*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***




                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         30-JUN-2020
                                                         06:09 PM



            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o--
________________________________________________________________

                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                 vs.

                          SEAN CONROY,
                Petitioner/Defendant-Appellant.
________________________________________________________________

                           SCWC-XX-XXXXXXX

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 11-1-0355(4))

                            JUNE 30, 2020

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
           DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                 OPINION OF THE COURT BY WILSON, J.

            Petitioner/Defendant-Appellant Sean Conroy (“Conroy”)

was convicted following a jury trial of assault in the second

degree.    The prosecutor made at least eight improper statements

during closing argument in violation of Conroy's right to a fair

trial.    The misconduct affected the issue central to Conroy’s

self-defense claim:    whether he acted with the intent to protect
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


himself.   The only witnesses to the incident at the time of the

injury were Conroy and his wife (hereinafter CW).            Therefore,

in the circumstances of this case, the violation of Conroy’s due

process right to a fair trial was not harmless beyond a

reasonable doubt.

                          I. Factual Background

A.   Circuit Court Proceedings

           Conroy was indicted for assault in the first degree in

violation of HRS § 707-710(1) (1993), in connection with an

incident involving CW.1      At trial, CW testified that she was

married to Conroy on the date of the incident and that they were

living together in an apartment in Kīhei, Maui.2            According to

CW, on March 14, 2011, she and Conroy had an argument in their

apartment parking lot; they were struggling over her Camaro car

keys when Conroy punched her in the face with both of his fists,

and CW lost consciousness.       CW testified that she could not

recall the number of times she was struck because she lost

consciousness.    CW also testified that she did not recall

hitting Conroy prior to Conroy’s first punch, and that she did

not kick Conroy prior to being punched.         CW further stated that


      1
            HRS § 707-710(1) (1993) provides: “A person commits the offense
of assault in the first degree if the person intentionally or knowingly
causes serious bodily injury to another person.”
      2
           The Honorable Richard T. Bissen, Jr. presided.




                                     2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


on the day of the incident she was 5'9" and weighed 120 pounds,

and that Conroy was 6'4" or 6'5" and weighed 240 or 250 pounds.

          When CW was asked if she told a police officer that

she slapped Conroy once on his left temple, CW stated, “I guess.

I guess that’s what I told him.”       The State entered into

evidence a photo of CW six months before the incident, and a

photo of CW taken in April 2011 after the incident.       CW

testified that the two photos demonstrated that her smile was

different as a result of the incident, and that she can “only

smile with half [of her] face [because of] the injuries.”       CW

also stated that she has had nightmares about the incident,

which have clouded “[her] memories of the exact things that

happened on [the day of the incident].”

          Dr. Andrew Don (“Dr. Don”), who supervised CW’s

follow-up treatment, testified that eight days after the

incident, CW’s left cheek and nose were swollen, her eyes were

swollen and possibly bloodshot, and that she had a “chip

fractured on the front of her teeth.”      He further testified that

CW’s nose was fractured on both sides, and that her cheekbone

was also fractured and bruised on the left side.      Dr. Don also

testified that because of CW’s swelling, a large blood clot was

coagulating on that side of her face, causing scarring and

restricting the movement of her face.       According to Dr. Don,

CW’s condition could be permanent, and surgery would not make


                                   3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


any difference.    He also stated that CW’s injuries were caused

by at least two “full–force [blows] from the fist.”

           Officer William Melton (“Officer Melton”), who

responded to the incident, testified that CW appeared to be

dazed, and had a swollen face, swollen eyes, some blood to the

left side of her eye, and some cuts on her body.          Officer Melton

stated that Conroy waived his right to remain silent, and

recounted Conroy’s statement as follows:

           Basically, [Conroy] stated that he suspected his
           girlfriend, [CW], was fooling around. [Conroy] saw
           some things in the car that she wanted to drive off
           in. And further, [Conroy] believed that [CW] was
           going to be with another man, and they fought over a
           set of keys to the Camaro that [CW] wanted to use.
           [Conroy] got struck to the left side of his temple he
           said, and then he responded by punching [CW] twice to
           the face.

           Officer Melton also testified that Conroy told him

that when he punched CW twice in the face, she was knocked

backwards onto the hood of the Camaro.         Officer Melton stated

that Conroy indicated that he had injuries to the left side of

his temple where he had been struck, and that there was a “red

linear marking, kind of purplish on the left side of [Conroy’s]

temple.”   According to Officer Melton, Conroy did not complain

of any other injuries, such as being kicked in the groin.

Officer Melton further testified that if Conroy told him that he

had been kicked in the groin, then he would have indicated it in

his report because “[a]nytime a guy gets kicked in the groin,

that’s an attention grabber.”


