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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    29-MAY-2020
                                                    08:01 AM




                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS
                          OF THE STATE OF HAWAI#I


                  STATE OF HAWAI#I, Plaintiff-Appellee,
                                    v.
                  DONALD P. MCFEE, Defendant-Appellant


          APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
                          (2CPC-XX-XXXXXXX(1))


                        SUMMARY DISPOSITION ORDER
          (By:   Ginoza, Chief Judge, Chan and Wadsworth, JJ.)

             Defendant-Appellant Donald P. McFee (McFee) appeals
from the May 23, 2018 Judgment of Conviction and Sentence entered
by the Circuit Court of the Second Circuit (Circuit Court),1
following a jury trial wherein McFee was found guilty of the
charge of Terroristic Threatening in the First Degree (TT1), in
violation of Hawaii Revised Statutes (HRS) § 707-716 (2014).2



      1
          The Honorable Rhonda I.L. Loo presided.
      2
          § 707-716 provides, in relevant part,
      (1) A person commits the offense of terroristic threatening
in the first degree if the person commits terroristic threatening:
      . . . .

      (e) With the use of a dangerous instrument[.]
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          On appeal, McFee contends that the Circuit Court erred
and abused its discretion in denying McFee's motion for mistrial
based on prosecutorial misconduct, failing to give appropriate
curative instructions, and failing to strike impermissible
introduction of prior bad acts.
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve McFee's points of error, and affirm.
          On appeal, we "evaluate[] claims of improper statements
by prosecutors by first determining whether the statements are
improper, and then determining whether the misconduct is
harmless." State v. Tuua, 125 Hawai#i 10, 14, 250 P.3d 273, 277
(2011) (citations omitted). If a prosecutor makes improper
statements, we consider "the following criteria in assessing
whether a prosecutor's improper comments are harmless: (1) the
nature of the conduct; (2) the promptness of a curative
instruction; and (3) the strength or weakness of the evidence
against the defendant." Id. at 15-16, 250 P.3d at 278-79
(internal quotation marks omitted). The harmless beyond a
reasonable doubt standard "requires an examination of the record
and a determination of whether there is a reasonable possibility
that the error complained of might have contributed to the
conviction." State v. Rogan, 91 Hawai#i 405, 412, 984 P.2d 1231,
1238 (1999) (internal quotation marks and citations omitted).
          Here, the Deputy Prosecuting Attorney (DPA) improperly
made a comment about a tattoo on McFee's chest during opening
statements, which constituted prosecutorial misconduct. However,
based on the record in this case which includes a timely curative
instruction striking the DPA's improper comment and the strong
evidence against McFee, we conclude the DPA's improper statement
was harmless.




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          An Indictment filed on May 23, 2017, charged McFee with
TT1 as follows:
          That on or about the 15th day of May, 2017, . . .
          [McFee], with the intent to terrorize, or in reckless
          disregard of the risk of terrorizing Deborah Waltrip
          (Waltrip), did threaten, by conduct, to cause bodily
          injury to Deborah Waltrip, with the use of a dangerous
          instrument, to wit, a large hunting knife[.]
Prior to jury trial, the Circuit Court heard the State and
McFee's motions in limine. McFee sought specific exclusion of,
inter alia, "[a]ny evidence relating to tatoos [sic] on the
Defendant's body[.]" No party objected to the other's in limine
requests and the court granted both parties' motions.
          On January 9, 2018, the first day of trial, the State
began its opening statement as follows:
                This case is about a former tenant and a knife.
          On May 15th, 2017, Deborah Waltrip was watching
          television at her house. . . . She was watching
          television with her other tenant, Brandon Telles.

                About 7:30 p.m., Deborah heard some loud yelling
          and screaming near the front part of her residence.
          She lives on the second floor so she had to come down
          the stairs. She wanted to check to see what was going
          on, who was doing the yelling and why was that person
          yelling.
                So she approaches the front part of her house.
          There's a gate there -- her entire house or property
          is fenced in, and you'll see photographs of the fence.
          It's just a wire fence but there's a big gate -- and
          as she approaches the gate, she hears this person
          yelling. She hears this person screaming. She can't
          quite make out who it is until she gets a little bit
          closer. As soon as she gets closer, she sees that
          it's her former tenant Donald McFee, the defendant
          right here.
                She recognizes him and she also sees distinctive
          tattoos on the front of his chest. She recognizes the
          tattoo. It says, "Fuck the police" right on his
          chest, so she knows it's Donald McFee.

