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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000109
                                                              22-DEC-2017
                                                              07:59 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---O0O---
________________________________________________________________

                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee.

                                    vs.

                          PETER DAVID,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                            SCWC-12-0000109

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000109; CR. NO. 11-1-0050)

                           DECEMBER 22, 2017

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

                 OPINION OF THE COURT BY WILSON, J.

                            I.   INTRODUCTION

          Peter David (David) was charged with murder in the

second degree of Santhony Albert (Albert) and assault in the

second degree of Torokas Kikku (Kikku).         At trial before the
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Circuit Court of the First Circuit (circuit court),1 David

claimed that he acted in self-defense.          The jury found him

guilty of the lesser included offenses of manslaughter and

assault in the third degree.

           We consider only one issue on certiorari review:

whether the Intermediate Court of Appeals (ICA) gravely erred in

holding that the trial court did not abuse its discretion by

allowing the State of Hawaiʻi to present testimony in rebuttal

that went beyond the limited scope permitted by the trial court

and introduced evidence of David’s uncooperative behavior with

the police.2

           We hold that the State’s rebuttal testimony was

improper because it exceeded the limited scope of testimony

permitted by the court, and the introduction of the improper

rebuttal testimony was not harmless error.           Accordingly, we

vacate the ICA’s judgment on appeal and the circuit court’s

judgment of conviction and sentence, and remand for a new trial

on both offenses.


     1
           The Honorable Randal K.O. Lee presided.
     2
            We do not reach David’s second issue, whether the ICA gravely
erred in remanding David’s case for resentencing rather than for a new trial
given the misconduct of the prosecutor during sentencing, because we hold
that the first error already necessitates remand for a new trial. Likewise,
we also decline to analyze the alleged prosecutorial misconduct during the
State’s closing argument for plain error as requested in David’s application
for certiorari.

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                             II.    BACKGROUND

           The undisputed evidence established that on the night

of January 1, 2011, David and his cousin, Albert, were involved

in a fight outside an apartment on Awanei Street in Waipahu that

ended with David fatally stabbing Albert.          After David stabbed

Albert, Albert’s aunt, Torokas Kikku (Kikku), confronted David.

Kikku sustained minor injuries as a result of the confrontation.

The primary disputed issues at trial were whether David or

Albert was the aggressor, and whether David acted in self-

defense.

    A.     Trial Court Proceedings

           On January 12, 2011, the State filed a complaint in

the circuit court charging David with murder in the second

degree of Albert, in violation of Hawaiʻi Revised Statutes (HRS)

§§ 707-701.53 and 706-656.4        The State also charged David with



     3
           HRS § 707-701.5 (1993) provides, in relevant part:

                 (1) . . . a person commits the offense of
           murder in the second degree if the person
           intentionally or knowingly causes the death of
           another person.

                 (2) Murder in the second degree is a felony for
           which the defendant shall be sentenced to
           imprisonment as provided in section 706-656.
     4
            HRS § 706-656(2) (Supp. 2010) provides, in relevant part: “. . .
persons convicted of second degree murder and attempted second degree murder
shall be sentenced to life imprisonment with possibility of parole.”



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assault in the second degree of Kikku, in violation of HRS §

707-711(1).5   David’s jury trial began on September 26, 2011.

          1.    The State’s Case-in-Chief

          The State called eight witnesses in its case-in-chief,

including Kikku.    Kikku described David as the aggressor in the

confrontation between David and Albert.         According to Kikku, she

attended a party in Kalihi on January 1, 2011 with her husband

Erick Sam (Sam), at which both Albert and David were present.

Kikku testified that she did not drink, but the men (including

David, Sam, and Albert) were drinking beer and vodka.            After an

argument broke out at the party, Albert, Kikku, Sam, and a few

others left the Kalihi house in Albert’s car and went to Kikku’s

Awanei Street apartment in Waipahu.        Kikku testified that before

they left Kalihi, David told Albert to give him the beer in

Albert’s car; in response, Albert offered David one beer.              David


     5
          HRS § 707-711(1) (Supp. 2010) provides, in relevant parts:

                (1) A person commits the offense of assault in
          the second degree if:

                (a) The person intentionally or knowingly
                    causes substantial bodily injury to
                    another;

                (b) The person recklessly causes serious or
                    substantial bodily injury to another;

                . . . .

                (d) The person intentionally or knowingly causes bodily
                    injury to another with a dangerous instrument . . . .


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rejected Albert’s offer and demanded all of the beer.             Kikku

testified that after Albert offered David the one beer, Kikku,

Sam, and Albert departed for the Awanei Street apartment.               At

around 8:00 p.m., Kikku, Sam, Albert, and the others in Albert’s

car arrived at the Awanei Street apartment.           The men started

drinking, and about thirty minutes later, David arrived.             Kikku

testified that she did not invite David into the apartment, but

told Sam that David was there.        Sam went outside and told David

not to come in, but David entered anyway.

           Once inside the apartment, David began drinking beer

with Albert and Sam.      Some time afterwards, Kikku heard the

police come to her apartment and knock on the door.6            Kikku

testified that while the police were at the door on the lanai,

David and Albert were in the parking lot downstairs.            Kikku did

not know whether the police talked to David and Albert, but

after the police left, David and Albert came back upstairs.