                                     4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


            Jon Brammer (“Brammer”), CW’s and Conroy’s neighbor,

testified that immediately after the incident, CW looked like

she “had hit her head on the steering wheel” in an auto

accident.    Brammer testified that at that time, CW was arguing

and swearing at Conroy, and Conroy was verbally defending

himself.    Brammer testified that CW said, “You hit me,” and

Conroy replied, “Well, you hit me.”    Brammer also testified that

Conroy stated that “[CW] asked for it[,]” and that he heard

Conroy say to CW, “[Y]ou know you had it coming,” and “[D]on’t

tell me you didn’t deserve it.”    The State then rested its case.

            The defense then presented its case, and recalled

Brammer, who testified about a 2010 incident that occurred at

his home, where CW was allegedly drunk and lying down on the

floor.   According to Brammer, CW did not want to be moved, and

when Conroy attempted to pick CW up, she “thrashed out” and

kicked Conroy’s hand twice.

            Conroy testified on his own behalf at trial.    At the

beginning of Conroy’s testimony, he was asked about a previous

incident in 2009 involving an argument with CW.      He testified

that CW hit him on the side of his head at least three times

with a television remote control, knocking out his tooth.

            Conroy testified that on the day of the incident, the

nature of his relationship with CW was “more of a roommate




                                  5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


situation,” and that CW “did her own thing and was in her own

room, [and] chose not to do anything with [him] in any sense.”

           CW asked him to move his truck and when he approached

his truck, he saw his personal items in the back seat of the

Camaro.   Conroy thought that CW “was trying to rub something in

[his] face, that she could do what she liked with whatever.”         He

began to take his personal items from the Camaro and put them on

the hood of his truck and in the empty adjacent parking stall.

In response, CW retrieved the items and put them back into the

Camaro.   CW then yelled at him, accusing him of acting childish.

In response, Conroy told CW, “I’m done being disrespected. . . .

I’m done. . . .    I just -- I want you to leave.    I want you to

leave.    Just please give me the keys.”

           He asked CW to give him the keys to the truck, house,

mailbox, and Camaro because he owned them all.3      CW swore at him,

and taunted him by asking, “These keys?” and “yanked” the keys

back when he attempted to take them.       He asked CW to give him

the keys several more times, and CW then kicked him in the

groin, causing him to bend over.       Immediately after he was

kicked, CW hit him on his head on the left side of his temple.

He then punched CW twice in the face, causing her to fall back

on the Camaro.    When he tried to help CW onto her feet, she was
     3
           CW had testified that the Camaro was jointly owned by
Conroy and herself.




                                   6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


dazed and fell to the ground, and he testified that he was

“scared,” “shaken,” and thought, “oh my God, I’ve got to get

help.”

          When Officer Melton arrived at the scene, Conroy

started to explain that CW was his wife, and then explained that

he guessed that CW was “more of a friend now.”      He informed

Officer Melton that he had injuries to his head and groin.        On

cross-examination, Conroy also testified that he re-broke the

metacarpal bone of his little finger when he punched CW.

          On rebuttal, CW testified that approximately a year

before the incident in the instant case, Conroy accused her of

having a “man’s name in [her] contact list” in her phone, and an

argument ensued.   According to CW, Conroy punched her in the

side of the face or head with a fist, and “grabbed [her] by the

throat and neck and began to squeeze,” making it difficult for

CW to breathe.

          In the State’s closing argument, the prosecutor sought

to persuade the jury that Conroy’s intent was not to defend

himself but to manifest his anger and jealousy by making “sure

that she didn’t give that smile to any other man[.]”      The

prosecutor’s argument was objected to by Conroy’s counsel three

times, however the court sustained only one objection and did




                                  7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


not strike the improper comment, allowing the two other

statements over the defense’s objections:4

                [PROSECUTOR:] Their marriage was going down.
          [CW] no longer gave the Defendant nature’s smile, so
          he was going to make sure that she didn’t give that
          smile to any other man, and she won’t. She can’t.
                He was going to teach her a lesson, a lesson
          that she would never, could never forget, a lesson
          she would remember every time she looked in a mirror.
          Look at [CW’s] eyes. What do you see in those eyes?
          Resignation, defeat, a woman that’s learned her
          lesson. We should teach her a new lesson. I say we
          teach her that there is justice in the world. I say
          we teach her that there can be justice in this –-

          [DEFENSE COUNSEL]: Your Honor, I would just object.
          Passion, prejudice.

          THE COURT:   Sustained, counsel.

                . . . .

          [PROSECUTOR]: Whatever we do here, we’re not going
          to put nature’s smile back on [CW’s] face, but you
          can put the smile back in her eyes. What is justice
          in this case? It’s finding the Defendant guilty of
          the crime that he committed. Holding him accountable
          for the full extent of what he did. As a community,
          you come together to formally agree on what he did to
          make a judgment on his actions. The actions he took
          on March 14, 2011 and what he did on March 14, 2011
          was assault in the first degree.

