    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                22-APR-2019
                                                                07:51 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                 ---o0o---


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

                                     vs.

                      IOSEFA MEAFUA PASENE,
               Petitioner/Defendant-Appellant and
    ZORRO R. RYE, aka Zorro Ramon Rye, Respondent/Defendant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 09-1-0472)

                              APRIL 22, 2019

   RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND
     CIRCUIT JUDGE VIOLA, IN PLACE OF POLLACK, J., RECUSED

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          The right to a fair trial, guaranteed to criminal

defendants by both the Constitution of the United States and the

Constitution of the State of Hawaii, is a fundamental principle
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


upon which our justice system is built.           U.S. Const. amend. VI;

Haw. Const. art. I, § 14.        In the instant case, we are called

upon to determine whether multiple instances of improper

prosecutorial conduct cumulatively jeopardized the defendant’s

right to a fair trial.

            Iosefa Meafua Pasene was charged with Murder in the

Second Degree and Carrying or Use of Firearm in the Commission of
a Separate Felony.      After two prior trials resulted in mistrials

due to hung juries, Pasene was convicted of both offenses in a

third jury trial held by the Circuit Court of the First Circuit

(circuit court).1     The Intermediate Court of Appeals (ICA)

affirmed.

            On certiorari, Pasene challenges the circuit court’s

rulings: (1) denying his pre-trial Moriwake motion to dismiss;

(2) permitting a Honolulu Police Department (HPD) detective to

testify as to why another suspect was ruled out; (3) admitting

cell phone site records into evidence; (4) admitting evidence of

his meetings and transactions with an undercover HPD officer; (5)

denying his request to excuse a juror; and (6) denying his

motions for mistrial and motion for a new trial due to

prosecutorial misconduct.

            Although the first five issues are without merit, we



     1
           The Honorable Richard W. Pollack presided over the first jury
trial. The Honorable Rom A. Trader presided over the second and third jury
trials.

                                       2
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


hold that the cumulative effect of the prosecutor’s improper

conduct was so prejudicial as to jeopardize Pasene’s right to a

fair trial.    We therefore vacate Pasene’s convictions and remand

this case to the circuit court for further proceedings consistent

with this opinion.

                               I.   BACKGROUND

            Pasene, Cedro Muna (Muna), and Antonius Paul Toloai
(Toloai) were released from police custody in the early hours of

March 28, 2009, after being arrested the previous afternoon.                  At

the time of their release, Pasene and Muna were dressed alike and

had similar physical characteristics, other than the fact that

Pasene had a short beard, while Muna did not.2

            Later that morning, at around 4:00 a.m., Joseph

Peneueta (Peneueta) and several others were gathered outside the

Pauahi Recreation Center in Chinatown.           A blue Buick sedan drove

up to the group and stopped in front of them.             Two men, each

carrying a firearm, exited the car and advanced toward Peneueta.

They shot Peneueta several times, killing him.3             Roughly two



      2
            Photos taken by HPD officers the previous afternoon show Pasene
and Muna wearing plain white t-shirts with short mustaches and long hair.
Pasene was wearing black shorts and white shoes, while Muna was wearing long
black pants and gray shoes. Contemporaneous police records describe Pasene as
a 21-year-old Samoan male with black hair and brown eyes, standing 6’2” tall,
and weighing 250 pounds. Police records from the same time period describe
Muna as a 22-year-old Samoan male with black hair and brown eyes, standing
6’1” tall, and weighing 240 pounds.
      3
            The medical examiner testified that Peneueta died “as a result of
heavy bleeding due to injuries to his vital organs caused by . . . gunshot and
shotgun injuries.” All were fatal wounds.

                                       3
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


hours later, a blue Buick sedan was reported burning just outside

of Wahiawā.

A.   Pre-trial Proceedings

           Pasene was indicted by a grand jury in connection with

Peneueta’s killing and charged with, inter alia, Murder in the

Second Degree, in violation of Hawaii Revised Statutes (HRS)

§ 707-701.5 (2014), and Carrying or Use of Firearm in the
Commission of a Separate Felony, in violation of HRS § 134-21

(2011).   Pasene was tried a total of three times for these

crimes.

     1.    Moriwake Motion to Dismiss

           After his first two trials resulted in mistrials due to

the juries’ inability to reach unanimous verdicts, Pasene filed a

motion to dismiss his indictment with prejudice, pursuant to

State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982).              The Moriwake

court set forth the following six factors for a trial court to

consider in determining whether to dismiss an indictment after

one or more hung jury mistrials:

           (1) the severity of the offense charged; (2) the
           number of prior mistrials and the circumstances of the
           jury deliberation therein, so far as is known; (3) the
           character of prior trials in terms of length,
           complexity and similarity of evidence presented; (4)
           the likelihood of any substantial difference in a
           subsequent trial, if allowed; (5) the trial court’s
           own evaluation of relative case strength; and (6) the
           professional conduct and diligence of respective
           counsel, particularly that of the prosecuting
           attorney.

Moriwake, 65 Haw. at 56, 647 P.2d at 712-13.

                                       4
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


           The circuit court considered each of these factors in

turn.   First, with regard to the severity of the offenses

charged, the circuit court noted that the charges facing Pasene

were “among the most serious there are . . . clearly cut[ting]

against a dismissal.”      Second, with regard to the number of

mistrials and the circumstances of the jury deliberations

therein, the circuit court opined that “there were somewhat
dissimilar circumstances,” apparently referencing the fact that

the final jury tally was 9 to 3 in favor of guilty for the first

trial and 9 to 3 in favor of not guilty for the second trial.

The circuit court determined this factor thus weighed against

dismissal.   Third, the circuit court found that each of the two

trials lasted between 3 and 4 weeks, and the evidence presented

was largely similar, favoring dismissal.

           Zorro Ramon Rye (Rye) was tried as Pasene’s co-

defendant in the first two trials, but was acquitted at the

conclusion of the second trial.        The circuit court noted that the

dynamic of the case changed as a result of Rye’s acquittal and

determined that the fourth Moriwake factor therefore cut against

dismissal.   With regard to the fifth Moriwake factor, the circuit

court stated that its evaluation of the relative strength of the

case cut against dismissal, as it found “ample evidence” for a

jury to reach a unanimous decision.         Finally, the circuit court

opined that the professional conduct and diligence of counsel did

not weigh for or against dismissal.

                                      5
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


          Finding that the only Moriwake factor weighing in favor

of dismissal was the character of the prior trials in terms of

length, complexity and similarity of the evidence presented, the

circuit court denied Pasene’s motion to dismiss and set the case

for a third trial.

     2.   Admissibility of Cell Phone Site Records

          Pasene filed Motion in Limine No. 3, seeking to exclude
from evidence cell phone site records associated with a specific

phone (the Phone).     The cell phone site records were produced by

Vince Monaco (Monaco), a network engineering manager and

custodian of records for Mobi PCS (Mobi).           Pasene filed similar

motions in limine prior to the first and second trials.              It

appears that in reaching its ruling on Motion in Limine No. 3,

the circuit court relied on Monaco’s testimony from the first

trial, as well as its prior rulings.

          The cell phone site records listed the following

information for each call placed or received by the Phone from

March 27, 2009 to April 3, 2009: time and date of call

initiation; phone number connected to; call duration; and street

address of the cell tower utilized to connect the call.              As a

result, the records purport to show the general location of the

Phone at various times on the date of Peneueta’s killing.               Under

the State’s theory of the case, Pasene was the Phone’s primary

user.

          In the first trial, Monaco testified that he produced

                                      6
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


the records pursuant to a subpoena, using a program that he

created.   When prompted by Monaco, the program compiled

information from call records associated with the Phone and a

cell site database, both generated and maintained by Mobi.

Although Monaco could not say that the program was widely

accepted within the cellular service industry, he testified that

Mobi utilizes the same process of combining information in call
records and the cell site database in its regularly-conducted

troubleshooting and quality-control activities.            Monaco further

testified that the process is simple enough to be performed

manually, and was in fact done manually prior to the creation of

his program.

           Monaco testified that Mobi’s call records are recorded,

generated, and maintained by computers, and that the accuracy of

the records is important to Mobi.         Monaco added that the switch

used to generate Mobi’s call records is fully redundant to

prevent errors and alarmed to alert the operator of any errors

that do occur.    In addition, Monaco stated that the switch’s

manufacturer guaranteed it to work “99.999 percent of the time,”

but admitted that he did not know whether the switch was ever

tested for accuracy or error.

           Motion in Limine No. 3, filed prior to the third trial,

was identical to a motion in limine that Pasene filed prior to

the second trial.     The motions challenged the admissibility of

the cell phone site records as business records under Hawaii

                                      7
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Rules of Evidence (HRE) Rule 803(b)(6), arguing that the records

were not kept in the ordinary course of business and that the

methodology used to create the records did not meet the

foundational requirements of State v. Montalbo, 73 Haw. 130, 828

P.2d 1274 (1992).

          The circuit court denied Pasene’s motion in limine

before the second trial and allowed the cell phone site records
to be admitted as business records under Hawaii Rules of

Evidence (HRE) Rule 803(b)(6) (2016).          In reaching its ruling,

the circuit court found that Mobi kept “information and data

regarding its equipment and systems, including the cell phones,

as well as the cell towers, as part of its regular business and

that . . . information or data . . . is recorded at or near the

time of the event.”     It explained that compiling clearly

admissible data into a report in response to a subpoena did not

“cause it to run afoul [of] the prohibition against records

prepared . . . in anticipation of litigation.”            Furthermore,

although the circuit court acknowledged that the records are “not

the type that are normally generated in connection with [Mobi’s]

business,” and were produced in preparation for trial, it found

“no indication whatsoever that [the] records or reports lack

trustworthiness in any way.”

          The circuit court affirmed its ruling on Pasene’s prior

motion and denied Motion in Limine No. 3, allowing the cell phone

site records to be admitted into evidence for purposes of the

                                      8
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


third trial.

     3.   Admissibility of Testimony Regarding Meetings and
          Transactions With Undercover HPD Officer Le

          Prior to trial, Pasene also filed Motion in Limine No.

4, seeking to exclude from evidence testimony pertaining to drug-

related meetings and transactions that occurred between Pasene

and undercover HPD Officer Khan Le (Officer Le) in the three

weeks leading up to Peneueta’s shooting.          Pasene argued that
testimony regarding the nature of the meetings and transactions

constituted evidence of prior bad acts.          Asserting that the

State’s only legitimate purpose for introducing the evidence was

to link Pasene to the Phone, defense counsel offered to stipulate

that Pasene was in possession of the Phone at the dates and times

he was contacted by Officer Le, while reserving the right to

present evidence that Pasene was not in possession of the Phone

at the time of the shooting.       Pasene argued such a stipulation

would preserve the probative value of the testimony while

eliminating its prejudicial impact.         The State declined to so

stipulate.

          Pasene then argued that the evidence should be excluded

under HRE Rule 403 (2016) because its probative value was

substantially outweighed by the danger of unfair prejudice.                  The

circuit court granted in part and denied in part Motion in Limine

No. 4, in order to reduce the testimony’s prejudicial effect

while retaining its probative value.         The circuit court explained


                                      9
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


that the testimony was relevant to explain “law enforcement[’s]

concern as to the escalation of problems between the two rival

groups or gangs in the Chinatown area” and to show “a tie-in to a

phone, a cell phone, as well as a blue Buick.”             In order to

reduce the testimony’s prejudicial effect, the circuit court

limited the allowable testimony to exclude “evidence of Defendant

Pasene’s gang membership and the fact that he is believed to be
engaged in the sale or transaction of drugs,” as well as “any

mention of drugs, money or money transactions of any kind.”

B.   Third Jury Trial

     1.    Overview

           At trial, the State presented testimony from two eye-

witnesses, Gabriel Sakaria and Richard Tagataese, who both

identified Pasene as the driver of the blue Buick sedan and one

of Peneueta’s killers.       The State also presented testimony from

Officer Le to tie Pasene to the Phone and the blue Buick sedan,

and used cell phone site records to show that the Phone was in

Peneueta’s general vicinity around the time of his killing, and

in the blue Buick sedan’s general vicinity around the time it was

set on fire.