           When David and Albert came back into the apartment,

Kikku noticed a scratch on David’s nose that was not bleeding

but looked “fresh.”      In regard to the scratch on David’s nose,

David told Albert “how come you do this to me, no man can do

this to me,” and he looked angry.         Immediately after this


      6
            Kikku would later clarify that the police were called to the
apartment by a neighbor.

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exchange, David went outside and told Albert to go with him.

Kikku held Albert’s hand to stop him from going downstairs, and

told him not to go, but Albert followed David outside.            Within

the next ten seconds, Kikku followed Albert out of her apartment

where she went outside and saw David chase and hit Albert in the

back of the head.    Kikku did not know whether David had anything

in his hand when she saw him hit Albert.

           Kikku followed David and Albert, and after turning a

corner she saw Albert bending over with his torso parallel to

the ground.    Kikku went over to Albert to help him back to her

apartment.    She did not realize he was bleeding or hurt at the

time.

           Kikku tried to walk Albert toward the apartment, but

Albert had trouble walking.      Kikku then saw David return with a

rock in each hand, raised slightly above his shoulders.            Kikku

ran over to David and pushed him, trying to block him from

Albert, and David pushed her back with the rocks, causing

scratching under Kikku’s arm and under her chin.

           Kikku let go of David after he pushed her with the

rocks.    At that point, she saw David run over to Albert, who was

now laying face-up on the ground.        David straddled Albert and it

appeared to Kikku that David was going to throw the rocks onto

Albert.    When Kikku began screaming, David looked up, threw the

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rocks away, and ran away.      Kikku and another person at the

apartment carried Albert upstairs.         The paramedics arrived and

attempted CPR, and at this time Kikku realized that Albert was

bleeding and had been stabbed.       Albert was taken to the Hawaiʻi

Medical Center West where he died at approximately 1:31 a.m.

from a stab wound that punctured his heart.

           2.   The Defense’s Case

           After the prosecution rested its case, the defense

called David as a witness.      David’s primary defense was that he

acted in self-defense.     In his testimony, he disputed Kikku’s

account.   He contended that he was invited into Kikku and Sam’s

Awanei Street apartment and that Albert was the aggressor in the

fatal confrontation.

           David testified that, prior to the confrontation at

the Awanei Street apartment, on the evening of January 1, 2011,

he attended a party at a relative’s house in Kalihi.           At the

party, Albert approached him and said, “why are you looking at

me, you want me to beat you up.”         David did not respond.     David

testified that after the threat from Albert, he left the

apartment in Kalihi, and received a ride to Kikku and Sam’s

Awanei Street apartment in Waipahu.         David denied Sam told him

not to come inside to the party.         He maintained that Sam never

told him to go home.     He recalled that just before the police

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arrived at the apartment, he was on the balcony and Albert was

inside the apartment.      When the police arrived, both David and

Albert went downstairs.       David testified that he did not speak

with the police when they came to the Awanei Street address.

            After the police left, David and Albert went back

upstairs and sat at the table in the living room.            At that time,

David told Albert to give him a beer, but according to David,

Albert instead punched him and struck his nose with a beer

bottle.   Albert told David “see, I can — I can beat you up,” and

David felt scared.      Albert then challenged David to follow him

downstairs to the parking lot for a fight.7          David remained

sitting for a brief period, but eventually went downstairs

because Albert was calling him to come down to the parking lot,

and David wanted “to tell [Albert] and beg him not to do that to

me anymore.”

            David testified that after he went downstairs to the

parking lot, he was walking between two parked cars, when Albert

started kicking and punching him.         David fell down and Albert



      7
            Both David’s and Kikku’s testimony suggest that shortly after the
police left, David and Albert went downstairs to fight. Arlynn Ewen Moses
testified, however, that after the police left, David and Albert sat
together, during which time she was able to go to the store and return.
Officer Randall Woo (Officer Woo) testified that he responded to the call
that initially brought him to the Awanei Street apartment at 11:20 p.m. He
further testified that he returned to the same address an hour-and-a-half
later after David and Albert had their confrontation.

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continued kicking him.      While David was on the ground and Albert

was kicking him, David got “something” in his hand, and swung at

Albert with it.     After that, David stood up and Albert stopped

attacking him, backed off a little, and then he ran.            David ran

after Albert because he was “getting mad” at him.            After he

stopped and rested, David realized that Albert had injured him.8

For this reason, he became “really mad,” picked up two rocks,

and walked back towards Kikku and Albert.

           Kikku struggled to take the rocks from David, but

David overpowered her.      David then walked away from Kikku and

was “going to throw the rocks at [Albert],” but when he

approached Albert and saw him lying on the ground, he threw the

rocks away.     David then walked away; he did not at that time

think Albert was dead.