                . . . .

                So, therefore, what I began in this -- at this
          portion, what is justice? Justice is going to be
          returning a verdict where that box is checked where
          as to assault in the first degree, you’ll find him
          guilty as charged.

                Consider that, you know, when Defendant broke
          [CW’s] face, when you look at the way she testified,
          consider her demeanor, the pictures of her after the
          scene. He broke something inside of her as well.

          [DEFENSE COUNSEL]:   Your Honor, objection.   Passion,
          prejudice.

     4
           The prosecutor’s statements that are at issue on appeal are
underlined.




                                     8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



           THE COURT:   I’ll allow this.

           [PROSECUTOR]: We all want [CW’s] spirit to heal even
           if her face won’t. But in order for that to happen,
           there has to be justice done.

           [DEFENSE COUNSEL]:   Your Honor, same objection.

           THE COURT:   So noted, Counsel.

           [PROSECUTOR]: Give [CW] the justice that she needs.
           Give her the justice she deserves. Most importantly,
           give the Defendant the justice that he deserves.
           Find him guilty of assault in the first degree. Now,
           there’s going to be -- I would leave with you I think
           we should be curious about whether the Defendant can
           explain two things.
                 One, how does a man who has been kicked
           directly on his right testicle bent over in
           excruciating pain deliver two power punches strong
           enough to break [CW’s] left cheek, shatter her nose
           and send her 120-pound body flying onto the hood of
           the Camaro? Explain that. Explain also why there
           were no tears on the Defendant’s face when he was
           testifying.

           In Conroy’s closing argument, defense counsel argued

that CW kicked Conroy in the groin, and then as he bent over, CW

punched him in his temple.       In response to CW’s kick, Conroy

threw two unaimed punches that were not planned, or conducted in

retaliation, and were instead for self-defense and to get away

from CW.   When Conroy realized where he had hit CW, he was

scared and tried to help her.        Defense counsel told the jury

that CW was not a credible witness, and that Conroy, even though

“he had no duty to testify,” told the truth and was credible.

           In the State’s rebuttal argument, the prosecutor again

asked the jury to find that Conroy’s intent was to hurt CW, not

to defend himself.      Defense counsel objected three times; the



                                      9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


court sustained two objections and instructed the jury to

disregard the improper statements twice:

          [PROSECUTOR]: You break my heart, I break your face.
          That’s what this case is about.

          [DEFENSE COUNSEL]: Your Honor, I would just object.
          Passion and prejudice.

          THE COURT:   All right.   Sustained.

          [DEFENSE COUNSEL]:   Move to strike.

          THE COURT: So ordered. The jury will disregard.    The
          Court will order that last statement struck.

                . . . .

                Now, as far as the defense counsel’s statement
          that Defendant’s testimony was the more credible one,
          why then were there no tears on his face? When he
          was feigning his emotion about, you know, this
          situation and trying to get his keys and frustration
          and then feeling sorry for her after he had hit her.
          And he’s making this crying face. Why were there no
          tears? That has not been explained.

                The statement itself, you’ll behold as far as
          credibility, you can consider the probability or
          improbability of a person’s statement. You know,
          when -- in direct examination of the Defendant,
          defense counsel tried to say in asking him, okay, you
          were kicked on the right side or it was off to the
          side, but in cross-examination, he made it pretty
          clear, that, no, it was a hit to my right testicle.
          If it was a kick to his right testicle and he was
          bent over in excruciating pain, he would not have
          been able to hit anybody.

                I think that’s part of, certainly for the guys
          here --

          [DEFENSE COUNSEL]:   Your Honor, I would just object,
          improper opinion.

          THE COURT:   Sustained.

          [DEFENSE COUNSEL]:   Move to strike.

          THE COURT: Stricken. The jury will disregard the
          last remark made by the attorney.




                                     10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


            The jury found Conroy guilty of assault in the second

degree under HRS § 707-711 (Supp. 2010),5 which was the lesser

included offense of assault in the first degree for which Conroy

was indicted.     On May 2, 2012, the circuit court entered its

Judgment of Conviction and Probation Sentence, sentencing Conroy

to sixty days of imprisonment and five years of probation, with

credit for time served.       The court stayed the jail sentence

pending appeal.

B.   ICA Proceedings

            Conroy appealed to the ICA, arguing that many of the

statements the prosecutor made during closing argument and

rebuttal closing argument constituted misconduct.               Conroy

broadly contended that the prosecutor’s statements contained a

“stream of characterizations offered to raise and inflame the

passions of the jury,” which were not based on evidence adduced

at trial, and that the prosecutor repeatedly used “I” to insert

personal opinion, misstated evidence, and that the error was not

harmless.    Accordingly, Conroy argued that his conviction should

     5
            HRS § 707-711(1)(a)-(b) (Supp. 2010) provides in pertinent part:

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

                  (a) The person intentionally, knowingly, or
            recklessly causes substantial bodily injury to
            another; [or]

                  (b) The person recklessly causes . . . substantial bodily
            injury to another[.]