           Under the State’s theory, Muna could not have been

involved in Peneueta’s shooting, as he was in a taxi cab heading

to the Plaza hotel when the shooting occurred.             To support this

theory, the State presented testimony from Detectives Gregory

McCormick and Theodore Coons regarding the steps they took to

                                      10
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


investigate Muna.     Chinatown surveillance footage, which was not

admitted into evidence, was also discussed at trial as a basis

for the detectives’ decision to rule Muna out as a suspect.

            Pasene relied on the defense of mistaken identity,

arguing that Muna could have been the driver who shot and killed

Peneueta.    Pasene presented testimony from Linda Del Rio, a bail

bond agent, that Muna confessed to her on the morning of
Peneueta’s killing that he’d shot someone.           Pasene also testified

that he was not in possession of the Phone or the blue Buick

sedan at the time of Peneueta’s killing.

            During the trial, defense counsel requested that the

circuit court excuse Juror No. 1 because he interacted with a

witness and discussed the interaction with another juror.               This

request was denied.     Defense counsel also objected throughout the

trial and made several motions for mistrial on the bases of

evidentiary violations and prosecutorial misconduct.             Although

the circuit court sustained numerous objections raised by defense

counsel, admonished the Deputy Prosecuting Attorney (DPA)

multiple times, and expressed concern that the DPA’s pattern of

conduct could jeopardize Pasene’s right to a fair trial, it

denied Pasene’s motions.

     2.     The State’s Opening Statement

            In his opening statement, the DPA suggested that two

groups of Samoan men - one local, and one from San Francisco -

were engaged in a territorial dispute.          According to the DPA,

                                     11
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


evidence presented at trial would show that Pasene shot and

killed Peneueta in response to escalating tensions between the

two groups.

          Defense counsel made ten objections during the DPA’s

opening statement.     The circuit court sustained six objections on

the basis of improper argument, and warned the DPA, “I’ve

sustained many appropriate objections raised at this point.                  You
know what argument is.      You are engaging in argument.          Do not do

that.”

          The DPA then stated:

          [A]s far as Mr. Muna being a suspect, you will hear
          the testimony of Detective Greg McCormick and
          Detective Theodore Coons, both of whom investigated
          Cedro Muna and eliminated him as a suspect because the
          Chinatown cameras were able to capture Mr. Muna
          getting into the taxi, as testified to by the taxi
          driver and as stated to them by Mr. Muna, and the taxi
          driver and the timing allowed the police to eliminate
          Mr. Muna as a suspect, because as the car . . . was
          driving away . . . shots were heard.

(Emphases added).

          Defense counsel objected, as the surveillance footage

from the Chinatown camera referenced by the DPA was “not

recoverable,” and therefore would not be admitted into evidence.

Although no curative instruction was given, the circuit court

addressed the DPA at the bench as follows:

          [G]iven the number of objections that have been
          sustained thus far, you know, one would question
          whether or not this is just inadvertent or you are
          blatantly disregarding the Court’s – the rulings about
          the limitations of opening statement.
          . . .


                                     12
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


          [Y]ou have this tendency to launch into an
          argumentative tone and syntax, that certainly a
          conclusion could be drawn, that could be reasonable
          based upon the number of those instances, to question
          whether or not that is, in fact, inadvertent or if you
          are doing it purposefully. I certainly hope it’s not
          the latter, . . . [b]ut I ask you to try to be
          careful. Because this is the third trial. We want to
          make sure that everybody has a fair opportunity to be
          heard.

(Emphasis added).

          At the conclusion of the State’s opening statement,
defense counsel moved for a mistrial, arguing the DPA’s use of

improper argument forced him to repeatedly object and prejudiced

Pasene’s opportunity to receive a fair trial.            The circuit court

denied the motion, but admonished the DPA, acknowledging that any

further improper conduct could jeopardize Pasene’s right to a

fair trial:

          [T]he reality is, . . . the sum total of the repeated
          references or arguments that you made during your
          opening really . . . causes me to seriously question
          whether or not it is intentional or it is purely
          inadvertent. I don’t care, to be quite frank about
          it. Both sides are entitled to a fair trial.
          . . .
          I’m putting you clearly on notice . . . we’re in a
          third trial . . . [and] we want to make sure that
          everything is done as appropriately and properly as
          possibly can be. You want a fair trial. Mr. Pasene
          deserves a fair trial, as well. And playing fast and
          loose with . . . the rules or conventions of court
          really is not going to serve you well if you choose to
          do that. . . . [G]oing forward I will full well
          expect you to conduct yourself . . . without the need
          to inject improper statements, comments, or what have
          you.

(Emphases added).



                                     13
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


     3.    Evidence

           The jury was presented with testimony elicited from 27

witnesses during the evidence phase of trial.            The evidence most

directly relevant to the issues on appeal is set forth below.

           a.     Gabriel Sakaria

           Gabriel Sakaria (Sakaria) testified that he, Richard

Tagataese (Tagataese), and Peneueta grew up together and had been
friends for over 20 years.       Sakaria stated that he witnessed

Pasene and Peneueta arguing outside a liquor store on the morning

of Peneueta’s shooting.      He heard Pasene say, “[w]here we from we

don’t fight, we shoot, shoot to kill.”          Sakaria later walked to

the nearby recreation center.        He was sitting next to Peneueta

outside the center, when a four-door blue Buick sped up the

street and stopped right in front of them.           Two men got out of

the car.     The driver was holding a rifle and his face was

uncovered.      Sakaria identified him as Pasene.        The passenger was

holding a shotgun, but Sakaria was unable to identify him because

his face was covered.

           Sakaria testified that the driver walked towards

Peneueta with the rifle pointed at him and said, “What’s up now?”

Sakaria stated he was roughly three feet away from the driver,

the lighting conditions were good, and he had an unobstructed

view of the driver’s face.       Sakaria testified that he heard a

gunshot and ran.      He heard at least ten more gunshots as he fled.

When he returned to the area, Peneueta was lying in the street.

                                     14
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Sakaria also testified that he knew Muna and was “[h]undred

percent” positive that the driver was Pasene, and not Muna.

            b.   Richard Tagataese

            Tagataese testified that he was outside the recreation

center with Peneueta and Sakaria at the time of Peneueta’s

shooting.    Tagataese’s testimony regarding the details of

Peneueta’s shooting was substantively consistent with Sakaria’s
version of events.     Tagataese identified Pasene as the driver of

the car, and one of Peneueta’s killers.

            c.   Darren Kawelolani

            Taxi cab driver Darren Kawelolani (Kawelolani)

testified that one of his regular customers, Daniel Ropati

(Ropati), called him from Chinatown at around 4:00 a.m. on the

morning of Peneueta’s killing.        When Kawelolani arrived in

Chinatown roughly 10 minutes later, Ropati no longer wanted a

ride, so Kawelolani picked up two male passengers that he did not

know.   Kawelolani testified that after the passengers entered his

cab, he saw a blue car speed by within three feet of the cab.

The blue car’s windows were rolled up and tinted or dirty.

Shortly after the blue car passed by, Kawelolani heard what

sounded like firecrackers or eight to ten loud gunshots.              He

proceeded to drive to the Best Western Airport Plaza Hotel, where

he dropped off one of the passengers.          He then returned to

Chinatown, where he dropped off the other passenger.

            Kawelolani was interviewed by HPD Detective Gregory

                                     15
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


McCormick (Detective McCormick) four or five days after

Peneueta’s killing.     Kawelolani testified that during the

interview, he identified Toloai as one of the passengers based on

a single photograph presented to him by Detective McCormick.

Kawelolani was unable to identify the second passenger.

           At trial, Kawelolani testified that the driver of the

blue car had long hair.      When asked if the driver had any facial
hair, Kawelolani responded, “Not that I recall.”            However, after

reviewing a copy of the statement he gave to the police four or

five days after the shooting, Kawelolani testified that the

driver of the blue car “not only had long hair, but he also had a

beard.”   When asked if he ever saw the driver of the blue car

after his initial sighting, Kawelolani responded, “Yes. . . .                I

saw him on the news on the television.”          Kawelolani did not

identify Pasene as the driver of the blue car or the person that

he saw on the news.

           d.    Detective Gregory McCormick

           Detective McCormick was the lead homicide detective

assigned to investigate Peneueta’s killing.           He testified that

shortly after the shooting, he was given the names of three

possible suspects: Pasene, Muna, and Toloai.           The DPA asked

Detective McCormick, “[w]hat conclusion did you come to regarding

Cedro Muna being one of the shooters?”          Defense counsel objected

to the question, arguing that Detective McCormick’s conclusion

regarding Muna was irrelevant and that the question was improper

                                     16
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


because it was equivalent to asking for Detective McCormick’s

personal opinion about whether Muna was involved in Peneueta’s

killing.    The circuit court sustained in part and overruled in

part the objection, acknowledging the possibility that the jury

might use Detective McCormick’s opinion for an improper purpose.

Accordingly, the circuit court limited the DPA’s line of

questioning to the “efforts [Detective McCormick] made relative
to Mr. Muna and the conclusion of those efforts” - whether they

cleared him as a suspect in the investigation.

            McCormick testified that Muna was interviewed, but not

arrested in connection with Peneueta’s killing.             The DPA then

questioned Detective McCormick regarding his elimination of Muna

as a suspect, prompting defense counsel to object and move for a

mistrial:

            [DPA]: Did you interview other witnesses that could
            corroborate what Mr. Muna had told you?

            [Detective McCormick]: Yes.

            [DPA]: Okay.   Who was that?

            [Detective McCormick]: One of ‘em was Antonias Toloai.

            [Defense counsel]: Your Honor, can we approach again
            please?

            The Court: All right.   Very well.

            (The following proceedings had at the bench:)

            [Defense counsel]: [T]he problem is . . . I’m never
            going to cross [Toloai], and he says [Toloai’s]
            statement matches Cedro [Muna]’s. And that’s a
            violation of the confrontation clause and my client’s
            right to cross-examine witnesses against him. And


                                      17
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


             that’s why it’s hearsay and it’s problematic. And so
             I’d like to ask for a mistrial. I move for a mistrial
             because this violates a whole variety of rules of
             evidence.

             . . .

             The Court: [Defense counsel] has a valid concern and
             point, because you know, . . . once you start placing
             the moniker of corroboration on there, essentially
             that’s saying that . . . what they said to the police
             was the same thing Mr. Muna had said. And he’s not
             going to get an opportunity to cross-examine those
             folks [because they are not going to testify].

(Emphasis added).

             The circuit court denied Pasene’s motion for mistrial

and instructed the jury that Detective McCormick’s testimony that

“Muna was in fact interviewed and that he was not arrested,”

would stand.     The circuit court struck all of the testimony that

followed and instructed the jury to “treat it as if you didn’t

hear it,” acknowledging that disregarding the stricken testimony

may be “easier said than done.”

             At the bench, the circuit court also addressed whether,

and to what extent, the DPA could question Detective McCormick

regarding Chinatown surveillance footage that he reviewed in the

course of his investigation.         The DPA represented to the circuit

court that the surveillance footage showed Muna getting into

Kawelolani’s taxi cab.4       However, defense counsel objected to the

allowance of any testimony regarding the content of the



      4
             The DPA also referred to this footage in the State’s opening
statement.   See section I.B.2.

                                      18
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


surveillance footage because it “somehow was unrecorded or

destroyed.”     In recognition of the fact that the surveillance

footage was not turned over to the defense and could not be

viewed by the jury, the circuit court proposed limiting Detective

McCormick’s testimony regarding the surveillance footage to the

following:

          [T]o the extent that [the DPA] examines [Detective
          McCormick] on the video evidence, that . . . following
          the interview of Mr. Muna[,] he viewed the video and .
          . . based upon what he viewed in the video, . . .
          essentially Mr. Muna was cleared.

          . . .

          [B]asically [that the detectives] chose not to further
          investigate Mr. Muna.

          Defense counsel replied, “If he keeps it to that,

that’s fine.”

          Detective McCormick testified that although he viewed

the Chinatown surveillance footage in the course of his

investigation, it was “not recoverable.”          The State examined

Detective McCormick regarding the Chinatown surveillance footage

as follows:

          [DPA]: As part of your investigation of Cedro Muna,
          you reviewed some of the camera videotape from
          Chinatown; is that correct?