                Now, a few months earlier, Deborah had to tell
          Donald to please leave the residence because he was
          doing some damage to a room that he was renting in her
          house so she asked him to leave, and that happened in
          March of 2017, so about two months earlier.

                She sees the defendant. She tells him, you're
          not welcome here. Leave. You are not welcome.
          Defendant has a knife on his waist.
(Emphases added.)


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          McFee requested a bench conference and moved for a
mistrial due to the DPA mentioning McFee's tattoo:
                [Counsel for McFee]: According to the motion in
          limine is to -- I thought I had a motion in limine
          precluding the State from mentioning any tattoos.
                [DPA]: I don't remember that, Judge, because he
          brought up the tattoos on his voir dire.

                [Counsel for McFee]: Yeah, but that's not
          coming into evidence. My statements are not in
          evidence.
                THE COURT: Any evidence related to tattoos on
          the defendant's body.
               [Counsel for McFee]:       I move for a mistrial.
               [DPA]:   I don't remember seeing that, Judge.

                THE COURT: I'll ask the jury to disregard and
          have that comment stricken.

                [Counsel for McFee]: I submit that they cannot
          disregard, "Fuck the police." That's the -- that is
          in --

                THE COURT: I'll tell the jury to disregard and
          have the matter stricken from the record.

Immediately thereafter, the Circuit Court instructed the jury to
"disregard the remark made by [the DPA] regarding the tattoos on
the defendant's chest and the wording. It will be so stricken
from the record."
          Later, during the evidentiary portion of trial, McFee
revisited his motion for mistrial, emphasizing, for the record,
that he was prejudiced at the outset when the DPA mentioned the
"Fuck the police" tattoo in the opening statement, while in voir
dire McFee did his best to be vague about the nature of McFee's
tattoos, which also covered his face and neck. In addition,
McFee asserted that the trial court's curative instruction was
insufficient to remove the prejudice caused by the DPA's
misconduct.
          Regarding the first factor in assessing whether the
DPA's misconduct was harmless, it was clearly improper for the
DPA to comment on McFee's "Fuck the police" tattoo during his
opening statement in light of the Circuit Court's ruling to
preclude any evidence regarding McFee's tattoos. Even though

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McFee's counsel had mentioned tattoos in voir dire, those
comments related to McFee's visible tattoos on his face. We do
note that the prosecutor's comment was an isolated statement in
the State's opening argument; it was not presented as evidence,
and the jury was instructed that "[s]tatements or arguments made
by lawyers are not evidence." The jury was also instructed they
are not "to decide whether Mr. McFee is a good person or a bad
person[,]" and this case does not involve conduct by McFee
against a police officer. However, opening statement "provides
an opportunity for counsel to advise and outline for the jury the
facts and questions in the matter before them." State v.
Simpson, 64 Haw. 363, 369, 641 P.2d 320, 324 (1982). The DPA
should not have made comment on McFee's chest tattoo given that
no evidence about the tattoo would be admissible and given the
content of the tattoo. Thus, the first factor -- the nature of
the alleged prosecutorial misconduct -- weighs in favor of McFee.
          As to the second factor, after McFee's objection during
the bench conference, the Circuit Court promptly gave an
instruction to the jury to "disregard the remark made by [the
DPA] regarding the tattoos on the defendant's chest and the
wording" and ordered the remark to be stricken. No further
reference to the particular tattoo or any others was made. The
court's immediate instruction dissipated the risk of prejudice to
McFee because a jury is presumed to follow the instructions it is
given by the court. State v. Acker, 133 Hawai#i 253, 278, 327
P.3d 931, 956 (2014) (citing State v. Knight, 80 Hawai#i 318,
327, 909 P.2d 1133, 1142 (1996) ("[A]s a rule, juries are
presumed to . . . follow all of the trial court's
instructions.")). Accordingly, the second factor, the promptness
or lack of a curative instruction, weighs against McFee.
          Regarding the third factor, the evidence elicited at
trial strongly supported the jury's guilty verdict on the charge
of TT1. Waltrip testified she was McFee's former landlord and