                                     11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


be reversed, or in the alternative, vacated and remanded for a

new trial.

          The State argued that the prosecutor’s statements did

not constitute misconduct because they properly urged the jury

to hold Conroy responsible for his actions and were reasonable

inferences drawn from the evidence.    The State further argued

that even assuming the alleged improper statements constituted

misconduct, they were harmless.

          In a summary disposition order, the ICA determined

that only one of the prosecutor’s statements constituted

misconduct:   “You break my heart, I break your face.     That’s

what this case is about.”    State v. Conroy, No. CAAP-XX-XXXXXXX,

2016 WL 3524605, at *15 (App. June 27, 2016)(SDO).      However, the

ICA concluded that any related error was harmless.      Id.   Thus,

the ICA affirmed the circuit court’s Judgment of Conviction and

Probation Sentence.   Id.   The ICA filed its Judgment on Appeal

on July 22, 2016.

                      II.   Standard of Review

          “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)


                                  12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


(internal quotation marks and citations omitted)(quoting State

v. Sawyer, 88 Hawaiʻi 325, 329 n.6, 966 P.2d 637, 641 f.6

(1998)).

           “Prosecutorial misconduct warrants a new trial or the

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

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

fair trial.”   State v. McGriff, 76 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).

                          III.   Discussion

A.   At Least Eight of the Prosecutor’s Statements During
     Closing Argument and Rebuttal Were Improper.

           “The term ‘prosecutorial misconduct’ is a legal term

of art that refers to any improper action committed by a

prosecutor, however harmless or unintentional.”      State v. Udo,

145 Hawai‘i 519, 534, 454 P.3d 460, 475 (2019).     Allegations of

prosecutorial misconduct are first reviewed to determine whether

the prosecutor’s actions were improper, and violated the accused




                                  13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


citizen’s right to a fair trial.6         If so, the court must then

determine whether the violation of the right to a fair trial was

harmless.    State v. Tuua, 125 Hawaiʻi 10, 14, 250 P.3d 273, 277

(2011).

            Having reviewed the proceedings of the trial afforded

Defendant Conroy, it is apparent the prosecutor committed

misconduct at least eight times in violation of Conroy’s right

to a fair trial — specifically during closing argument.7

            First, the prosecutor asserted that Conroy “was going

to make sure that [CW] didn’t give that smile to any other man,

and she won’t.     She can’t.”

            Second, the prosecutor told the jury “we should teach

her a new lesson.     I say we teach her that there is justice in

the world.     I say we teach her that there can be justice in

this. . . .”

            Third, the prosecutor told the jury they were to find

Conroy guilty to “put the smile back in her eyes.”

            Fourth, the prosecutor asked the jury to consider that

Conroy “broke something inside of [CW.]”


     6
            See State v. McGhee, 140 Hawaiʻi 113, 123 f.10, 398 P.3d 702, 712
n.10 (2017) (“The district court in this case plainly erred when it allowed
the prosecutor to read in closing argument Kearney’s 252 Statement, which was
not in evidence. This error affected McGhee’s substantial rights because it
severely compromised McGhee’s right to a fair trial.”).
     7
            The Dissent agrees that all eight statements were improper.
Dissent at 2.




                                     14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


          Fifth, the prosecutor noted the jury’s purpose was to

heal CW’s spirit:    “We all want [CW’s] spirit to heal even if

her face won’t.     But in order for that to happen, there has to

be justice done.”

          Sixth, the prosecutor repeated his admonition to the

jury — previously ruled improper by the trial court - that its

purpose was to provide justice to CW in order to heal her:       “We

all want [CW’s] spirit to heal even if her face won’t.      But in

order for that to happen, there has to be justice done.”

          Seventh, the prosecutor asserted that “You break my

heart, I break your face.     That’s what this case is about.”

          And eighth, the prosecutor injected personal knowledge

about the pain caused by a kick to the groin.

    1. FIRST STATEMENT

          The statement that Conroy “was going to make sure that

[CW] didn’t give that smile to any other man, and she won’t.