          [Detective McCormick]: Yes.

          [DPA]: Okay. And based upon your review of that – of
          that video, that was part of the reason why you were
          able to eliminate Mr. Muna as a suspect?

          [Detective McCormick]: That was part of the reason,
          yes.


                                     19
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***



           [DPA]: Okay. And in addition to other parts of your
           investigation which – in addition to the video that
           you saw led you to eliminate Mr. Muna as a suspect in
           the shooting?

           [Detective McCormick]: Yes.

           Defense counsel did not object.          Detective McCormick

also testified that a blue Buick, with the license number JGA

055, was reported burning just before 6:00 a.m. on the day of
Peneueta’s shooting.     The car was registered to Sylvia Hall

(Hall).   Detective McCormick further testified that the car was

registered to Muna until Hall registered it in her name on

February 10, 2009.

           e.    Detective Theodore Coons

           Detective Coons was the scene investigator assigned to

Peneueta’s killing.     When asked whether, based on his review of

the Chinatown surveillance footage, he ruled Muna “in or out,”

Detective Coons confirmed that Muna was not arrested in

connection with Peneueta’s killing and testified that his review

of the Chinatown surveillance footage “was one of the aspects”

that led to the elimination of Muna as a suspect.

           The State moved surveillance footage recorded at the

Best Western Airport Plaza Hotel into evidence.            Detective Coons

testified that he viewed the footage at the hotel in the course

of his investigation, and at the time, it was marked with a date




                                     20
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


and time stamp.5     The footage admitted into evidence lacked such

temporal references, but Detective Coons testified that it was

“an exact copy” of the footage he reviewed at the hotel.

Detective Coons also confirmed that a car with the license plate

number JGA 055, registered to Hall, was reported burning near

Waialua shortly after the shooting.          Detective Coons further

testified that he met with Hall and she did not have a driver’s
license.    Without objection by defense counsel, Detective Coons

described Hall as “a very simple person.           She was accompanied by

a social worker.     She was sober.        She appeared coherent and she

understands.     But it was obvious that she was a simple . . .

person.”

            f.    Vince Monaco

            The circuit court permitted Monaco, the network

engineering manager and custodian of records for Mobi, to testify

as an expert in “cell phone technology and the technique of

locating and plotting origins of cell phone calls using cell

phone records.”     Monaco testified that, according to Mobi’s

records, the Phone was associated with the name Fasi Lya.

            Pursuant to the circuit court’s ruling regarding Motion




      5
            The custodian of records testified that the hotel surveillance
footage was recorded on March 28, 2009, but there is nothing in the record to
indicate that the footage was recorded around the time of Peneueta’s killing.
The footage was introduced by the State in order to: 1) explain the HPD
detectives’ efforts to fully investigate Muna before eliminating him as a
suspect; and 2) corroborate Muna’s alibi that he was in a taxi cab on the way
to the Best Western Airport Plaza Hotel at the time of the shooting.

                                      21
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


in Limine No. 3,6 the circuit court admitted into evidence cell

phone site records and text message records associated with the

Phone.    Monaco testified that the cell phone site records

indicated that the Phone utilized cell towers in or near

Chinatown at 3:43 a.m., 4:06 a.m., and 4:12 a.m. on the morning

of Peneueta’s shooting.       The Phone also connected to cell towers

in the Wahiawā area at 5:50 a.m. and 5:52 a.m.7             The text message
records also included a message sent from the Phone at 4:47 a.m.

on March 29, 2009, the day after Peneueta’s killing.              The message

stated, “I need a lawyer because they trying 2 put a hot one on

me so don’t talk on da phone.”

            g.    Undercover Officer Khan Le

            Officer Le testified that he first met Pasene on

March 10, 2009, while working undercover in Chinatown.               Officer

Le arranged meetings with Pasene on March 12, 13, 19, 26, and 30

by communicating with Pasene using the Phone.             Officer Le stated

that of all the times he called the Phone, only Pasene answered.

Officer Le also testified that Pasene drove to four or five of

their meetings in a dark-colored sedan with the license plate



      6
            With respect to all three jury trials, defense counsel challenged
the admissibility of the cell phone site records through motions in limine.
These motions were denied. Prior to admitting the records into evidence
during the third trial, the circuit court noted “all prior positions” taken by
defense counsel and gave defense counsel an opportunity to object further.
Defense counsel stated he had “[n]othing additional to what we’ve already
placed on the record.”
      7
            Wahiawā is located between Chinatown, where Peneueta’s killing
took place, and Waialua, where the blue Buick sedan was reported burning.

                                      22
       *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


number JGA 055, and that two of their meetings took place in the

car.

             Officer Le testified that the purported purpose of his

final meeting with Pasene, which occurred two days after

Peneueta’s killing, was “to have a transaction.”               In apparent

violation of the circuit court’s ruling on Motion in Limine No.

4, which precluded “any mention of drugs, money or money
transactions,” the DPA asked Officer Le how much money was

involved in the transaction, and he responded “$6,000.”                 Defense

counsel did not object.         Officer Le also stated that Pasene was

arrested during that final meeting.            On cross-examination,

defense counsel asked Officer Le, “[o]n [March] 26, 2009, money

was also exchanged, right?”          Le responded affirmatively.         Defense

counsel then asked Officer Le to confirm that the exchange “was

in the amount of $4,900.”          Officer Le responded, “correct.”

             h.     Request to Excuse Juror No. 1

             During a recess following the conclusion of Officer

Le’s testimony, Juror No. 1 approached Officer Le and asked if he

practiced jiu-jitsu.        Officer Le responded by shaking his head to

indicate “no.”       Juror No. 1 told Juror No. 2 about his exchange

with Officer Le, but there was no further interaction between

Juror No. 1 and Officer Le.

             The court asked Juror No. 1 if the interaction left him

with “any type of impression or reaction” that might “affect

[his] ability to sit on this case,” to which he replied “No.”

                                        23
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


The court then asked Juror No. 1 if he had any concern that the

interaction “might in some small way, even inadvertently . . .

affect the way [he looks] at either the evidence or . . . the

application of the law to the facts” in this case.              Juror No. 1

again replied “No.”      Neither the DPA nor defense counsel elected

to question Juror No. 1 further.           When asked if either counsel

thought an inquiry with Juror No. 2 would be appropriate, both
the DPA and defense counsel deferred to the circuit court’s

determination that such an inquiry was unnecessary.

            Pasene asked the circuit court to excuse Juror No. 1,

arguing that the juror’s conduct demonstrated an unwillingness or

inability to follow the circuit court’s instructions.8              The

circuit court denied Pasene’s request, finding “nothing about

[the] particular encounter . . . remotely touched upon the facts

in this case,” and concluding Juror No. 1’s conduct was “fairly

innocuous.”

            i.    Linda Del Rio

            The defense put on testimony from bail bond agent Linda

Del Rio (Del Rio).      Del Rio testified that she posted bail bonds


      8
            At the start of trial, the circuit court gave the following
instruction to the jury:

            We talked about seeing the attorneys, right, out and
            about the courthouse or anyplace else. If you see
            them, you can say “hi”; see witnesses, you know, same
            goes for that. But please have as minimal interaction
            as you possibly can with them because we want to make
            sure the trial is fair in actuality - both in
            actuality but as well as in perception . . . .


                                      24
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


for Pasene, Muna, and Toloai in the early hours of March 28,

2009.   She recalled that Muna owned a blue four-door sedan, which

he tried to use as collateral.         Del Rio also stated that Muna

used the car as collateral when she bailed him out on a previous

occasion.

            Del Rio also testified that Muna called her between

10:30 a.m. and 11 a.m. on the morning of Peneueta’s shooting.                 He
told her he “was in Wahiawa, and that he had done something and

he needed to . . . turn himself in.”          According to Del Rio, Muna

also confessed to her, “Aunty, I shot someone.”

            j.    Cedro Muna

            Muna testified that Pasene was using a car that

belonged to someone named Fasi - not the blue Buick sedan - prior

to their arrest on March 27, 2009.          He also stated that Pasene

did not own a phone at the time.           Muna further testified that he,

Pasene, and Toloai went to Chinatown after they were released

from police custody on the morning of March 28, 2009.               There, he

witnessed Pasene and Peneueta arguing outside a liquor store.

            Muna testified that he saw Pasene point a shotgun at

Ropati roughly 30 minutes later, telling Ropati to “get away or

he was going to shoot him.”9        Muna testified that Ropati called a

cab, but gave it away, despite having been threatened with a

shotgun a couple of minutes earlier.          Muna stated he and Toloai

      9
            This allegation provided the foundation for Count IV, Terroristic
Threatening in the First Degree. Pasene was found not guilty of Count IV in
the second jury trial.

                                      25
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


got into the cab and before the cab pulled away, he saw a blue

Buick pass by.    He recognized the car as his old car and

identified the car’s driver as Pasene.          As the cab drove off,

Muna heard about ten gunshots.        Muna testified that he took the

taxi to the Best Western Airport Plaza Hotel.

            The DPA showed Muna surveillance footage from the

hotel’s elevator camera that had been admitted into evidence.
Muna testified that he recognized himself in the footage based on

his clothing.    Muna stated that he left the hotel just ten

minutes after he arrived, explaining, “I forgot that my hotel is

in Waikiki, . . . [s]o I got in [another] cab and I went to

Waikiki.”

            Muna denied attempting to use the blue Buick as

collateral to secure his bail bond.         He testified that he sold

the blue Buick to someone named Tia in January 2009, and he was

present when Tia sold it to Pasene in February 2009.             Muna also

denied telling Linda Del Rio that he shot someone on March 28,

2009.   He stated that he had a good relationship with Del Rio

when she bailed him out on the morning of Peneueta’s shooting,

but their relationship turned “bad” when he “jumped bail.”               Muna

explained that he left Hawaii two months after Peneueta’s

shooting.    Because he missed a court date, his bail was revoked.

Muna was ultimately picked up on a warrant and extradited to

Hawaii in February 2013.

            Muna admitted that he gave a statement to the

                                     26
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


detectives on the day of Peneueta’s shooting, which made no

mention of Pasene threatening Ropati with a shotgun, or of Pasene

driving by in the blue Buick.        Upon his extradition, Muna gave a

second statement regarding the events of March 28, 2009, in which

he stated that he saw Pasene threaten Ropati with a gun.              On

cross-examination, defense counsel asked Muna, “you knew that if

you cooperated in a murder case, your attorney could . . . argue
to the judge in your case . . . this guy was helpful to the

State, and . . . a judge could consider that . . . right?”                 Muna

responded: “Yeah.”

          k.     Iosefa Pasene

          Pasene admitted to using the Phone from time to time,

but testified that Fasi owned and paid for the Phone.              Pasene

explained that he used the Phone because Fasi lived nearby, most

of the phone numbers Pasene used were saved on the Phone, and

Fasi had a second phone.      Pasene also admitted to arguing with

Peneueta on the morning of Peneueta’s killing, but he stated that

he had not met Peneueta prior to that occasion and he denied

saying anything like “where I’m from, I shoot, and I shoot to

kill.”

          Pasene testified that although he had driven the blue

Buick sedan on several occasions, he borrowed it from Muna and

believed it belonged to Muna.        According to Pasene, several other

people drove the car, including Muna, Toloai, and Ropati.               Pasene

also testified that he had Fasi’s car, not the blue Buick, when

                                     27
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


he was arrested on March 27, 2009.         Pasene stated that Fasi

picked up the car while he was in custody, leaving him without a

vehicle.    When he realized Fasi’s car wasn’t where he left it,

Pasene asked his cousin for a ride to his girlfriend’s house a

couple blocks away.

            Pasene testified that he gave the Phone and Fasi’s car

keys to his cousin “to give back to Fasi.”           Pasene stated that he
stayed at his girlfriend’s house until around noon, when he got

the Phone back and used it to call Del Rio.           When asked if he

recalled sending a text message from the Phone at 7:47 a.m. on

the day after Peneueta’s killing, which said, “I need a lawyer

because they trying 2 put a hot one on me so don’t talk on da

phone.”    Pasene replied, “I don’t recall that text message.                I

know I didn’t send that text message.”          Pasene denied shooting

and killing Peneueta.