           3.    Recess in the Defense’s Case and Bench Conference

           During a recess in David’s testimony between direct

and cross-examination, the State informed the court of its

intent to call (1) Officer Woo as a rebuttal witness to show

that David falsely testified he had not spoken to the police,

and (2) Sam to show David falsely testified he was invited to

the party inside the Awanei Street apartment.           With respect to


      8
            David’s testimony does not reflect what kind of injury he claims
to have suffered.

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Officer Woo, the prosecutor stated that he “ha[d] been trying to

reach one of [his] witnesses that [he] was not able to put on in

[the] case-in-chief. . . . [I]t’s Officer Randall Woo, who [he

was] still trying to contact.”       When asked by the court for an

offer of proof as to the testimony of Officer Woo, the

prosecutor stated, “Officer Woo is the officer who responded to

the original call or complaint that there were males making

noise.   He responded at about 11:30 to the Awanei Street address

and spoke to both [Albert] and the defendant, which is contrary

to what the defendant has testified to.”         To further challenge

David’s credibility, the State sought to offer Sam’s testimony

that David was never invited to his apartment.

          The defense objected to both rebuttal witnesses,

arguing that, pursuant to State v. Duncan, 101 Hawaiʻi 269, 276

67 P.3d 768, 775 (2003), the State should have presented the

evidence from Officer Woo and Sam in its case-in-chief.            The

defense argued that under Duncan, the State was bound to give

all available evidence in support of the charges against David

in its case-in-chief, and was not permitted to withhold Officer

Woo’s testimony until rebuttal.       Duncan, 101 Hawaiʻi at 276, 67

P.3d at 775.   The State countered that it was unaware David

would deny speaking to the police and that Officer Woo’s

testimony only became relevant to David’s credibility once David

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surprised the prosecution by claiming during his direct

testimony he had not spoken to the police.         The defense raised

the issue that in the police report the State relied upon for

its theory of admissibility, “nowhere does Officer Woo identify

Mr. David or Mr. Albert as the specific person he talked to.”

          The court allowed the State to present its two

rebuttal witnesses for “the limited purpose” of establishing

whether David was invited to the Awanei Street apartment and

whether David or Albert spoke to the police.

          4.    The State’s Cross-Examination of David

          At the conclusion of the bench conference at which the

court acceded to the State’s request to call two rebuttal

witnesses, the State began cross-examination of David.            During

its examination, the State focused on David’s testimony that he

had not spoken to the police:

                Q:    Now, you testified last week that when the
          police come you did not talk to the police; correct?
                A:    No.
                Q:    Not at all?
                A:    No.
                Q:    Did the police officer come and tell you that
          you needed to leave the area?
                A:    No.
                . . . .
                Q:    So it’s your testimony that you did not speak
          to any police officer that night when they came over;
          correct?
                A:    Yes, I didn’t talk to them.
                Q:    And no police officer asked you to leave the
          area, is that what you’re telling us?
                A:    No.




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The prosecutor also asked David how he was wearing his hair on

the night of the incident.      David testified that his hair was

“not as long” but that it was tied back with a rubber band.              In

answer to the prosecutor’s questioning, he stated that Albert

had very short hair.

          5.    The Rebuttal Testimony of Officer Woo

          Officer Woo took the stand to rebut David’s testimony

that neither David nor Albert spoke to the police on the night

of the incident.    Officer Woo stated that he arrived at the

Awanei Street apartment at approximately 11:30 p.m. on the

evening of January 1, 2011 in response to a “suspicious

circumstance” call from a female at the same address.            Upon

arrival, he spoke to the female who called him.          Officer Woo

also testified that he spoke to two other people at the Awanei

Street apartment:

                A:     Other than the caller, I spoke with two males
          who were in the area.
                Q:     In which area were you talking about? When you
          say in the area, could you be more specific?
                . . . .
                Q:     Okay, the record indicate he’s indicating the
          parking lot fronting 84 or 94-832 Awanei Street.
                       Now, you spoke with – so did you speak with
          those males?
                A:     Yes.
                Q:     And could you describe them, give a description
          of each of the two males?
                A:     Only one male stood out in particular that
          night, it was a Micronesian male with a ponytail.
                Q:     You didn’t know his name at the time?
                A:     No, I did not.

(Emphasis added.)    Officer Woo did not describe the other male.

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           After Officer Woo testified that he spoke with “a

Micronesian male with a ponytail,” he continued his testimony by

focusing on the male’s (David’s)9 uncooperative behavior.              When

Officer Woo was asked what he told “that particular Micronesian

male,” the officer testified that David was uncooperative and

repeatedly refused the orders of Officer Woo to leave the scene:

                 A:     The female wanted them to leave. And I just
           related to both males that they didn’t live here, they
           needed to leave. They need to get out of the area. Go
           home or go to another friend’s house or somewhere else
           other than there.
                 Q:     Now, the one with the ponytail, did he leave
           immediately?
                 A:     Not immediately, but he left.
                 Q:     Okay. What do you mean by not immediately?
                 A:     Most times when we tell people they need to
           leave they’ll just turnaround [sic], walk away.

In response to the testimony describing David’s

uncooperative behavior, the defense objected based upon

speculation and improper bolstering.         The court overruled

the objection.     Officer Woo thus continued his response

regarding David’s uncooperative conduct in refusing to

leave the area:

                 A:    Most time people will turnaround [sic] and say,
           okay, we’re leaving and they start to walk away. This
           gentleman stayed in the parking lot and I told him one or
           two more times that he needed to go.
                 . . . .