She can’t[,]” improperly encouraged jurors to sympathize with

CW, and to consider the effects of CW’s injuries on her future

relationships and quality of life.     Rogan, 91 Hawaiʻi at 414, 984

P.2d at 1240 (“the statement that the incident was ‘every

mother's nightmare,’ . . . was a blatantly improper plea to

evoke sympathy for the Complainant's mother and represented an




                                  15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


implied invitation to the jury to put themselves in her

position”).8

     2. SECOND STATEMENT

           The prosecutor next improperly informed the jury that

its purpose was to provide justice to CW:

           [Conroy] was going to teach [CW] a lesson, a lesson
           that she would never, could never forget, a lesson
           she would remember every time she looked in a mirror.
           Look at [CW’s] eyes. What do you see in those eyes?
           Resignation, defeat, a woman that’s learned her
           lesson. We should teach her a new lesson. I say we
           teach her that there is justice in the world. I say
           we teach her that there can be justice in this--.

(Emphasis added).

           The trial court sustained Conroy’s objection on the

grounds that it inflamed the passions and prejudice of the jury,

that it was not based on evidence, and that the prosecutor

improperly inserted personal opinion by using the terms, “I” and

“we.”

           The prosecutor’s statement was clearly improper.             In

State v. Apilando, this court held that it was improper for the

prosecutor to request that the jury “send a message to the

community that [the defendant’s] actions were wrong and would

not be tolerated.”      79 Hawaiʻi 128, 141-43, 900 P.2d 135, 148-50

(1995).   This court reasoned that as a result of this “send a

      8
         The Dissent parses Rogan to diminish the importance of prosecutorial
misconduct deemed “blatantly improper” by this court in Rogan: namely, an
appeal to the sympathy of the jury to place themselves in the position of the
mother of the complaining witness who alleged sexual assault. Dissent at 5.




                                     16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


message” statement, “there [was] a significant risk that the

jury might find the defendant guilty simply based on its view

that the conduct the defendant [was] accused of committing [was]

intolerable, even though it ha[d] not been proved beyond a

reasonable doubt.”   Id. at 142-43, 900 P.2d 149-50.

          Here, the statement encouraged the jury to teach CW

that justice exists, which could have “divert[ed] the jury from

its duty to decide the case on the evidence.”     Id. at 149, 900

P.2d at 142 (citations and internal quotation marks omitted);

see State v. Mars, 116 Hawaiʻi 125, 143, 170 P.3d 861, 879 (App.

2007)(finding that the prosecutor’s comment that “[t]his

community is measured by how we treat its weakest members” was

improper because it “appeared to invite the jury to base its

verdict on considerations other than the evidence in the case”);

United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir.

2005)(“A prosecutor may not urge jurors to convict a criminal

defendant in order to protect community values, preserve civil

order, or deter future lawbreaking.    The evil lurking in such

prosecutorial appeals is that the defendant will be convicted

for reasons wholly irrelevant to his own guilt or innocence.”)

(quoting United States v. Koon, 34 F.3d 1416, 1443 (9th Cir.

1994)).




                                 17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


          The prosecutor also improperly sought to add the

imprimatur of his office by asking the jury to join him to teach

CW a lesson and provide justice to CW:        “We should teach [CW] a

new lesson.    I say we teach [CW] that there is justice in the

world. . . .   Whatever we do here, we’re not going to put

nature’s smile back on [CW’s] face.”       (Emphasis added).       The

prosecutor’s use of the inclusive pronoun, “we,” implied that

the jury and the State had similar interests and were working

together in convicting Conroy to provide CW justice.          This

implication of unity, and the suggestion of an alliance between

the State and the jury against Conroy, was improper:

          In light of the “prestige associated with the
          prosecutor’s office” and the “significant persuasive
          force” the prosecutor’s argument is likely to have on
          the jury, this court has repeatedly recognized that
          the prosecutor “has a duty to seek justice, to
          exercise the highest good faith in the interest of
          the public and to avoid even the appearance of unfair
          advantage over the accused.”

State v. Basham, 132 Hawaiʻi 97, 116, 319 P.3d 1105, 1124 (2014).

     3. THIRD STATEMENT

          The prosecutor then continued his improper request to

the jury by advising them to find Conroy guilty in order to put

a smile in CW’s eyes:    “Whatever we do here, we’re not going to

put nature’s smile back on [CW]’s face, but you can put the

smile back in her eyes.     What is justice in this case?         It’s

finding the Defendant guilty of the crime that he committed.”

The implication to the jury was that a just verdict is one of



                                   18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


guilt that would allow CW to smile again.     Again the jury was

diverted from their duty to decide the case based on the

evidence in order to consider a verdict that would make the CW

smile.   See e.g., State v. Klinge, 92 Hawai‘i 577, 592, 994 P.2d

509, 524 (2000)(“the prosecutor's remark could have ‘divert[ed]

the jury from its duty to decide the case on the evidence, by

injecting issues broader than the guilt or innocence of the

accused under the controlling law.’”).