     4.     Jury Instructions

            At the conclusion of the evidence phase of the trial,

the circuit court gave the jury several instructions, including

the following:

            Statements or arguments made by lawyers are not
            evidence. You should consider their arguments to you,
            but you are not bound by their memory or
            interpretation of the evidence.
            . . .
            You must disregard entirely any matter which the Court
            has ordered stricken.
            . . .
            You must not consider in any way nor speculate upon
            the nature or subject matter involved in the alleged
            interactions and the alleged transactions.


                                     28
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


          . . .
          You have heard evidence relating to out-of-court
          identifications of the defendant and other individuals
          made by witnesses to police investigators in this
          case. Some of these identifications reportedly were
          made after viewing a single photograph as opposed to a
          group of photographs presented to the witness. This
          type of identification procedure may be suggestive and
          may or may not affect the reliability of the witness’s
          identification.

     5.   The State’s Closing Argument

          In closing, the DPA summarized the State’s theory of
the case: Pasene shot and killed Peneueta to send a message.                 He

thought he could get away with the killing because the Phone and

the blue Buick sedan were not registered to him.            However, the

State argued, evidence from his meetings and transactions with

undercover Officer Le and eye-witness testimony established his

guilt beyond a reasonable doubt.          Defense counsel objected

several times during the DPA’s closing argument.            Four such

instances are discussed below.

          The DPA stated, “Hall did not have a license [and] had

a social worker. . . .      Now, who benefits if a mentally

handicapped person is the registered owner [of the blue Buick]?”

(Emphasis added).     Defense counsel objected, arguing that the

comment was prejudicial and misstated the evidence.             Finding that

the DPA’s statement made an unfair inference, which “conjures up

a different sort of scenario,” the circuit court sustained the

objection and instructed the jury to “disregard in its entirety

the last statement of the [DPA] that Ms. Hall was . . . mentally


                                     29
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


handicapped.”     It explained that there was no evidence that Hall

was intellectually disabled introduced at trial and further

instructed the jury to “disregard [the DPA’s statement] and not

consider it for any purpose whatsoever.”          Defense counsel moved

for a mistrial.     The motion was denied.

          Later in the State’s closing argument, defense counsel

objected to the DPA’s following statement:
          Cedro Muna was not one of the shooters, but he was one
          of the suspects. The detectives told you that. How
          was he eliminated as a possible shooter? They didn’t
          go on his word. What they did was they told you they
          went to the Chinatown station and they looked at the
          camera, and they saw a person that looked like Cedro
          Muna.

(Emphasis added).

          Defense counsel again moved for a mistrial, as the

circuit court made clear that because the Chinatown surveillance

footage was not admitted into evidence, its contents were

inadmissible.     The circuit court sustained the objection,

provided a cautionary instruction to the jury, and denied

Pasene’s motion for mistrial.        The circuit court proceeded to

admonish the DPA at the bench as follows:

          [T]here was absolutely no evidence with respect to
          what was seen on the video. And your statement during
          closing argument . . . is injecting information that
          was never provided to this jury. . . . I’ve told you
          ad nauseam that you have to confine your arguments and
          questioning during this case to what’s appropriate.
          And for whatever reason, you’re either incapable of
          doing that or you refuse. I’m not sure what it is,
          but there’s no excuse for it.

(Emphasis added).

                                     30
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


          The DPA later stated, “Who else IDs Mr. Pasene?               Darren

the taxi driver.”     Defense counsel objected on the basis that

Darren Kawelolani did not identify Pasene as the driver of the

blue Buick.   Kawelolani testified that he saw the driver on the

news, but did not identify Pasene as that person.             The circuit

court overruled the objection and asked the DPA to make a

clarifying statement.      Accordingly, the DPA stated:
          Darren [Kawelolani] said that he saw the driver, and
          he later . . . recognized that person on the news.
          Cedro Muna, who is sitting directly behind Darren
          [Kawelolani] at that same moment, sees the same blue
          car coming towards the taxi . . . . He recognizes the
          car because he used to be the owner of that car, and
          he recognizes the driver as Iosefa Pasene.

Defense counsel did not object to the DPA’s restatement.

          The DPA commented on the credibility of Sakaria and

Tagataese’s eye-witness testimony by stating, “let’s go to Gabe

[Sakaria] and Richard [Tagataese].         Ask yourself this.       Imagine,

all of you, imagine one of your friends that you’ve known for 20

years . . . .”    Defense counsel objected, arguing that the DPA

improperly asked the jurors to put themselves in the shoes of the

State’s eye-witnesses.      In response to this objection, the

circuit court asked the DPA to rephrase.          The DPA then stated:

          Imagine a person has a friend for over 20 years and
          they’re standing next to him and unexpectedly a car
          stops, two guys jump out, and they shoot him in his
          back and kill him and that’s your good friend. That’s
          your close friend. . . . You, as a friend, would want
          the person who shot your close friend to be held and
          come to justice, so you’re going to tell the truth if
          you’re a friend and he was a friend for over 20 years.



                                     31
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


(Emphases added).

     6.   Pasene’s Closing Argument

          In his closing argument, defense counsel stressed the

presumption of innocence and emphasized that the question before

the jury was whether the State proved beyond a reasonable doubt

that Pasene killed Peneueta.       Defense counsel then highlighted

evidence suggesting Muna, rather than Pasene, may have been one
of Peneueta’s killers: the blue Buick sedan was registered to

Muna before it was put in Hall’s name; Pasene testified that he

borrowed the car from Muna in the weeks leading up to the

shooting; Del Rio testified that Muna tried to use the car as

collateral the day before the shooting; Muna and Pasene had

similar dress and physical attributes on the morning of the

shooting; Muna “act[ed] very strange” the morning of the shooting

by going to the wrong hotel; Del Rio testified that Muna told

her, “Aunty, I shot someone” on the morning of the shooting;

Detective McCormick testified that Muna was one of the three

named suspects; and Muna fled the jurisdiction following the

shooting and only testified that Pasene threatened Ropati with a

gun upon his extradition to Hawaii four years later.

          Defense counsel concluded that the State had failed to

carry its burden of proving beyond a reasonable doubt that Pasene

killed Peneueta.

     7.   The State’s Rebuttal Closing

          The DPA began the State’s rebuttal closing by stating,

                                     32
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


“[defense counsel] had this nice drawing of presumption of

innocence, blah, blah, blah, right, it’s our burden, and we’re

over here and he draws a stick man.”         (Emphasis added).       Defense

counsel objected, but the court overruled the objection.              The DPA

then proceeded to state, “John Gotti, when he goes to trial, he’s

presumed innocent. . . .      Charles [Manson] . . . .”         Defense

counsel objected once more.       The circuit court sustained the
objection and instructed the jury to “disregard the last

statements of the [DPA].”       It also addressed the DPA at the bench

as follows:

          [T]he examples that you’re using, . . . I believe tend
          to have an inflammatory nature about them . . . .
          [W]hen you start injecting the specter of these other
          heinous examples[,] . . . one danger is, is that the
          jury might be led to react either in a more emotional
          other than an objective and unbiased way.

     8.   Motion for Mistrial

          Following the conclusion of the State’s rebuttal

closing, defense counsel renewed his motion for mistrial and

stated the following outside the presence of the jury:

          In each of the three trials, two of the most hotly
          litigated issues [were] . . . whether or not the jury
          would know that [Hall] was mentally handicapped and .
          . . what the detective saw in the [Chinatown
          surveillance] video. . . . After all of that, in
          closing argument, knowing that . . . was nowhere in
          evidence, [the DPA] gets up there and tells the jury
          that [Hall] was mentally handicapped and tells the
          jury that the detective[s] saw Cedro Muna on the
          [Chinatown surveillance] video getting into the ca[b].
          . . . You can’t unring a bell, and [the DPA] knows
          that, and that’s why he told the jury that because now
          it’s in their head.



                                     33
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


           The circuit court denied defense counsel’s motion for

mistrial, but addressed the DPA as follows:

           [I]t is clear that there has been . . . a pattern of
           conduct in this particular case that does one of two
           things. It either implicates a knowing disregard of
           the rules of court and evidence and ethical
           considerations, or it certainly suggests a pattern of
           not complying with those. . . . [I]t certainly at a
           bare minimum would suggest a lack of either
           understanding or an unwillingness or an inability to
           follow certain rules and conventions that attend
           trial.
           . . .
           [B]ased upon what I’ve seen, I think there’s at least
           at a bare minimum a suggestion that your facility with
           either the rules or what is expected of your conduct
           as a trial prosecutor is certainly lacking in some
           regard . . . .

     9.    Jury Verdict

           The jury found Pasene guilty as charged as to both

Murder in the Second Degree and Carrying or Use of Firearm in the

Commission of a Separate Felony.

D.   Post-trial Proceedings and Judgment

           Pasene filed a post-trial motion for mistrial, or in

the alternative for a new trial, alleging prosecutorial

misconduct prejudiced his right to a fair trial.             Pasene argued

that the DPA engaged in improper argument in his opening

statement, “violated countless rules of evidence, rules of

professional conduct, and rules of court” throughout the evidence

portion of the trial, and “on several occasions informed the jury

of facts not in evidence, some of which had been expressly

prohibited by order of [the circuit court]” during his closing


                                      34
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


argument.    Pasene specifically addressed multiple instances of

alleged misconduct, which he later raised on appeal to the ICA

and again on certiorari.      Pasene argued that “[t]he prosecutorial

misconduct throughout [the third] trial, and especially in

closing argument, were not errors made due to inexperience or

lack of the law on the part of the [DPA].           Instead, the

prosecutorial misconduct was calculated and knowingly committed.”
He concluded that, based on the nature of the DPA’s conduct, the

sufficiency of the circuit court’s curative instructions, and the

weakness of the State’s evidence, there was a reasonable

possibility that the DPA’s misconduct might have contributed to

the conviction, and thus the granting of a mistrial or a new

trial was warranted.

            The circuit court denied Pasene’s motion, stating,

“this Court finds and concludes that the State’s conduct was not

improper, and therefore has not risen to the level of misconduct

warranting the granting of [Pasene’s] Motion.”            The circuit court

further concluded that even if the DPA’s conduct was improper,

granting of Pasene’s motion was still unwarranted in light of the

promptness of the circuit court’s curative instructions and the

strength of the State’s evidence.

            The circuit court entered an Amended Judgment of

Conviction and Sentence (Amended Judgment), sentencing Pasene to

concurrent terms of life imprisonment with possibility of parole

for Murder in the Second Degree and twenty years’ imprisonment

                                     35
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


for Carrying or Use of Firearm in the Commission of a Separate

Felony.

           On appeal, the ICA concluded that the circuit court did

not err in: (1) denying Pasene’s Moriwake motion to dismiss; (2)

permitting Detective McCormick to testify regarding the

elimination of Muna as a suspect; (3) admitting the cell phone

site records; (4) admitting evidence of Pasene’s meetings and
transactions with Officer Le; or (5) denying Pasene’s request to

excuse Juror No. 1.     With regard to Pasene’s allegations of

prosecutorial misconduct, the ICA characterized some of the DPA’s

conduct as improper and noted:

           We do not condone or excuse a prosecutor’s conduct in
           making improper remarks in opening statement or
           closing statement or asking improper questions during
           trial. We agree with the Circuit Court that the
           prosecutor’s conduct in this case created issues that
           could easily have been avoided and unnecessarily
           raised the potential for a mistrial.

           However, the ICA concluded that “individually and

cumulatively the [DPA’s] alleged acts of misconduct did not deny

Pasene of a fair trial and do not warrant vacating his

convictions.”    Accordingly, the ICA affirmed the circuit court’s

Amended Judgment.

                             II.   DISCUSSION

           On certiorari, Pasene argues the circuit court abused

its discretion in denying his pre-trial Moriwake Motion to

Dismiss.   He also challenges the circuit court’s rulings

admitting into evidence cell phone site records, testimony

                                     36
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


regarding the meetings and transactions he had with Officer Le,

and testimony regarding the elimination of Muna in the

investigation of Peneueta’s killing.          In addition, Pasene argues

the circuit court abused its discretion and deprived him of a

fair trial in denying his request to excuse Juror No. 1.

Finally, Pasene challenges the denial of his various motions for

mistrial, and his post-trial Motion for Mistrial or New Trial on
the basis of prosecutorial misconduct.