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had given McFee forty-five days' notice in March 2017 to leave
her property. On the night in question, Waltrip went downstairs
in her residence to investigate a commotion outside and noticed a
person crouched between a trailer and Waltrip's SUV near the gate
of a hog-wire fence that surrounded her property. When Waltrip
recognized that the person was McFee, she became fearful and
repeatedly asked him to leave. McFee yelled and swore at Waltrip
from the other side of the fence. Waltrip then made a
non-emergency call to the police. Initially, she did not see
McFee carrying a weapon but later, from about three feet away as
Waltrip was on the phone with the police, McFee brandished a
large knife for about five seconds, yelling and swearing in a
loud and threatening tone, causing Waltrip to feel threatened.
He then put the knife back into the holder in his belt and walked
down the street towards the garage. McFee then walked back
towards Waltrip by her gate and waived the knife in a threatening
manner at her from two to three feet away for about ten to
fifteen seconds. During this time, McFee was yelling profanities
in a threatening tone at Waltrip. Waltrip was about a foot
behind her gate but backed up because she was scared. Waltrip
was terrified. All the while, Waltrip repeatedly stated, "You
need to leave now." The police finally arrived and arrested
McFee.
          Walter Gouveia (Gouveia), a tenant who resides in the
garage on Waltrip's property, testified that earlier on the day
of the incident, he had run into McFee at the laundromat, and
McFee had asked Gouveia if McFee could stop by. Gouveia advised
McFee he was not allowed to visit the property. About
twenty-five minutes after Gouveia returned home, McFee came to
Gouveia's residence and Gouveia again reminded McFee that he did
not belong there, after which McFee walked away towards Waltrip's
residence. Gouveia followed McFee and saw him brandish a knife
about one foot in front of Waltrip in a sideways slashing type




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motion, while chanting "in Hawaiian all kinds of different
stuff." McFee stopped waving the knife when the police arrived.
          Maui Police Officer Cody Saludez (Officer Saludez)
testified that he responded to a disorderly type case at
Waltrip's property. When he arrived, he observed McFee standing
alongside the roadway, with a large hunting knife at his left
hip. Officer Saludez recovered the knife from McFee as evidence
and measured the knife blade to be eight inches long and the
handle about four to five inches long.
           McFee did not testify and did not call any witnesses in
his defense.
           Given the record, the third factor, the strength or
weakness of the evidence against defendant, weighs strongly
against McFee. After evaluating the three factors as to whether
the DPA's tattoo comment was harmless, and considering the record
as a whole, we conclude there is no reasonable possibility that
the error complained of might have contributed to McFee's
conviction.
           As for McFee's argument that the Circuit Court failed
to strike impermissible introduction of prior bad acts, McFee's
point of error and arguments are less than clear as to the prior
bad acts he alleges were improperly raised. We infer that McFee
is referencing the DPA's comments in his opening statement that,
prior to the incident in this case, Waltrip had asked McFee to
leave her residence because he "was doing some damage to a room
that he was renting in her house." McFee made no objection to
this comment at trial. In an analogous circumstance, the Hawai#i
Supreme Court noted that "[w]here a defendant fails to object to
a prosecutor's statement during closing argument, appellate
review is limited to a determination of whether the prosecutor's
alleged misconduct amounted to plain error." State v. Iuli, 101
Hawai#i 196, 204, 65 P.3d 143, 151 (2003).
          The appellate court will apply the plain error standard of
          review to correct errors which seriously affect the
          fairness, integrity, or public reputation of judicial
          proceedings, to serve the ends of justice, and to prevent
          the denial of fundamental rights. An appellate court's


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          power to deal with plain error is one to be exercised
          sparingly and with caution because the plain error rule
          represents a departure from a presupposition of the
          adversary system—that a party must look to his or her
          counsel for protection and bear the cost of counsel's
          mistakes.

State v. Metcalfe, 129 Hawai#i 206, 222, 297 P.3d 1062, 1078
(2013) (quotation marks and citations omitted). Given the
circumstances in this case, we conclude there was no plain error.
          Therefore, IT IS HEREBY ORDERED that the Circuit Court
of the Second Circuit's May 23, 2018 Judgment of Conviction and
Sentence is affirmed.
          DATED: Honolulu, Hawai#i, May 29, 2020.

On the briefs:                          /s/ Lisa M. Ginoza
                                        Chief Judge
John F. Parker,
for Defendant-Appellant.                /s/ Derrick H.M. Chan
                                        Associate Judge
Peter A. Hanao,
Deputy Prosecuting Attorney             /s/ Clyde J. Wadsworth
for Plaintiff-Appellee.                 Associate Judge




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