    4. FOURTH STATEMENT

           The improper appeal to the jury to make a decision to

demonstrate to CW sympathy for her injuries was compounded by

subsequent statements from the prosecutor:     “Consider that, you

know, when [Conroy] broke [CW’s] face, when you look at the way

she testified, consider her demeanor, pictures of her after the

scene.   [Conroy] broke something inside of her as well.”     Conroy

objected to these statements on the basis of “passion,

prejudice”.    The court overruled the objection, stating, “I’ll

allow this.”

           The prosecutor’s statements improperly appealed to the

passions of the jury, encouraging jurors to make a decision

based on their sympathies towards CW and to consider any

emotional injuries that she suffered.     Rogan, 91 Hawai‘i at 414,

984 P.2d at 1240.




                                 19
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


     5. FIFTH AND SIXTH STATEMENTS

          Next, the prosecutor again improperly sought to

persuade the jury to make a decision based on their sympathy for

injuries CW suffered and the duty to help her heal:      “We all

want [CW’s] spirit to heal even if her face won’t.      But in order

for that to happen, there has to be justice done.”      Conroy

objected to this statement as an appeal to passion and

prejudice.   The court responded, “So noted, Counsel.”

          We conclude the statement was improper because, viewed

in context, it was calculated to “divert the jury from its duty

to decide this case based on the evidence[.]”      Apilando, 79

Hawaiʻi at 149, 900 P.2d at 142.      The prosecutor requested that

the jurors provide justice to help heal CW’s spirit, which could

have encouraged them to make their decision based on sympathy

for CW or a need to exact retribution on Conroy rather than on

the evidence.

     6. SEVENTH STATEMENT

          After defense counsel’s closing argument, the

prosecutor began his rebuttal closing argument by stating:        “You

break my heart, I break your face.      That’s what this case is

about.”   Conroy objected to this statement on the basis of




                                 20
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


passion and prejudice, and the court sustained the objection,

struck the statement, and instructed the jury to disregard it.9

            We agree with the ICA that this statement improperly

referred to facts not in evidence.         Conroy, 2016 WL 3524605, at

*8.

      7. EIGHTH STATEMENT

            Thereafter, the prosecutor sought to provide

additional evidence to the jury based on his personal experience

that if Conroy were kicked in the testicle, he would not have

been able to strike CW:

            The statement itself, you’ll behold as far as
            credibility, you can consider the probability or
            improbability of a person’s statement. . . . If it
            was a kick to [Conroy’s] right testicle and he was
            bent over in excruciating pain, he would not have
            been able to hit anybody. I think that’s part of,
            certainly for the guys here --

Conroy objected to this statement on the basis of improper

opinion, and the court sustained the objection, struck the

statement, and instructed the jury to disregard it.

            The statement was improper.       The prosecutor was

beginning to comment on his personal knowledge of the amount of

pain a kick to the groin would have caused when he stated, “I

think that’s part of, certainly for the guys here --[.]”             While


      9
            The ICA recognized that this statement constituted prosecutorial
misconduct when it found no evidentiary support for the statement by the
prosecutor: “You break my heart, I break your face. That’s what this case
is about.” Conroy, 2016 WL 3524605, at *8.




                                     21
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


comments based on the testimony regarding the alleged kick to

Conroy’s groin would have been proper, the prosecutor’s comment

regarding his personal knowledge of the severity of pain a man

experiences when kicked in the groin was improper.      Tuua, 125

Hawaiʻi at 12, 250 P.3d at 275 (holding that the prosecutor

engaged in misconduct by stating to the jury during closing

arguments, without supporting evidence, that the defendant’s

brother could be convicted of perjury for testifying that he,

rather than his brother Tuua, committed the offense.); cf. State

v. Nofoa, 135 Hawaiʻi 220, 227-30, 349 P.3d 327, 334-37 (2015)

(holding that it was error for the court to instruct the

prosecutor that evidence could be offered to the jury during the

state’s rebuttal argument).

B.   Prosecutorial Misconduct Affecting the Issue of Defendant’s
     Intent Was Not Harmless Beyond a Reasonable Doubt Where the
     Only Witnesses to the Altercation Were the Defendant and
     the CW.

          As noted, a three-part test is applied to determine

whether prosecutorial misconduct is harmless.     “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.”    Agrabante 73 Haw. at 198, 830 P.2d

at 502.   The standard the prosecution must meet to prove the



                                 22
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


violation of an accused’s constitutional right to a fair trial

was harmless is whether “there is a reasonable possibility that

error might have contributed to conviction.     If there is such a

reasonable possibility in a criminal case, then the error is not

harmless beyond a reasonable doubt, and the judgment of

conviction on which it may have been based must be set aside.”

State v. Holbron, 80 Hawaiʻi 27, 32, 904 P.2d 912, 917 (1995).