           As discussed below, we conclude that the cumulative

effect of the DPA’s improper conduct was so prejudicial as to

jeopardize Pasene’s right to a fair trial.            We therefore vacate

Pasene’s convictions and remand this case to the circuit court

for further proceedings.

           We affirm the ICA’s Memorandum Opinion with regard to

all other issues raised on appeal.

A.   The Circuit Court Did Not Abuse its Discretion in Denying
     Pasene’s Pre-trial Moriwake Motion to Dismiss

           Dismissing an indictment with prejudice following one

or more hung-jury mistrials is a proper exercise of a trial

court’s power to administer justice.          Moriwake, 65 Haw. at 55,

647 P.2d at 712.     Determining whether an indictment should be

dismissed with prejudice following the declaration of one or more

mistrials is “a matter of balancing the interest of the state

against fundamental fairness to a defendant with the added

ingredient of the orderly functioning of the court system.”                   Id.


                                      37
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


at 56, 647 P.2d at 712 (citing State v. Braunsdorf, 297 N.W.2d

808, 817 (Wis. 1980)).

          After his first two trials resulted in hung-jury

mistrials, Pasene filed a Moriwake motion to dismiss his

indictment with prejudice.       Citing to specific facts in the

record, the circuit court considered each of the factors set

forth in Moriwake and acknowledged the need to “balance
[Pasene’s] rights against . . . the interest of the State in

pursuing a prosecution for yet a third time.”            The circuit court

determined that the only Moriwake factor weighing in favor of

dismissal was the character of the prior trials in terms of

length, complexity and similarity of evidence presented.              It

denied Pasene’s motion to dismiss accordingly.

          We review a trial court’s ruling on a motion to dismiss

an indictment for an abuse of discretion.           State v. Hinton, 120

Hawaii 265, 273, 204 P.3d 484, 492 (2009) (citing State v. Akau,

118 Hawaii 44, 51, 185 P.3d 229, 236 (2008)).           A trial court

abuses its discretion when it “clearly exceeds the bounds of

reason or disregards rules or principles of law or practice to

the substantial detriment of a party litigant.”            State v. Wong,

97 Hawaii 512, 517, 40 P.3d 914, 919 (2002) (citing State v.

Klinge, 92 Hawaii 577, 584, 994 P.2d 509, 516 (2000)).             “The

burden of establishing [an] abuse of discretion is on appellant,

and a strong showing is required to establish it.”             Id. (citing

State v. Kupihea, 80 Hawaii 307, 312, 909 P.2d 1122, 1127

                                     38
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


(1996)).

           It is undisputed that the first Moriwake factor - the

severity of the offenses charged - weighs against dismissal.

Reasonable minds might differ regarding whether the second

Moriwake factor - the number of prior mistrials and the

circumstances of the jury deliberation therein - weighs against

dismissal.   On one hand, like in Moriwake, there were two hung
jury mistrials in the instant case, seemingly cutting in favor of

dismissal.   On the other hand, the final jury tally varied

significantly between the first and second trials, and as the

circuit court noted, each jury is different.           Thus, it cannot be

said that the circuit court’s determination that this factor

weighs against dismissal clearly exceeds the bounds of reason.

           As for the third Moriwake factor - the character of

prior trials in terms of length, complexity and similarity of

evidence presented - the record substantiates the circuit court’s

determination that the first two trials were of similar duration

and complexity.    It also appears the State put its best case

forward in each trial, and there is no indication in the record

that any new evidence would be presented in a third trial,

weighing in favor of dismissal.

           With regard to the fourth Moriwake factor - the

likelihood of any substantial difference in a subsequent trial -

it is apparent that the acquittal of co-defendant Rye would

likely affect the third trial by allowing the State to narrow the

                                     39
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


scope of its argument and the evidence presented in order to

focus its case on Pasene’s prosecution.           This supports the

circuit court’s conclusion that the fourth Moriwake factor weighs

against dismissal.

           The circuit court determined that the fifth Moriwake

factor - its own evaluation of relative case strength - weighed

against dismissal.      It cannot be said that the circuit court
abused its discretion in making this determination.              Similarly,

deference to the circuit court’s evaluation of the remaining

Moriwake factor - the professional conduct and diligence of

respective counsel, particularly that of the prosecuting attorney

- is appropriate.

           The circuit court’s denial of Pasene’s Moriwake motion

to dismiss was thus based on careful evaluation of each of the

Moriwake factors, and supported by facts in the record.               As such,

Pasene has failed to make the requisite strong showing that the

circuit court clearly exceeded the bounds of reason or

disregarded rules or principles of law or practice.              Accordingly,

the circuit court did not abuse its discretion in denying

Pasene’s pre-trial motion to dismiss.

B.   The Circuit Court Did Not Err in Admitting the Cell Phone
     Site Records Into Evidence

           Pursuant to HRE Rule 803(b)(6):

           A memorandum, report, record, or data compilation, in
           any form, of acts, events, conditions, opinions, or
           diagnoses, made in the course of a regularly conducted
           activity, at or near the time of the acts, events,

                                      40
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


            conditions, opinions, or diagnoses, as shown by the
            testimony of the custodian or other qualified witness
            . . . [is not excluded by the hearsay rule], unless
            the sources of information or other circumstances
            indicate lack of trustworthiness.10

            Pasene filed Motion in Limine No. 3, seeking to exclude

from evidence cell phone site records associated with the Phone

on the grounds that the State did not lay a sufficient foundation

to show the records met the requirements of HRE Rule 803(b)(6).
            The circuit court denied Pasene’s motion and allowed

the cell phone site records to be admitted into evidence as a

business record under HRE Rule 803(b)(6).            As set forth below, we

conclude that the cell phone site records can properly be

admitted into evidence under HRE Rule 803(b)(6), and that the

circuit court did not abuse its discretion in admitting the


      10
            The federal counterpart to HRE Rule 803(b)(6), Federal Rules of
Evidence (FRE) Rule 803(6), provides:
            A record of an act, event, condition, opinion, or diagnosis [if
            not excluded by the rule against hearsay, regardless of whether
            the declarant is available as a witness] if:
            (A)   the record was made at or near the time by - or from
                  information transmitted by - someone with knowledge;
            (B)   the record was kept in the course of a regularly conducted
                  activity of a business, organization, occupation, or
                  calling, whether or not for profit;
            (C)   making the record was a regular practice of that activity;
            (D)   all these conditions are shown by the testimony of the
                  custodian or another qualified witness, or by a
                  certification that complies with Rule 902(11) or (12) or
                  with a statute permitting certification; and
            (E)   the opponent does not show that the source of information or
                  the method or circumstances of preparation indicate a lack
                  of trustworthiness.

We note that “[a]lthough cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules
of Evidence.” State v. Fitzwater, 122 Hawaii 354, 366 n.7, 227 P.3d 520, 532
n.7 (2010).

                                      41
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


records based on its determination that there were no indicia of

a lack of trustworthiness.

     1.    The Cell Phone Site Records Can Properly be Admitted
           Into Evidence Under HRE Rule 803(b)(6)

           The circuit court found the cell phone site records

were admissible under HRE Rule 803(b)(6)’s business records

exception to the hearsay rule.        We review the admissibility of

hearsay evidence under the right/wrong standard.            State v.
Fitzwater, 122 Hawaii 354, 362, 227 P.3d 520, 528 (2010)

(citations omitted).

           The circuit court qualified Monaco, Mobi’s custodian of

records, as an expert in cell phone technology and the technique

of locating and plotting origins of cell phone calls using cell

phone records.    Monaco testified that Mobi maintains call records

and a cell site database in the regular course of its business.

Monaco further testified that Mobi relies on its call records and

cell site database in its regular billing, maintenance, and

repair operations and their accuracy is important to Mobi.

           Monaco explained that he produced the cell phone site

records using a program that he created.          When prompted by

Monaco, the program compiled information from Mobi’s call records

and a cell site database.       Monaco stated that the process

performed by the program is simple enough to be done manually,

and was in fact done manually prior to the creation of his

program.   He further testified that Mobi utilizes the same


                                     42
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


process in the course of its regularly-conducted troubleshooting

and quality-control activities.

          Pasene argues that the cell phone site records were

inadmissible under HRE Rule 803(b)(6) because they were compiled

using a computer program pursuant to a subpoena, and were

therefore not created in the regular course of Mobi’s business.

However, HRE Rule 803(b)(6) does not require that a compilation
of data be produced in the regular course of business at or near

the time of the events recorded, provided that the underlying

data used to generate the compilation was so produced.              See,

e.g., United States v. Loney, 959 F.2d 1332, 1340-41 (5th. Cir.

1992) (a 35-page compilation of computer records was admissible

as a business record because the underlying data was admissible);

United States v. Russo, 480 F.2d 1228, 1240 (6th Cir. 1973) (“It

would restrict the admissibility of computerized records too

severely to hold that the computer product as well as the input

upon which it is based, must be produced at or within a

reasonable time after each act or transaction to which it

relates.”); United States v. Fujii, 301 F.3d 535, 539 (7th Cir.

2002) (“Computer data compiled and presented in computer

printouts prepared specifically for trial is admissible under

[FRE] Rule 803(6), even though the printouts themselves are not

kept in the ordinary course of business.”) (emphasis in

original); U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576

F.3d 1040, 1043 (9th Cir. 2009) (“evidence that has been compiled

                                     43
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


from a computer database is also admissible as a business record,

provided it meets the criteria of [FRE] Rule 803(6)”); United

States v. Hernandez, 913 F.2d 1506, 1512 (10th Cir. 1990)

(“Computer data compilations may constitute business records for

purposes of [FRE] Rule 803(6), and may be admitted at trial if a

proper foundation is established.”) (citation, internal quotation

marks and brackets omitted).
          Here, the data underlying the cell phone site records

was admissible pursuant to HRE Rule 803(b)(6) because it was

produced in the ordinary course of Mobi’s business, at or near

the time of the events recorded.          Thus, the fact that the cell

phone site records are a compilation of that data produced by a

computer program does not render the records inadmissible.

          Moreover, the fact that the cell phone site records

were produced by the program only when prompted by a human query

does not destroy the records’ admissibility under HRE Rule

803(b)(6).   A record containing underlying data that meets HRE

Rule 803(b)(6)’s requirements for admissibility is not rendered

inadmissible simply because it is produced by human query.               See

People v. Zavala, 156 Cal. Rptr. 3d 841, 846-47 (Cal. Ct. App.

2013) (call records were not inadmissible simply because they

were produced by human query, where the underlying data was

recorded and stored by a reliable computer system at or near each

time a user made a phone call).        Because the cell phone site

records at issue are a compilation of two sets of admissible

                                     44
      *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


data, they can properly be admitted into evidence under HRE Rule

803(b)(6).11

      2.    The Circuit Court Did Not Abuse its Discretion in
            Admitting the Cell Phone Site Records Into Evidence

            “A record that is otherwise admissible under HRE Rule

803(b)(6) may nevertheless be inadmissible if the sources of

information or other circumstances indicate a lack of

trustworthiness.”       Fitzwater, 122 Hawaii at 363, 227 P.3d at 529
(internal quotation marks and brackets omitted).              The circuit

court found “no indication whatsoever that [the cell phone site

records] lack trustworthiness in any way” and admitted them into

evidence.     We review a circuit court’s determination as to the

trustworthiness of hearsay evidence for an abuse of discretion.

Id.

            Monaco, Mobi’s custodian of records, was qualified by

the circuit court as an expert witness without objection by

defense counsel.      He had personal knowledge of the information

contained in the records and the process by which they were

produced, and was available for cross-examination.               Monaco

testified that the data contained in Mobi’s call records is

automatically generated by Mobi’s switch every time a phone call

is made on its system.        See Commonwealth v. McEnany, 732 A.2d

      11
            Although not relied upon by the circuit court, we note that the
cell phone site records also could have been admitted under HRE Rule 1006.
See Loney, 959 F.2d at 1341 (Where the underlying data is admissible under the
business records exception, but is voluminous and cannot conveniently be
examined in court, a summary, compilation, or calculation of that data can be
admitted under FRE Rule 1006).

