this issue to the attention of the circuit court
and raises this argument for the first time on appeal. Hawai#i Rules of Penal
Procedure (HRPP) Rule 52(b) provides that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the
                                                                (continued...)

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            Article I, Section 10 of the United States Constitution

provides:     “No State shall . . . pass any . . . ex post facto

Law.”    The United States Supreme Court has stated that “[t]he

Constitution forbids the application of any new punitive measure

to a crime already consummated, to the detriment or material

disadvantage of the wrongdoer.”         Lindsey v. Washington, 301 U.S.

397, 401 (1937).      Furthermore, HRS § 1-3 (1985) states:          “No law

has any retrospective operation, unless otherwise expressed or

obviously intended.”

            Austin was sentenced to an extended term of life

imprisonment without the possibility of parole pursuant to HRS §§

706-661 and 706-662(5) (2014).         HRS § 706-661 (2014) states that

“[t]he court may sentence a person who satisfies the criteria for

any of the categories set forth in section 706-662 to an extended

term of imprisonment, which shall have a maximum length as

follows:    (1) For murder in the second degree--life without the

possibility of parole[.]”        However, the version of HRS § 706-661

that applied at the time of Skinner’s murder did not contain the

provision permitting such an extended sentence for those

convicted of murder in the second degree.           See HRS § 706-661

(1985).    That provision was not added to the statute until 1999,


13
 (...continued)
attention of the court.” Here, Austin’s extended sentence impacts his
constitutional rights. Pursuant to HRPP Rule 52(b), we notice plain error,
and consider the arguments he raises in this point of error on the merits.

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and the legislature did not express any intent for the amendment

to apply retroactively.     See HRS § 706–661 (1999).

          Therefore, we hold that Austin’s extended sentence

constitutes the application of a new punitive measure to a crime

that was already consummated in violation of Article I, Section

10 of the United States Constitution and HRS § 1-3.           Accordingly,

we vacate Austin’s sentence and remand the case for resentencing

in accordance with HRS § 706-661 (1985).

                            IV.    CONCLUSION

          Based on the foregoing, we affirm in part and vacate in

part the circuit court’s June 18, 2014 Judgment, Guilty

Conviction, and Sentence and remand the case to the circuit court

for resentencing.

William H. Jameson, Jr.               /s/ Mark E. Recktenwald
for defendant-appellant
                                      /s/ Paula A. Nakayama
Donn Fudo for
plaintiff-appellee                    /s/ Sabrina S. McKenna




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