          The nature of the misconduct committed by the

prosecutor was one of repeated improper appeal to the jury to

find Conroy guilty based on sympathy for CW and the need to heal

her — and to improperly call for the jury to deliver justice not

based on the facts, but on the need to provide revenge in the

form of a guilty verdict.   Eight times improper statements were

made to the jury.   In particular, the prosecutor continued to

improperly explain to the jury that they should provide justice

to CW after the court had previously sustained the objection to

those same arguments.

          The nature of the misconduct included a statement to

the jury that lacked any evidentiary support.     The prosecutor

ascribed to the Defendant the statement “You break my heart, I

break your face.”   As the Intermediate Court acknowledged, there

was no evidence to support the prosecutor’s claim that Conroy




                                 23
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


“had this thought[.]”10      However, the assertion constituted

support for the State’s theory that Conroy acted out of jealousy

to injure CW — rather than to defend himself.11

            At the close of trial, the court provided the jury

with a one sentence instruction to disregard stricken

statements:    “Instruction number 4, you must disregard entirely

any matter which the Court has ordered stricken.”               The trial

court’s curative instructions to disregard the evidence stricken

by the court were insufficient to cure the risk of prejudice to

Conroy because “the cumulative effect of prejudicial conduct

going to the issue of guilt is so strong that it overcomes the

presumption that the curative remarks of the court have rendered

     10
            The ICA explained:

                  The nature of the statement was improper, however,
            because it was phrased in the first-person point of view—
            You break my heart, I break your face—as though Conroy
            either spoke those words or had this thought at some time.
            Yet Conroy never testified that he intended to hurt CW; he
            was not asked, and did not disclose, his emotions regarding
            the divorce or ending relationship, nor did he tell the
            jury anything to support an inference that his actions were
            premeditated (although other witnesses seemed to attribute
            that type of sentiment to him). Accordingly, it might be
            said that “the statement[] diverted the jury from its duty
            to decide the instant case on the evidence” before it.

Conroy, 2016 WL 3524605, at *11 (internal citations omitted).
      11
            The Dissent appears to conflate the fact that some evidence
supports a characterization that Conroy was jealous that CW was seeing
another man with the improper introduction of false evidence in the closing
argument in support of this theory. Dissent at 6. Jealousy was indeed the
motive argued by the prosecutor as a basis for the jury to reject Conroy’s
claim of self-defense. The ICA found that the prosecutor committed
misconduct by making the false statement: “You break my heart, I break your
face”—a statement that improperly bolstered the government’s theory and
contradicted Conroy’s assertion of self-defense.




                                     24
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

                                           12
the prejudicial remarks harmless.”              State v. Pemberton, 71

Haw. 466, 476, 796 P.2d 80, 85 (1990)(holding that the

cumulative effect of prejudicial prosecutorial misconduct was so

pervasive that it overcame the presumption that limiting

instructions by the trial court could render the prejudicial

remarks harmless); see also Klinge, 92 Hawai‘i at 596, 994 P.2d

at 528 (“We recognize that there are situations in which[]

although no single prosecutorial act deprive[s] Defendant of a

fair trial, the cumulative effect of the prosecutor's improper

conduct [can be] so prejudicial as to deny him [or her] a fair

trial.”).

            The first two factors relevant to a determination of

harmless error weigh in favor of a finding that the error was

harmful:    (1) the prosecutorial misconduct was protracted,

repeated, and extensive in nature; and (2) the trial court’s

attempts to cure the effects of the misconduct were

insufficient.

            Under the third factor, the strength of the evidence,

an error is harmful when “there is a reasonable possibility that

the error complained of might have contributed to the

conviction.”     State v. Pauline, 100 Hawai‘i 356, 378, 60 P.3d

      12
             The trial court sustained four objections to the prosecutor’s
improper statements to the jury, but in only two instances struck the
evidence and instructed the jury to “disregard the last remark by the
attorney[.]”




                                      25
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


306, 328 (2002) (citations and internal quotation omitted);

Nofoa, 135 Hawai‘i at 229, 349 P.3d at 336.             Of significance to a

determination of the strength of the prosecution’s case is that

there were no witnesses to the altercation other than Conroy and

CW.13        The credibility of Conroy’s claim that his intent was to

protect himself when he hit CW was dependent on whether CW

slapped him in the face and kicked him in the groin.               Their

testimony was the only evidence presented as to whether CW used

force against Conroy.