                                       45
       *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


1263, 1273 (Pa. Super. Ct. 1999) (call records systematically and

contemporaneously created by a computer system in the regular

course of business were admissible despite the fact that they

were translated from binary code to English for purposes of

trial).     Monaco also testified as to the switch’s accuracy,

stating that the switch’s manufacturer guaranteed it to work

“99.999 percent of the time.”           He added that the switch is fully
redundant and alarmed in order to prevent errors and to alert the

operator if any errors do occur.

             Mobi had no apparent interest in the disposition of

this case and the records were produced in a non-adversarial

setting without “the motivation of prevailing against a

particular party.”        Fitzwater, 122 Hawaii at 364, 227 P.3d at

530.    Further, there is no evidence or allegation of bias,

tampering, or falsification on the part of Mobi or Monaco with

regard to the cell phone site records, the process by which they

were produced, or the underlying sources of information.

             The fact that the cell phone site records were produced

in response to a subpoena issued by law enforcement does not

preclude them from being admitted into evidence as a business

record under HRE Rule 803(b)(6).             We have recognized that “[w]hen

records are prepared in anticipation of litigation, they will

often, but not always, demonstrate [a] lack of trustworthiness.”

Id. at 363, 227 P.3d at 529 (emphasis added) (citing 2 Kenneth S.

Broun et al., McCormick on Evidence § 288 at 312 (6th ed. 2006)).

                                        46
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


However, despite the fact that the cell phone site records may

have been produced for the purpose of prosecuting this case, the

sources of information underlying the records and the

circumstances by which they were produced do not indicate a lack

of trustworthiness.      Thus, the fact that the cell phone site

records were produced pursuant to a subpoena does not deprive

them of their business-record character.           Fujii, 301 F.3d at 539.
            Pasene fails to establish that “the source of

information or the method or circumstances of preparation

indicate lack of trustworthiness.”          See id. (the trial court did

not abuse its discretion in admitting check-in and reservation

records where defendant failed to establish that “the source of

information or the method or circumstances of preparation

indicate lack of trustworthiness”).          We therefore conclude that

the circuit court did not abuse its discretion in finding the

cell phone site records to be trustworthy and admitting the

records under HRE Rule 803(b)(6).12

C.    The Circuit Court Did Not Abuse its Discretion in Admitting
      Evidence of Pasene’s Meetings and Transactions With Officer
      Le

            Relevant evidence may be excluded pursuant to HRE Rule

403 “if its probative value is substantially outweighed by the



      12
            Pasene’s other arguments regarding the admissibility of the cell
phone site records similarly lack merit. Monaco’s testimony was sufficient to
satisfy the foundational requirements of Montalbo, 73 Haw. 130, 828 P.2d 1274,
and concerns regarding the accuracy of the locations reflected in the records
go to the weight of the records, rather than their admissibility.

                                      47
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


danger of unfair prejudice[.]”        Pasene filed Motion in Limine No.

4, seeking to exclude testimony regarding various meetings and

transactions he had with Officer Le under HRE Rule 403.

            The circuit court granted in part and denied in part

the motion, allowing Officer Le to testify regarding the meetings

and transactions, but precluding “any mention of drugs, money or

money transactions.”     A trial court’s balancing of the probative
value of relevant evidence against the prejudicial effect of such

evidence under HRE Rule 403 is reviewed for an abuse of

discretion.    State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516

(1992).

            Officer Le’s testimony was relevant to connecting

Pasene to the Phone and the blue Buick sedan by showing that: (1)

Pasene used the Phone on several occasions in the weeks leading

up to Peneueta’s killing and on an additional occasion two days

after the killing; and (2) Pasene used the blue Buick sedan on

four or five occasions prior to the killing.           The testimony also

carries an inherent risk of prejudice, as the jury could infer

that Pasene’s meetings and transactions with Officer Le involved

the sale of drugs or other bad acts.

            It is apparent from the hearing transcript that, as a

result of such weighing, the circuit court granted in part and

denied in part Pasene’s Motion in Limine No. 4 in order to reduce

the testimony’s prejudicial effect while retaining its probative

value.    “[T]he determination of the admissibility of relevant

                                     48
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


evidence under HRE 403 is eminently suited to the trial court’s

exercise of its discretion . . . .”          State v. Behrendt, 124

Hawaii 90, 108, 237 P.3d 1156, 1174 (2010) (citation omitted).

The record reflects that the circuit court properly exercised its

discretion in order to preserve the probative value of Officer

Le’s testimony and reduce its prejudicial effect.              Therefore, the

circuit court’s determination that the probative value of the
testimony permitted was not substantially outweighed by the

danger of unfair prejudice does not clearly exceed the bounds of

reason or otherwise constitute an abuse of discretion.

            We affirm the ICA’s determination that the circuit

court’s ruling admitting evidence of Pasene’s meetings and

transactions with undercover Officer Le does not constitute an

abuse of discretion, and shall be left undisturbed.

D.    The Circuit Court Did Not Abuse its Discretion in Allowing
      Officer McCormick to Testify Regarding the Elimination of
      Muna as a Suspect

            The circuit court permitted Detective McCormick to

testify that Muna was eliminated as a suspect in the

investigation of Peneueta’s killing, in part, due to his review

of the Chinatown surveillance footage, which was not in

evidence.13   Pasene argues this testimony is inadmissible under


      13
            As a preliminary matter, we note that the testimony Pasene now
challenges comports with a proposition that the circuit court made at the
bench, to which defense counsel acquiesced. Defense counsel stated at the
bench that it would be fine for Detective McCormick to testify that “he viewed
the [Chinatown surveillance] video and that based on what he viewed in the
video, that essentially Mr. Muna was cleared.”

                                      49
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


HRE Rule 701 (2016), as it constitutes lay opinion that Muna was

innocent and, in any event, is inadmissible under HRE Rule 403,

as the danger of unfair prejudice substantially outweighs its

probative value.

           First, as set forth below, Detective McCormick’s

testimony does not constitute lay opinion testimony subject to

the restrictions of HRE Rule 701.          Second, the circuit court did
not abuse its discretion under HRE Rule 403 in allowing the

testimony.

     1.    Lay Opinion Testimony - HRE Rule 701

           Under HRE Rule 701, lay opinion testimony is only

admissible if it is: (1) rationally based on the perception of

the witness; and (2) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue.

“[A]dmission of opinion testimony is a matter within the

discretion of the trial court, and only an abuse of that

discretion can result in reversal.”          State v. Toyomura, 80

Hawaii 8, 23-24, 904 P.2d 893, 908-09 (1995) (original brackets

omitted) (quoting State v. Tucker, 10 Haw. App. 73, 89, 861 P.2d

37, 46 (1993)).

           We need not apply the standard for admissibility of lay

opinion testimony, as the testimony at issue does not constitute

opinion.     Opinions are “beliefs, conclusions, and inferences that

are distinguishable from facts.”          Addison M. Bowman, Hawaii

Rules of Evidence Manual § 701-1[1], at 7-1 (2018-19 ed.).

                                     50
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Detective McCormick and Detective Coons - the lead homicide

detective and the scene detective assigned to investigate

Peneueta’s killing - both testified that their review of the

Chinatown surveillance footage contributed to the elimination of

Muna as a suspect in their investigation.            This is a fact, rather

than a belief, conclusion, or inference.           As such, this testimony

does not constitute inadmissible lay opinion testimony that Muna
was innocent.

      2.    Probative Value and Unfair Prejudice - HRE Rule 403

            Relevant evidence may be excluded pursuant to HRE Rule

403 “if its probative value is substantially outweighed by the

danger of unfair prejudice[.]”         The circuit court determined that

the testimony in question was probative to explain the steps that

HPD detectives took in order to fully investigate Peneueta’s

shooting, and permitted Detective McCormick’s testimony regarding

the elimination of Muna as a suspect.14          A trial court’s

balancing of the probative value of relevant evidence against the

prejudicial effect of such evidence under HRE Rule 403 is

reviewed for an abuse of discretion.          Klafta, 73 Haw. at 115, 831

P.2d at 516.

            Testimony describing the actions a police officer took

during the course of an investigation may be admitted into


      14
            The circuit court explained at the bench: “[T]he fairness of the
investigation, whether it’s full and fair and what decisions were made in the
course of the investigation, whether to focus on one or more individuals and
to exclude others is something for the jury to consider.”

                                      51
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


evidence.    See State v. Feliciano, 2 Haw. App. 633, 636-67, 638

P.2d 866, 869-70 (1982) (hearsay statements may be admissible if

they are offered to explain a police officer’s conduct during an

investigation leading up to the defendant’s arrest).              Even if the

testimony at issue were stricken, it would be apparent from other

facts in evidence that Muna was eliminated as a suspect in the

investigation, and that the Chinatown surveillance footage was
one of many pieces of evidence considered by the detectives in

ruling Muna out.     The testimony therefore poses little danger of

unfair prejudice.      Because the danger of unfair prejudice does

not substantially outweigh the testimony’s probative value, the

circuit court did not exceed the bounds of reason or otherwise

abuse its discretion in admitting the testimony at issue.

E.   The Circuit Court Did Not Abuse its Discretion in Denying
     Pasene’s Request to Excuse Juror No. 1

            Pursuant to Hawaii Rules of Penal Procedure (HRPP)

Rule 24(c), it is within the trial court’s discretion to “replace

jurors who, prior to the time the jury retires to consider its

verdict, become or are found to be unable or disqualified to

perform their duties.”       See State v. Jones, 45 Haw. 247, 262, 365

P.2d 460, 468 (1961) (“The rule is universally recognized that

the matter of excusing trial jurors lies in the discretion of the

trial judge.”).     Pasene asked the circuit court to excuse Juror

No. 1, arguing that the juror’s interaction with Officer Le

demonstrated an unwillingness or inability to follow the circuit


                                      52
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


court’s instructions.

          The circuit court denied Pasene’s request, finding

nothing about the juror’s interaction with Officer Le “remotely

touched upon the facts in this case,” and concluding that the

interaction was therefore “fairly innocuous.”            We will not

interfere with a trial court’s ruling on a request to excuse a

juror unless “it patently appears” that: i) the ruling
constituted an abuse of discretion; and ii) the defendant was

denied a fair trial as a result.          State v. Crisostomo, 94 Hawaii

282, 287, 12 P.3d 873, 878 (2000) (citing Jones, 45 Haw. at 262,

365 P.2d at 468).

          Upon notification of their interaction, the circuit

court individually questioned Juror No. 1 and Officer Le as to

the substance and scope of the encounter.           The circuit court then

sought and obtained specific assurances from Juror No. 1 that the

encounter would not affect the way he looked at the evidence or

the application of the law, or otherwise affect his ability to

serve as a juror.     Finally, the circuit court allowed the DPA and

defense counsel an opportunity to question Officer Le and Juror

No. 1, and asked if either thought an inquiry with Juror No. 2

would be appropriate.

          “The circuit court is in a better position than the

appellate court to ascertain from the answers of the juror

whether the juror is able to be fair and impartial.”             State v.

Mark, 120 Hawaii 499, 537-38, 210 P.3d 22, 60-61 (App. 2009)

                                     53
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


(quoting State v. Cardus, 86 Hawaii 426, 438, 949 P.2d 1047,

1059 (App. 1997)) (internal quotation marks omitted).               Because

the record reflects that the circuit court denied Pasene’s

request to excuse Juror No. 1 upon reasoned consideration

following proper inquiry, the circuit court’s ruling did not

clearly exceed the bounds of reason or disregard rules or

principles of law or practice.         Thus, the circuit court did not
abuse its discretion in denying Pasene’s request to excuse Juror

No. 1.

F.   The Circuit Court Abused its Discretion in Denying Pasene’s
     Post-trial Motion for Mistrial or New Trial Based on
     Prosecutorial Misconduct

           “Prosecutorial misconduct may provide grounds for a new

trial if the prosecutor’s actions denied the defendant a fair

trial.”   State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502

(1992) (citing State v. Pemberton, 71 Haw. 466, 796 P.2d 80

(1990).   At trial, defense counsel made several motions for

mistrial due to prosecutorial misconduct.            Pasene also filed a

post-trial motion for mistrial, or in the alternative for a new

trial, alleging prosecutorial misconduct prejudiced his right to

a fair trial.     All of these motions were denied by the circuit

court.