     9
            Officer Woo described the man as a “Micronesian male with a
ponytail.” The prosecutor had earlier elicited testimony from David that his
hair was tied back in a ponytail on the night of the incident, and that he
was in the parking lot area while the police were at the Awanei Street
apartment.

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                A:    My main concern was the individual with the
          ponytail because I had to tell him more than once to leave.

(Emphasis added.)    The defense again objected, this time

based on Hawaiʻi Rules of Evidence (HRE) Rule 404(b)(1994)10:

                       DEFENSE COUNSEL: I'm going to object, Your
          Honor.   This is 404(b) actually at this point.

Again, the court overruled defense counsel’s objection.

After the objection was overruled, Officer Woo testified

that he had to tell David to leave possibly up to four

times and that David remained uncooperative:

                Q:    Continue on, you had to what?
                A:    Tell him more than once to leave.
                Q:    How many times did you ask him to leave?
                A:    I can’t remember the exact number, maybe about
          two or three or maybe even four, I’m not too sure.
                Q:    So what happened -- the first time you asked
          him to leave, did he walk the direction that you told him
          to the stop sign?
                A:    No, the first time I asked him to leave he was
          in the parking lot area. So then I asked him to leave, he
          didn’t. So then I walked to the parking lot area, got
          closer to the male and then I told him to leave.




     10
          HRE Rule 404 (b) provides:

                (b) Other crimes, wrongs, or acts. 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. In criminal cases, the proponent of
          evidence to be offered under this subsection shall
          provide reasonable notice in advance of trial, or
          during trial if the court excuses pretrial notice on
          good cause shown, of the date, location, and general
          nature of any such evidence it intends to introduce
          at trial.

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                 Q:   So you asked him once and he didn’t move, okay.
          Did he appear to understand what you were telling him? How
          did you tell him?
                 A:   I told him, oh, she doesn’t want you here. You
          guys need to leave. You don’t live here, you guys need to
          leave.
                 Q:   So he doesn’t leave the parking lot area;
          right?
                 A:   No.
                 Q:   So what happens next?
                 A:   So I tell him again, and I’m not too sure at
          that time or another time I had to tell him again, but I
          know I had to tell him more than once. And when he did
          listen, then he walked the path I showed earlier on Awanei.

(Emphasis added.)    On cross-examination, Officer Woo

acknowledged that the report he wrote after the incident did not

contain a description of either of the males, nor did the report

include any reference to either of them refusing to leave.              On

re-direct, Officer Woo testified that, an hour-and-a-half after

he left the initial call, he was called back to the same

residence for a “med assist, a defib-type case.”

          6.    The State’s Closing Argument

          The State’s closing argument repeatedly referenced the

rebuttal testimony of Officer Woo.        The prosecutor sought to

establish that, contrary to David’s testimony, David acted

aggressively by refusing Officer Woo’s instructions to leave

Kikku’s Awanei Street apartment.         The State emphasized that it

was necessary for Officer Woo to ask David to leave the

apartment area several times.       In so doing, the State used

Officer Woo’s testimony to depict David’s uncooperative state of

mind shortly before he stabbed Albert:

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                [T]he defendant goes onto [sic] say, well, the
          police came over, but I don’t talk to them. That’s
          an outright lie. Not only was he spoken to, he was
          told to leave the premises twice by Officer Woo.
          Officer Randall Woo.
                . . . .
                 Now, bear in mind one-and-a-half hours later
          at 1:00 AM Officer Woo is called back to the same
          address, this time somebody is dead. It was a
          different call, a defigrillator [sic] call. But he
          eventually found out this is a homicide. Somebody
          died. And the suspect is . . . the same guy with the
          ponytail.
                And [Officer Woo] goes over, but the thing is
          the officer realizes, you know, what happened at
          11:20 in the evening an hour-and-a-half earlier may
          be important. So I better make a miscellaneous pub
          report of that to document that I did go over to that
          house earlier because I may not remember if this ever
          becomes important.
                [H]e looks at that report he remembers the guy
          with the ponytail. The guy that I had to tell twice
          to leave. Is that the sign of a guy that’s scared as
          he would have told us? That’s the first signs at
          least we have from Officer Woo that we have a person
          who’s not very cooperative, who refuses to leave the
          premises. . . . [Albert] left the premises
          immediately. It was Mr. David that Officer Woo had
          to ask several times to leave.

(Emphasis added.)    Accordingly, the prosecutor directly relied

on Officer Woo’s testimony, which described David’s repeated

refusal to follow the officer’s orders despite being told to

leave the premises “several times,” in order to demonstrate that

David was not “scared as he [] told us,” contradicting David’s

testimony that he acted in self-defense.

          7.    Verdict and Sentencing

          On October 13, 2011, the jury returned its verdict.

As to count I, murder in the second degree, the jury found David

guilty of the lesser included offense of manslaughter.            As to

count II, assault in the second degree, the jury found David
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guilty of the lesser included offense of assault in the third

degree.