                Conroy’s testimony was that he reacted “[without] a

thought”14 to protect himself after being kicked in the groin and

slapped by the CW.15        The force of the kick was sufficient to


        13
            See Rogan at 415, 984 P.2d at 1241 (“With regard to the third
factor in determining prosecutorial misconduct, this case essentially turned
on the credibility of two witnesses—the Complainant and Rogan. There were no
independent eyewitnesses or conclusive forensic evidence in this case.
Instead, the prosecution’s case against Rogan depended heavily on the
Complainant's testimony. Given that Rogan denied having committed any of the
acts for which he was charged, this case was based on the Complainant’s
version of the events against Rogan’s version. Under these circumstances, we
cannot say that the evidence of criminal conduct against Rogan was
overwhelming.”)(footnote omitted).
        14
            The    Dissent focuses on the statement “[without] a thought” to
conclude Conroy    could not have acted to protect himself. As noted, the full
record provides    the jury with ample evidence to support a finding that his
reaction was to    protect himself and that he did so in the immediacy of being
struck. Dissent    at 11.
        15
            The Dissent cites State v. Culkin, 97 Hawaiʻi 206, 216, 35 P.3d
233, 243 (2001), for the proposition that self-defense is not applicable
where the Defendant is reckless in believing the use of force is necessary or
in acquiring information material to justify its use. Dissent at 12. Culkin
is instructive. The Culkin court held that under the applicable statutes
self-defense is available when the defendant's subjective belief is
objectively reasonable. Id. Thus, the court found that the defendant’s

                                                                (. . . continued)


                                        26
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


cause him to experience pain that made him bend over.             While

bent over, he was slapped in the face.          After being slapped, he

quickly threw two “unaimed” punches that caused the CW’s

injuries.    CW’s previous act of violence, as testified to by

Conroy, in which the CW struck him three times in the head with

a television remote with sufficient force to break his tooth,

constitutes further corroboration of his self-defense claim.

Conroy’s testimony constituted evidence upon which a reasonable

juror might have found he acted in self-defense.16

            The strength of the evidence in support of self-

defense, the protracted nature of the prosecutorial misconduct,17


(continued . . . )

claim of self-defense was not preluded although he was charged with reckless
manslaughter. Id. As in Culkin, the determination of the applicability of
self-defense in this case was for the jury.
      16
            The Dissent argues that the evidence against Conroy was “so
overwhelming that there is no reasonable possibility his conviction was due
to the prosecutor’s improper statements” because “there is no dispute that
Conroy punched [CW] in the face — Conroy testified that he did so, not once,
but twice.” Dissent at 14, 16. While it is not disputed that Conroy punched
CW in the face, Conroy’s conviction turned on whether he acted in self-
defense. Therefore, the proper inquiry under the third prong of the
Agrabante test considers the evidence related to Conroy’s self-defense claim.
As discussed supra, the question of whether Conroy acted in self-defense was
dependent on the jury’s evaluation of the conflicting testimony of Conroy and
CW. Conroy testified that he reacted without thought to protect himself
after being kicked in the groin, the pain caused him to bend over and while
bent over he was slapped in the face, and that he quickly threw two unaimed
punches that caused the CW’s injuries. The evidence presented to the jury
clearly did not overwhelmingly refute self-defense, as also reflected in the
court providing instruction to the jury on this defense.
      17
            The Dissent asserts that unlike three cases involving
prosecutorial misconduct, Rogan, 91 Hawaiʻi 405, 984 P.2d 1231, Basham, 132
Hawaiʻi 97, 319 P.3d 1105, and Mainaaupo, 117 Hawaiʻi 235, 117 P.3d 1 (2008),
in the instant case “the prosecutor's improper statements did not refer to

                                                             (. . . continued)


                                      27
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***


and the ineffective curative instructions of the court cause us

to conclude that the misconduct was not harmless beyond a

reasonable doubt.     See State v. Pasene, 144 Hawaiʻi 339, 364, 439

P.3d 864, 889 (2019) (holding that prosecutorial misconduct may

provide grounds for a new trial if the prosecutor’s actions

denied the defendant a fair trial).

                              IV.   Conclusion

            The ICA’s July 22, 2016 judgment on appeal and the

circuit court’s May 2, 2012 judgment are vacated, and the case

is remanded to the circuit court for further proceedings.

Matthew S. Kohm                     /s/ Sabrina S. McKenna
for Petitioner
                                    /s/ Richard W. Pollack
Richard K. Minatoya
for Respondent                      /s/ Michael D. Wilson




(continued . . . )

the race or ethnicity of any party, express the prosecutor’s personal belief
that Conroy was guilty, misstate the law, or comment on the defendant’s
decision not to testify,” and therefore the prosecutorial misconduct “did not
prejudicially affect [Conroy's] substantial rights.” Dissent at 4-6. With
respect, nothing in our jurisprudence limits the situations where
prosecutorial misconduct warrants a new trial to the specific circumstances
listed by the Dissent. In this case, the critical test for whether the
prosecutorial misconduct is harmless is whether it can be concluded beyond a
reasonable doubt that the misconduct may have contributed to the conviction.
As discussed supra, there is a reasonable possibility that the misconduct
might have affected the jury’s deliberations.




                                     28