           The denial of a motion for mistrial or new trial “is

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

upset absent a clear abuse of discretion.”            State v. Furutani, 76

Hawaii 172, 178-79, 873 P.2d 51, 57-58 (1994) (citations

                                      54
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


omitted).    “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.”              Klinge,

92 Hawaii at 584, 994 P.2d at 516 (quoting State v. Rogan, 91

Hawaii 405, 412, 984 P.2d 1231, 1238 (1999)) (internal quotation
marks omitted).

            In reaching this determination, we consider the

following factors: (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.   Moreover,

            [Even where] no single misstatement or other erroneous
            remark standing alone would have sufficient
            prejudicial weight to deprive the defendant of a fair
            trial, the cumulative weight of such errors may create
            an atmosphere of bias and prejudice which no remarks
            by the trial court could eradicate. On appeal we must
            determine whether 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 the prejudicial remarks
            harmless.

State v. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336, 338 (1973)

(citation and internal quotation marks omitted).

            Although each instance of the DPA’s improper conduct,

when examined in isolation, may not rise to the level of

misconduct warranting the vacation of Pasene’s convictions, as

set forth below, the cumulative effect of the DPA’s improper

conduct was so prejudicial as to deprive Pasene of a fair trial.

                                     55
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


See Klinge, 92 Hawaii at 596, 994 P.2d at 528.

     1.   Nature of the Conduct and Promptness of the Circuit
          Court’s Curative Instructions

          Below, we discuss the first two factors in our analysis

of prosecutorial misconduct together, highlighting the most

significant instances of the DPA’s improper conduct.             Under the

first factor, we consider “the nature of the challenged conduct

in relation to our criminal justice system generally and the
special role of the prosecutor specifically.”            State v.

Underwood, 142 Hawaii 317, 325, 418 P.3d 658, 666 (citing Rogan,

91 Hawaii at 412-15, 984 P.2d at 1238-41).          With regard to the

second factor,

          [We consider] the extent to which a trial court’s
          instruction to the jury minimized or eliminated the
          prejudicial effect of misconduct. Rogan, 91 Hawaii
          at 415, 984 P.2d at 1241. When a court promptly
          addresses the impropriety, “a prosecutor’s improper
          remarks are [generally] considered cured by the
          court’s instructions to the jury, because it is
          presumed that the jury abided by the court’s
          admonition to disregard the statement.” Id. (quoting
          State v. McGriff, 76 Hawaii 148, 160, 871 P.2d 782,
          794 (1994)) (alteration in original).

Underwood, 142 Hawaii at 327, 418 P.3d at 668.

          Much like in Pemberton, the record in the instant case

is replete with examples of the DPA's persistent failure -

whether willful or inadvertent - to abide by the circuit court’s

instructions, our case law and rules regarding the ethical

responsibilities of the prosecutor, and the American Bar

Association’s Criminal Justice Standards for the Prosecution.                71


                                     56
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Haw. 466, 796 P.2d 80.       The DPA’s improper statements pervaded

every phase of trial, prompting defense counsel to object

repeatedly.    Some of these statements were particularly

prejudicial, as they injected facts not in evidence that directly

contradicted Pasene’s core theory of the case, or served to

denigrate fundamental constitutional protections guaranteed to

criminal defendants.
            Although the circuit court was diligent in its efforts

to sustain defense counsel’s objections and to promptly issue

curative instructions to the jury where necessary, there were

occasions where the circuit court failed to sustain defense

counsel’s objections to improper statements by the DPA, and

failed to issue necessary curative instructions.             Additionally,

“the fact that defense counsel was repeatedly forced to object

and the court repeatedly forced to sustain those objections and

to issue cautionary instructions is likely to have had the . . .

effect of focusing the jury’s attention on that evidence and the

fact that it was being suppressed.”          Pemberton, 71 Haw. at 476,

796 P.2d at 85 (citation omitted).15

            As such, with regard to the first two factors in our

analysis of prosecutorial misconduct, we conclude the circuit

court’s efforts were insufficient to eliminate the prejudicial



      15
            The circuit court acknowledged that evidence may be prejudicial
despite a prompt curative instruction, when it stated that it may be “easier
said than done” for the jury to disregard stricken testimony.

                                      57
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


effect of the DPA’s improper conduct.

          a.     The State’s Opening Statement

          “An opening statement merely provides an opportunity

for counsel to advise an 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) (citations omitted).              It is

not an opportunity to present argument, nor is it an opportunity
to inject evidence that is otherwise inadmissible.             See State v.

Sanchez, 82 Hawaii 517, 528, 923 P.2d 934, 945 (App. 1996).

          The circuit court sustained six objections during the

State’s opening statement on the basis of improper argument.                 The

circuit court stated at the bench, “I’ve sustained many

appropriate objections raised at this point.           You know what

argument is.   You are engaging in argument.          Do not do that.”

Yet, the DPA’s improper use of argument persisted.             Although the

repetitive nature of this conduct is concerning, the DPA’s

argumentative statements were relatively innocuous and the

circuit court properly sustained defense counsel’s objections.

Thus, this improper conduct was not particularly prejudicial.

          Significantly, however, the DPA also stated, “the

Chinatown cameras were able to capture Mr. Muna getting into the

taxi . . . and the timing allowed the police to eliminate Mr.

Muna as a suspect, because as the car . . . was driving away

. . . shots were heard.”      Defense counsel objected to the DPA’s

statement and the circuit court admonished the DPA at the bench,

                                     58
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


questioning whether his conduct was “just inadvertent,” or

whether he was “blatantly disregarding the Court’s - the rulings

about the limitations of opening statement.”            However, the

circuit court did not sustain or overrule the objection, or issue

a curative instruction.

             As mentioned above, the Chinatown surveillance footage

referenced in this statement was not admitted at trial, and as a
result, the circuit court prohibited the State from introducing

evidence of its content.          Thus, the DPA’s statement improperly

injected evidence that was not properly put before the jury.                  The

prejudicial nature of this statement is especially concerning, as

it asserted that video evidence directly contradicted Pasene’s

mistaken identity theory of the case - that Muna may have been

the driver of the blue Buick who shot Peneueta.16

             The DPA’s comment was not corrected by the circuit



      16
             We note that video evidence can be particularly persuasive:
             The persuasive power of videotape evidence . . . [is]
             intuitively obvious: If a picture is worth a thousand
             words, then how much more is a moving picture worth[?]
             . . .
             In the case of contemporaneous evidence, videotape is
             unmatched in its ability to capture the nuances of the
             setting and events that transpired.
             . . .
             [T]here is a strong tendency, for those who are used
             to television as the primary medium for gaining news
             and other information, to believe that any information
             imparted via television is true. . . . Thus, jurors
             may leap from the likely accuracy of the fact or
             circumstance depicted in a videotape to a relatively
             undiscriminating acceptance of inferences that are
             claimed to be supported by the evidence . . . .

JORDAN S. GRUBER, 44 AM. JUR. TRIALS 171 § 42 (1992).

                                          59
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


court.   Thus, the prejudicial effect of the improper statement

was not sufficiently cured.

            Defense counsel moved for a mistrial following the

conclusion of the State’s opening statement “based on [the DPA’s]

continuous and pervasive use of argument during his opening

statement.”      The circuit court denied the motion, but put the DPA

“clearly on notice,” warning him as follows:
            [T]he fact that we’re in a third trial . . . should
            certainly be clear to everybody and that we want to
            make sure that everything is done as appropriately and
            properly as possibly can be. You want a fair trial.
            Mr. Pasene deserves a fair trial, as well. And
            playing fast and loose with, perhaps, some of the
            rules or conventions of court really is not going to
            serve you well if you choose to do that. . . . [G]oing
            forward I will full well expect you to conduct
            yourself in a manner that I believe you are entirely
            capable of doing, without the need to inject improper
            statements, comments, or what have you.

(Emphasis added).

            b.    Evidence Phase of Trial

            “Leading questions should not be used on the direct

examination of a witness except as may be necessary to develop

the witness’ testimony.”       HRE Rule 611(c) (2016).        It is

undisputed by the State that the DPA improperly posed leading and

argumentative questions to Sakaria on redirect.            However, in each

of the four instances raised on appeal, the circuit court

sustained defense counsel’s objection.          After sustaining the

first objection, the circuit court asked the DPA to rephrase his

question.     After sustaining the second objection, the circuit


                                     60
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


court struck the question from the record.           After the circuit

court sustained the third objection, the DPA offered to rephrase

his question and the court asked him to “put the question to the

witness in a non-leading manner.”         After the circuit court

sustained the fourth objection, the DPA concluded his redirect

examination.

          Defense counsel again moved for a mistrial, arguing
that the DPA’s improper conduct was depriving Pasene of a fair

trial, despite the circuit court’s efforts to sustain his

objections and issue curative instructions.           The circuit court

denied the motion, but again warned the DPA:

          I’m here to tell you that you need to give some
          thought to how you intend to proceed during the
          balance of this trial, because in the end the record
          is going to bear out what it does and I make no
          promises with respect to how I choose to address those
          particular circumstances. At this point two motions
          have been made; they’re denied. And –- but going
          forward, Mr. Pasene is entitled to a fair trial.
          You’re entitled to a fair trial. But when we start
          injecting these types of completely unavoidable
          circumstances into the case, it really does no one any
          good, and it does not further the search for the truth
          and the decision that this jury has to make. So I’m
          telling you as straight as I possibly can. You need
          to be a lot clearer and more circumspect in terms of
          the form of the questions you pose.

          We generally "consider a curative instruction

sufficient to cure prosecutorial misconduct because we presume

that the jury heeds the court's instruction to disregard improper

prosecution comments."      State v. Wakisaka, 102 Hawaii 504, 516,

78 P.3d 317, 329 (2003) (citation omitted).           Here, the circuit


                                     61
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


court acted properly to promptly sustain each of defense

counsel’s objections and to issue curative instructions where

necessary.       As such, the circuit court’s actions were sufficient

to cure the impropriety of the DPA’s conduct.

            c.     The State’s Closing Argument

            A prosecutor is allowed wide latitude in discussing the

evidence during closing argument.         Rogan, 91 Hawaii at 412, 984
P.2d at 1238.      Prosecutors may “state, discuss, and comment on

the evidence as well as draw all reasonable inferences from the

evidence.”       Id. (citations omitted).    “In other words, closing

argument affords the prosecution . . . the opportunity to

persuade the jury that its theory of the case is valid, based

upon the evidence adduced and all reasonable inferences that can

be drawn therefrom.”      Id. at 413, 984 P.2d at 1239 (citation

omitted).

            However, this latitude is not without limit.            “[T]he

scope of [the prosecutor’s] argument must be consistent with the

evidence and marked by the fairness that should characterize all

of the prosecutor’s conduct.”        Id. (quoting ABA Prosecution

Function Standard 3-5.8(a)).       “A prosecutor exceeds the

acceptable scope of closing argument when a statement cannot be

justified as a fair comment on the evidence but instead is more

akin to the presentation of wholly new evidence to the jury,

which should only be admitted subject to cross-examination, to

proper instructions and to the rules of evidence.             Underwood, 142

                                     62
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Hawaii at 326, 418 P.3d at 667 (quoting State v. Basham, 132

Hawaii 97, 112, 319 P.3d 1105, 1120 (2014) (internal quotation

marks omitted).

                  i.   Sylvia Hall

           With regard to Hall, the DPA stated, “who benefits if a

mentally handicapped person is the registered owner [of the blue

Buick]?”   In response to defense counsel’s objection, the circuit
court instructed the jury to disregard the DPA’s statement.                  At

the bench, the circuit court explained to the DPA that there was

no evidence in the record that Hall was intellectually disabled,

and opined that the DPA’s statement made an unfair inference that

“conjures up a different sort of scenario.”           Defense counsel

again moved for a mistrial, but the motion was denied.              Following

conclusion of the conference, the circuit court reminded the jury

that “the Court sustained the objection, instructed you to

disregard in its entirety the last statement of the [DPA] that

Ms. Hall was . . . mentally handicapped.          There was no evidence

of the kind introduced at trial, so you will disregard that and

not consider it for any purpose whatsoever.”