          At the sentencing hearing on January 24, 2012, the

State asked the court to impose a twenty-year sentence for the

manslaughter conviction in order to send a message to the

Micronesian community that it is unacceptable to drink alcohol

and engage in violence:

                You know [David] comes from Micronesia, from Chuuk,
          and well, in this case, would provide just punishment for
          the offense.
                But what I wanted to focus on, Your Honor, is does
          this sentence under subsection B2, subsection B, afford
          adequate deterrence to criminal conduct?
                And when I talk about, perhaps, a sentence like this
          could save lives, I’m talking about sending a message to
          the Micronesian community.
                Even more so than just a community, but I say this,
          by no means to be a racist about anything, but in my
          experience, and I believe in the Court’s experience, as
          well as Mr. Aquino’s experience, over the past few years,
          we have had a number of cases that have come in involving
          Chuukese, Micronesian males drinking, not high on drugs,
          like type of cases we’re more used to seeing, high on
          drugs, try to get drugs, commit offenses because of the
          need to get drugs or being high on drugs.
                But we’re talking Micronesians who get inebriated on
          alcohol, then become violent with their own family members,
          their own friends and they involve knives.
                It is the exact same situation that is before the
          Court today, and when you think about a sentence that needs
          to send a message out to the Micronesian community, mainly
          the males, the idea that they can just drink all they want
          and not be responsible for what happens after that, I think
          this would send a strong message to them that that is not
          acceptable in the laws of the United States and the laws of
          the State of Hawaiʻi.
                So we’re talking about affording adequate deterrence
          of criminal conduct by sending a message.

          When delivering the sentence, the court made the

following remarks:



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                I think the root of all evils in this case was,
          obviously, alcohol.
                Those of you who are in the gallery, you seen
          or you - you see the devastating effects that alcohol
          can cause.
                I guess it’s fun and it tastes good when you’re
          drinking it at the time, but the taste of alcohol,
          obviously, doesn’t taste good as you sit there today.
                No one can stop you from drinking alcohol, but
          those of you who are from the Micronesian Islands,
          you come here to start a legacy, and in this legacy,
          you don’t need that legacy tarnished by alcohol,
          because alcohol will leave the legacy of people
          getting killed and people being prosecuted and
          standing before a Court for wrongdoings. That’s not
          what you need.
                But my sentence today is not to send a message
          to you. My message today is to address the specific
          conduct of Mr. David.

          The court sentenced David to twenty years imprisonment

on count I and one year imprisonment on count II, to run

concurrently.

   B.     Intermediate Court of Appeals

          The ICA affirmed David’s conviction, holding that the

court did not abuse its discretion in allowing the State’s

rebuttal witnesses to testify.       However, the ICA vacated David’s

sentence and remanded for resentencing, on the grounds that

comments made by the prosecutor during sentencing were “highly

improper” and that the circuit court judge “did not go far

enough to make its repudiation of the prosecutor’s improper

arguments clear on the record.”       The ICA held that “a

defendant’s race, ethnicity, or national origin cannot be used

as a justification for the imposition of a harsher penalty on



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the defendant.”    The ICA therefore remanded for resentencing

before a new judge.

     C.   Application for Writ of Certiorari

          In his application for certiorari to this court, David

presents two questions:

          I.    Whether the ICA gravely erred in holding that
                the trial court did not abuse its discretion by
                allowing the State to present the testimony of
                two rebuttal witnesses.

          II.   Given the egregious misconduct of the [DPA]
                during the sentencing hearing, whether the ICA
                gravely erred in remanding this case for
                resentencing rather than for a new trial.

                      III.   STANDARDS OF REVIEW

     A.   Admissibility of Rebuttal Testimony

          “With respect to the admissibility of rebuttal

testimony, the standard on appeal is abuse of discretion.             This

court has declared that ‘[t]he introduction of evidence in

rebuttal and in surrebuttal is a matter within the discretion of

the trial court and appellate courts will not interfere absent

abuse thereof.’”    Duncan, 101 Hawaiʻi at 274, 67 P.3d at 773

(2003) (quoting Takayama v. Kaiser Found. Hosp., 82 Hawaiʻi 486,

495, 923 P.2d 903, 912 (1996)).

     B.     Abuse of Discretion

          “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

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litigant.”    State v. Plichta, 116 Hawaiʻi 200, 214, 172 P.3d 512,

526 (2007) (internal quotation marks and citation omitted).

     C.     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.”            State

v. Rogan, 91 Hawaiʻi 405, 412, 984 P.2d 1231, 1238 (1999)

(quoting State v. Sawyer, 88 Hawaiʻi 325, 329 n.6, 966 P.2d 637,

641 n.6 (1998)) (internal quotation marks and citations

omitted).

            “Prosecutorial misconduct warrants a new trial or the

setting aside of a guilty verdict only where the actions of the

prosecutor have caused prejudice to the defendant’s right to a

fair trial.”    State v. McGriff, 76 Hawaiʻi 148, 158, 871 P.2d

782, 792 (1994).    “In order to determine whether the alleged

prosecutorial misconduct reached the level of reversible error,

[the appellate court considers] the nature of the alleged

misconduct, the promptness or lack of a curative instruction,

and the strength or weakness of the evidence against defendant.”

State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992).



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                             IV.    DISCUSSION

    A.      Officer Woo’s Testimony Was Inadmissible on Rebuttal
            and Its Admission Was Not Harmless Error

            David argues the circuit court abused its discretion

by allowing Officer Woo to testify as a rebuttal witness because

the State was required to introduce Officer Woo’s testimony in

its case-in-chief under Duncan.11         According to David, Officer

Woo’s rebuttal testimony that David refused to leave the parking

lot established David’s belligerent state of mind prior to the

stabbing, thus suggesting that David possessed the requisite

criminal intent to commit the murder of Albert and the assault

of Kikku.    Consequently, David maintains that the State was

required to introduce Officer Woo’s testimony in the State’s

case-in-chief, citing Duncan.        See Duncan, 101 Hawaiʻi at 276, 67

P.3d at 775 (“[A] party is bound to give all available evidence

in support of an issue in the first instance it is raised at

trial and will not be permitted to hold back evidence

confirmatory of his or her case and then offer it on

rebuttal.”).    The State maintains it did not expect David to

testify that he did not speak with the police that night, and




     11
            David’s application for writ of certiorari purports to challenge
“two rebuttal witnesses,” but only raises objections to the testimony of
Officer Woo (not the State’s other rebuttal witness, Erick Sam).
Accordingly, we only discuss Officer Woo’s rebuttal testimony.

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therefore Officer Woo’s testimony was offered in rebuttal merely

to contradict David’s testimony.

          The State explained its need for Officer Woo’s

rebuttal testimony during a bench conference.          As its offer of

proof, the State informed the court that Officer Woo responded

to the call at the Awanei Street address and “spoke to both

[Albert] and the defendant, which is contrary to what the

defendant has testified to.”      Defense counsel objected to the

rebuttal testimony based on Duncan, arguing that the State

should have introduced his testimony during its case-in-chief.

The State argued that Officer Woo was being called in rebuttal

because the State “did not know at the time prior to the

defendant testifying [] that he [would say that he] didn’t speak

with the police” and that Officer Woo’s “offer of testimony

would be, that he did speak, he spoke with both [Albert] and the

defendant.”   Defense counsel again objected, arguing that the

State was “aware of this officer, they were aware what the

officer was going to testify to, they had the police report.”

The court overruled the defense’s objections to Officer Woo’s

rebuttal testimony.     After David’s direct testimony, the trial

was recessed for the weekend.

          The State began its cross-examination the following

Monday.   At no time prior to the cross-examination – or prior to

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Officer Woo’s subsequent rebuttal testimony - did the State

disclose to David or the court its intent to also introduce to

the jury through its rebuttal witness David’s uncooperative

refusal to comply with Officer Woo’s order to leave the

apartment area where David later stabbed Albert.           During David’s

cross-examination, the State confirmed with David that he had

not spoken to the police.      The State then called Officer Woo as

a rebuttal witness.

          1.    Officer Woo’s Testimony Identifying David as
                Uncooperative was Inadmissible on Rebuttal

          As it proposed in its offer of proof, the State called

Officer Woo to testify in rebuttal for the ostensible purpose of

impeaching David.     However, rather than limiting the officer’s

testimony to the fact that he did speak to someone matching

David’s description in the Awanei Street parking lot, Officer

Woo presented testimony that went far beyond impeachment

evidence as it instead adduced substantive evidence of David’s

uncooperative behavior preceding his altercation with Albert.

Thus, as David observed in his opening brief to the ICA, under

“the guise of impeaching Defendant’s credibility” the State

presented testimony on rebuttal that went beyond the purpose

represented in its offer of proof.        In so doing, it improperly

bolstered the State’s case that David acted as the first

aggressor in unjustifiably causing the death of Albert.
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          By using this tactic, the State exceeded the scope of

rebuttal testimony permitted by the court, which the court

allowed only for the “limited purpose” of impeaching David’s

testimony that he did not speak to the police.          Initially,

Officer Woo’s rebuttal testimony stayed within the parameters

established by the court.      Officer Woo refuted David’s testimony

that neither David nor Albert spoke to the police on the night

of the incident.    He stated that he arrived at the Awanei Street

apartment at approximately 11:30 p.m. on the evening of January

1, 2011 in response to a “suspicious circumstance” call from a

female at the same address.      Upon arrival, he spoke to the

female who called him.     Subsequently, Officer Woo spoke to two

males in the parking lot; he identified one as “a Micronesian

male with a ponytail.”

          Thereafter, Officer Woo’s testimony far exceeded the

limited scope of rebuttal testimony permitted by the court.             In

addition to contradicting David’s testimony on cross-examination

that he did not talk to the police prior to the incident,

Officer Woo testified that the male with the ponytail was

uncooperative and refused to leave the parking lot after Officer

Woo’s multiple orders.     Officer Woo testified that he told the

two males they needed to leave the area because “the female

wanted them to leave,” but the man with the ponytail did not

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leave immediately, despite repeated orders by Officer Woo.

Officer Woo stressed that, unlike the usually cooperative people

he encounters, David did not cooperate when he told him to leave

the area: “[m]ost times when we tell people they need to leave

they’ll just turnaround [sic], walk away. . . .          This gentleman

stayed in the parking lot and I told him one or two more times

that he needed to go.”     To this testimony, the defense properly

objected on the basis of speculation and improper bolstering.

Officer Woo’s view of how other people would behave in David’s

place constituted speculation as to what other people would do

in David’s situation; his testimony also bolstered his testimony

by comparing David’s behavior to that of most people who would

have cooperated with police instruction.

          With the defense’s first objection overruled, the

State continued offering testimony that exceeded the scope of

testimony permitted by the court.        Officer Woo noted that, after

“the other male” left the area, his “main concern was the

individual with the ponytail because [he] had to tell him more

than once to leave.”     The defense asserted another objection to

the unexpected testimony, citing HRE Rule 404(b).           Defense

counsel established that Officer Woo’s testimony improperly

introduced substantive evidence of prior bad conduct – thereby

exceeding the limited scope of rebuttal testimony.           HRE Rule 404

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proscribes the use of character evidence to prove conduct,

subject to exceptions:

          (a) Character evidence generally. Evidence of a person’s
          character or a trait of a person’s character is not
          admissible for the purpose of proving action in conformity
          therewith on a particular occasion, except:
                (1) Character of accused. Evidence of a pertinent
                trait of character of an accused offered by an
                accused, or by the prosecution to rebut the same;
                (2) Character of victim. Evidence of a pertinent
                trait of character of the victim of the crime offered
                by an accused, or by the prosecution to rebut the
                same, or evidence of a character trait of
                peacefulness of the victim offered by the prosecution
                in a homicide case to rebut evidence that the victim
                was the first aggressor;
                (3) Character of witness. Evidence of the character
                of a witness, as provided in rules 607, 608, 609, and
                609.1.

HRE Rule 404(a).    In criminal cases, the proponent of evidence

of other crimes, wrongs, or acts probative of another fact of

consequence “shall provide reasonable notice in advance of

trial, or during trial if the court excuses pretrial notice on

good cause shown, of the date, location, and general nature of

any such evidence it intends to introduce at trial.”           HRE Rule

404(b).   Here, Officer Woo’s testimony fell within the

proscription of HRE Rule 404(b) because it presented evidence of

David’s bad character:     his multiple refusals to comply with

Officer Woo’s orders to leave the premises.

          Even supposing that the State could show good cause

for not providing reasonable notice of this character evidence

in advance of trial, reasonable notice was required during trial

once it became known to the State.        Although the State provided
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Officer Woo’s police report, the report did not identify David

or Albert, and it only explained that the police spoke with an

undescribed male, saying nothing about the male’s refusal to

comply with Officer Woo’s repeated orders to leave.           Thus, the

State exceeded the scope of rebuttal testimony allowed by the

court and failed to give reasonable notice that substantive

evidence of David’s bad character would be presented in

rebuttal.    Given defense counsel’s timely objections to Officer

Woo’s testimony as it exceeded the limited scope permitted by

the court, the testimony depicting David’s unwillingness to

comply with repeated, direct orders from a uniformed officer was

inadmissible on rebuttal.

            2.    The Erroneous Admission of Officer Woo’s Rebuttal
                  Testimony Was Not Harmless

            The introduction of Officer Woo’s improper rebuttal

testimony over the defense’s objections was not harmless.             In

Duncan, we held that improper testimony impeaching a defendant’s

credibility on rebuttal was not harmless when the defendant’s

credibility was “the linchpin of his defense” because there was

a “reasonable possibility that the erroneous admission of [the

witness’s] testimony contributed to [the defendant’s]

conviction.”     Duncan, 101 Hawaiʻi at 278, 67 P.3d at 777.

            Similarly, David’s demeanor leading up to the

altercation was a “linchpin of his defense.”          It was relevant to
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his claim that he acted in self-defense.         Officer Woo’s

testimony refuted David’s self-defense claim because David’s

uncooperative behavior with Officer Woo tended to show that

David acted as the first aggressor in his altercation with

Albert.   Indeed, in closing argument, the State argued against

David’s contention that he acted in self-defense by citing

Officer Woo’s improper rebuttal testimony to demonstrate that

David was not scared in his altercation with Albert.           The State

stressed that David was “not very cooperative”; and noted that

Officer Woo had to tell David to leave “several times” in

contrast to Albert, who “left the premises immediately.”            After

comparing David’s refusal to cooperate with Albert’s cooperative

behavior, the prosecutor asked the jury “[i]s that the sign of a

guy that’s scared as he would have told us?”          Thus, Officer

Woo’s testimony comparing David’s uncooperative behavior to

Albert’s impliedly cooperative behavior constituted a formidable

confirmation to the jury that David unjustifiably killed Albert.

          Moreover, Officer Woo’s rebuttal testimony identifying

David as uncooperative carried the great persuasive import of an

inherently credible and objective police officer observer.             Its

importance to the State’s case was paramount.          In its case-in-

chief, the State elicited testimony from Kikku seeking to show

that David was drunk and acted aggressively towards Albert on

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the night of the murder.12      Officer Woo’s testimony, specifically

describing his repeated statements to David and David’s refusals

to comply, substantially reinforced Kikku’s direct testimony.

The only witness who testified to seeing the initial altercation

between David and Albert besides David himself was Kikku,

Albert’s aunt.     Officer Woo’s improper rebuttal testimony

provided contradictory evidence to David’s testimony regarding

who was the first aggressor.13       Thus, given that the rebuttal

testimony described David’s uncooperative state of mind prior to

his stabbing of Albert, there is a reasonable possibility that

Officer Woo’s testimony depicting David as repeatedly refusing

to comply with his orders contributed to David’s conviction.                 We

hold that the erroneous admission of Officer Woo’s rebuttal

testimony was not harmless.




     12
            Kikku testified that David had demanded all the beer that Albert
had refused to give to David before leaving Kalihi and going to the Awanei
Street apartment; that David was not invited into the Awanei Street
apartment; and that David appeared to threaten Albert by telling him “no man
can do this to me” in response to receiving a scratch on the nose from an
earlier altercation. The State also elicited testimony from Arlynn Ewen
Moses, who corroborated Kikku’s testimony that David was not invited into the
Awanei Street apartment and that David and Albert had been fighting earlier
in the evening.
     13
             Kikku testified that she saw David hit Albert in the back of the
head, but she did not witness the fatal stabbing.


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    B.     Improper Comments During Sentencing

           Because we rule in favor of David regarding part of

his first question on certiorari, holding that the erroneous

admission of Officer Woo’s rebuttal testimony was not harmless,

we need not resolve his second question:          whether improper

statements by the prosecutor at the sentencing hearing required

a new trial rather than the resentencing ordered by the ICA.

Based on the importance of the second question, however, we

exercise our supervisory powers under HRS § 602-4 (2016)14 to

provide guidance to the trial courts.

           In his opening brief to the ICA, David argued that the

prosecutor’s “racist and sexist remarks” improperly influenced

the circuit court.      The ICA held that the prosecutor’s comments

were “highly improper” and that the circuit court judge “did not

go far enough to make its repudiation of the prosecutor’s

improper arguments clear on the record.”          The ICA therefore

remanded for resentencing before a new judge.

           We concur with the ICA that comments made during the

sentencing hearing15 were improper.        See Rogan, 91 Hawaiʻi at 414-



     14
            HRS § 602-4 provides, “Superintendence of inferior courts. The
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.”
      15
            The prosecutor’s relevant remarks at sentencing, as excerpted in
part II.A.7. above, were as follows:
                                                             (. . . continued)
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15, 984 P.2d at 1240-41 (“[A]rguments by the prosecution

contrived to stimulate racial prejudice . . . threaten[] our

multicultural society and constitutional values. . . . [A]ppeals



(continued. . . )

                  You know [David] comes from Micronesia, from Chuuk,
            and well, in this case, would provide just punishment for
            the offense.

                  But what I wanted to focus on, Your Honor, is does
            this sentence under subsection B2, subsection B, afford
            adequate deterrence to criminal conduct?

                  And when I talk about, perhaps, a sentence like this
            could save lives, I’m talking about sending a message to
            the Micronesian community.

                  Even more so than just a community, but I say this,
            by no means to be a racist about anything, but in my
            experience, and I believe in the Court's experience, as
            well as Mr. Aquino’s experience, over the past few years,
            we have had a number of cases that have come in involving
            Chuukese, Micronesian males drinking, not high on drugs,
            like type of cases we’re more used to seeing, high on
            drugs, try to get drugs, commit offenses because of the
            need to get drugs or being high on drugs.

                  But we’re talking Micronesians who get inebriated on
            alcohol, then become violent with their own family members,
            their own friends and they involve knives.

                  It is the exact same situation that is before the
            Court today, and when you think about a sentence that needs
            to send a message out to the Micronesian community, mainly
            the males, the idea that they can just drink all they want
            and not be responsible for what happens after that, I think
            this would send a strong message to them that that is not
            acceptable in the laws of the United States and the laws of
            the State of Hawaiʻi.

                  So we’re talking about affording adequate deterrence
            of criminal conduct by sending a message.

(Emphases added.)

      In addition, as also excerpted in part II.A.7., above, although the
court stated that its sentence was not to send a message to the Micronesian
community, it referred to the community before imposing sentence.

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to racial prejudice lack the professionalism and decorum

required of attorneys who practice before the bar of the courts

of Hawaiʻi and will not be tolerated.”).        The ICA also correctly

concluded that the circuit court did not meet its burden to

repudiate the improper remarks made by the prosecutor when he

appealed to race in arguing for a sentence that would “send a

message to the Micronesian community.”

                             V.   CONCLUSION

          Based on the foregoing, we vacate the ICA’s judgment

on appeal and the circuit court’s judgment of conviction and

sentence, and remand the case to the circuit court for a new

trial.

Craig W. Jerome                   /s/ Mark E. Recktenwald
for petitioner
                                  /s/ Paula A. Nakayama
James M. Anderson
and Loren J. Thomas               /s/ Sabrina S. McKenna
for respondent
                                  /s/ Richard W. Pollack

                                  /s/ Michael D. Wilson




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