           The DPA’s statement was improper, as it presents new

and unsupported evidence to the jury.          The statement poses

further danger of prejudice to Pasene’s defense as it implies not

only that Hall was intellectually disabled, but also that someone

- perhaps Pasene - took advantage of that disability in order to

avoid culpability for criminal activity.          However, the

                                     63
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


statement’s prejudicial effect was sufficiently negated by the

circuit court’s prompt and thorough curative instruction.

                 ii.   Chinatown Surveillance Footage

          “A prosecutor’s comment on matters outside the evidence

is improper.”    State v. Walsh, 125 Hawaii 271, 290-91, 260 P.3d

350, 369-70 (2011) (quoting State v. Tuua, 125 Hawaii 10, 14,

250 P.3d 273, 277 (2011)) (internal quotation marks omitted).
Similar to his improper comment in the State’s opening statement,

in the State’s closing argument, the DPA asserted that detectives

McCormick and Coons eliminated Muna as a suspect because “they

went to the Chinatown station and they looked at the camera, and

they saw a person that looked like Cedro Muna[.]”             The circuit

court sustained defense counsel’s objection and admonished the

DPA at the bench as follows:

          [T]here’s no evidence . . . of what they saw on the
          video. There’s evidence that the video was viewed,
          and that was part of the evidence or information they
          used to essentially continue their investigation
          further, but there was absolutely no evidence with
          respect to what was seen on the video. And your
          statement during closing argument . . . is injecting
          information that was never provided to this
          jury. . . .

          [Y]ou have to confine your arguments to the evidence
          that’s been adduced. . . .

          And, you know, at this point, I’ve told you ad nauseam
          that you have to confine your arguments and
          questioning during this case to what’s appropriate.
          And for whatever reason, you’re either incapable of
          doing that or you refuse. I’m not sure what it is,
          but there’s no excuse for it.

          Defense counsel again moved for mistrial.             The motion

                                     64
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


was denied.     Following conclusion of the bench conference, the

circuit court “specifically instructed” the jury to “completely

disregard in its entirety the last statement made by the [DPA]

with respect to what may or may not have been observed by law

enforcement utilizing the Chinatown surveillance system as to Mr.

Muna or anything else for that matter.          And so you are not to

consider it in any way, shape, or form in your deliberations.”
           Again, although the HPD detectives testified that they

eliminated Muna as a suspect based, in part, on their review of

Chinatown surveillance footage, the footage itself was not

admitted into evidence and the circuit court specifically

prohibited the State from eliciting testimony regarding its

content.   Therefore, the DPA’s comment was clearly improper.

This statement poses a heightened danger of prejudice to Pasene’s

defense, given the fact that the DPA similarly invoked the

content of the Chinatown surveillance footage in the State’s

opening statement and implied that it directly contradicted

Pasene’s mistaken identity defense.         Thus, even though the

circuit court promptly issued a curative instruction, the repeat

nature of the DPA’s improper conduct and its centrality to

Pasene’s defense raise concerns about the cumulative effect of

such conduct.    See Pemberton, 71 Haw. at 476, 796 P.2d at 85.

                  iii.   Taxi Driver Identification

           The DPA also stated, “[w]ho else IDs Mr. Pasene?

Darren [Kawelolani,] the taxi driver.”          Defense counsel objected

                                     65
     *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


on the grounds that “Kawelolani never identified Mr. Pasene.”

            Kawelolani testified that he picked up two passengers

in his taxi cab and saw a male drive by in a blue Buick shortly

before he heard gunshots.        He later saw someone on the news and

thought “that’s the person that . . . passed me.”              Muna testified

that he got into a taxi cab at the same time and place, and saw

Pasene drive by in the blue Buick.          Thus, if the jury found both
Kawelolani and Muna’s testimony to be credible, an inference

could be drawn that Pasene was the person that Kawelolani saw

driving the blue Buick.       The jurors were not left to make this

assessment, however, as the DPA made it for them.

            The circuit court overruled defense counsel’s objection

to the statement and denied defense counsel’s request for a

curative instruction.17      It asked the DPA to clarify his

statement, which he did by accurately representing the evidence

and explaining the inferences that could be drawn therefrom.

However, neither the DPA or the circuit court communicated to the

jury that the DPA’s original assertion - that Kawelolani

identified Pasene as the driver - was untrue.

            The DPA’s statement was improper, as Kawelolani did not


      17
            This court has held that overruling an objection can in effect
endorse the prosecutor’s remarks. See State v. Espiritu, 117 Hawaii 127,
143, 176 P.3d 885, 901 (2008) (Because defense counsel's objections to
prosecutor's misstatement during closing argument were overruled, “the jury
would reasonably perceive that the misstatement of the law was not
incorrect.”); State v. Schnabel, 127 Hawaii 432, 453, 279 P.3d 1237, 1258
(2012) (“[B]y overruling defense counsel's objection, the court, at least
tacitly, placed its imprimatur upon the [prosecutor's] improper remarks.”)
(citation, internal quotation marks and original brackets omitted).

                                      66
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


directly identify Pasene as the driver of the blue Buick.

Moreover, the DPA’s statement was prejudicial to Pasene’s

defense.   Sakaria and Tagataese had been friends with Peneueta

for over 20 years and Pasene was the last remaining defendant

being prosecuted for Peneueta’s killing.          In his closing

argument, defense counsel questioned Sakaria and Tagataese’s

credibility by suggesting that they wanted to facilitate Pasene’s
conviction in order to ensure someone would be held accountable

for Peneueta’s killing.      Kawelolani, however, appears to be a

disinterested third party witness without direct ties to

Peneueta, Pasene, or Muna.       Thus, by implying that Kawelolani

directly corroborated the eye-witness identifications made by

Sakaria and Tagataese, the DPA’s statement strengthened the

State’s case against Pasene.

           Because the circuit court overruled defense counsel’s

objection and did not issue a curative instruction, the

prejudicial effect of the DPA’s statement was not sufficiently

addressed by the circuit court.

                 iv.   Asking the Jury to Place Themselves in the
                       Shoes of Eye-Witnesses

           Defense counsel objected to the DPA’s discussion of

Sakaria and Tagataese’s testimony, arguing that the DPA

improperly asked the jury to place themselves in the shoes of the

witnesses in assessing their credibility.           The circuit court did

not sustain or overrule the objection, but asked the DPA to


                                     67
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


rephrase.

            The DPA then stated:

            Imagine a person has a friend for over 20 years and .
            . . two guys jump out, and they shoot him in his back
            and kill him and that’s your good friend. . . . You,
            as a friend, would want the person who shot your close
            friend to be held and come to justice, so you’re going
            to tell the truth if you’re a friend and he was a
            friend for over 20 years.

(Emphases added).
            Defense counsel did not object and the statement went

unaddressed by the circuit court.         Pasene now argues the DPA’s

statement was an improper attempt to elicit the jury’s sympathy

and passion.     However, in context, the DPA’s statements entreated

the jury to use their life experiences to judge the credibility

of the witness’ testimony, rather than asking the jury to put

themselves in the witnesses’ position.          Unlike in Rogan, the

DPA’s invitation to consider the perspective of the witnesses was

not accompanied by a “blatantly improper” plea for sympathy.                 Cf.

91 Hawaii at 414, 984 P.2d at 1240 (prosecutorial misconduct

warranted reversal of a conviction where the prosecutor made a

“blatantly improper plea to evoke sympathy for the Complainant’s

mother and represented an implied invitation to the jury to put

themselves in her position.”).        Thus, the DPA’s statement was not

improper.

            d.    The State’s Rebuttal Closing

            In his closing argument, defense counsel stressed the

presumption of innocence and emphasized that the question before

                                     68
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


the jury was whether the State proved beyond a reasonable doubt

that Pasene killed Peneueta.       Defense counsel then highlighted

evidence suggesting Muna, rather than Pasene, may have been one

of Peneueta’s killers.      Defense counsel submitted to the jury

that this evidence showed the State had failed to carry its

burden of proof.

            The DPA opened the State’s rebuttal closing by stating,
“[defense counsel] had this nice drawing of presumption of

innocence, blah, blah, blah, right, it’s our burden, and we’re

over here and he draws a stick man.”         The circuit court overruled

defense counsel’s objection to the DPA’s “blah, blah, blah”

comment, effectively endorsing it, rather than issuing a curative

instruction.18

            A prosecutor’s comment is clearly misconduct where it

“constitute[s] an impermissible attack on defense counsel’s

integrity” and “operate[s] to denigrate the legal profession in

general.”    Klinge, 92 Hawaii at 595, 994 P.2d at 527.           Moreover,

the presumption of innocence and the State’s burden of proving

every material element of the offenses charged beyond a

reasonable doubt are fundamental protections under our

constitution that were central to Pasene’s mistaken identity

defense.

            In mocking defense counsel’s portrayal of these



     18
            See supra, note 17.

                                     69
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


fundamental principles, not only did the DPA denigrate defense

counsel and the legal profession in general, he also improperly

denigrated the constitutional protections that were at the heart

of Pasene’s defense.     Because the circuit court overruled defense

counsel’s objection to the DPA’s statement, it failed to issue a

curative instruction sufficient to overcome the prejudicial

nature of the improper conduct.
          The DPA also stated, “John Gotti, when he goes to

trial, he’s presumed innocent.        Charles [Manson] . . . .”         The

court sustained defense counsel’s objection and instructed the

jury to “disregard the last statements of the prosecutor.”

          We have recognized that prosecutors “should not use

arguments calculated to inflame the passions or prejudices of the

jury[,]” as “[a]rguments that rely on . . . prejudices of the

jurors introduce into the trial elements of irrelevance and

irrationality that cannot be tolerated.”          Rogan, 91 Hawaii at

413, 984 P.2d at 1239 (quoting ABA Prosecution Function Standard

3-5.8(c) (3d ed. 1993) and the 1979 commentary to that section)

(internal quotation marks omitted).         While it cannot be said that

the DPA’s statement was calculated to inflame the passions or

prejudices of the jury, that was likely the result.             As the

circuit court acknowledged, referencing such notorious examples

of heinous murderers during the State’s rebuttal closing in a

murder trial may lead the jury to react based on emotion, rather

than in an objective way, and threatens to introduce “an

                                     70
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


atmosphere of bias and prejudice” as the jury enters

deliberation.     Kahalewai, 55 Haw. at 129, 516 P.2d at 338.            Thus,

although the circuit court promptly issued a curative

instruction, it may not have sufficiently negated the prejudicial

impact of the DPA’s statement.

           e.     Conclusion

           In conclusion, with regard to the first factor in our
analysis of prosecutorial misconduct, we find the nature of the

DPA’s improper conduct weighs heavily in favor of vacating

Pasene’s convictions.      As an officer of the court, the prosecutor

is expected to know and abide by the standards of professional

conduct, to operate in accordance with the interests of justice,

and to act with due regard for fairness and the rights of the

defendant.      Standards 3-1.2 and 3-1.9, ABA Standards for Criminal

Justice (4th ed. 2015).      Attempts to refer to evidence that has

been specifically excluded by the circuit court, and to denigrate

core constitutional protections such as the presumption of

innocence, undermine the integrity of the criminal justice

system.   Moreover, the repetitive nature of the DPA’s improper

conduct, despite multiple warnings and admonishments from the

circuit court, raises the question of whether this pattern of

behavior was purposeful.

           With regard to the second factor in our analysis of

prosecutorial misconduct, in response to the DPA’s improper

conduct, the circuit court properly sustained the majority of

                                     71
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


defense counsel’s objections and generally issued curative

instructions to the jury where necessary.           However, there were

occasions where defense counsel failed to object, the circuit

court overruled defense counsel’s objections, or the circuit

court failed to issue necessary curative instructions.              Several

of those instances involved improper conduct that directly

impacted Pasene’s theory of defense.         As such, because it cannot
be said that the circuit court’s efforts were sufficient to

eliminate the cumulative prejudicial effect of the conduct, this

factor also weighs in favor of vacating the convictions.

Pemberton, 71 Haw. at 476, 796 P.2d at 85.

     2.   Strength or Weakness of the Evidence Against Pasene

          The State’s evidence against Pasene included testimony

from Sakaria and Tagataese, who identified Pasene as the driver

of the blue Buick sedan and one of Peneueta’s killers.              The State

also presented Officer Le’s testimony that Pasene used the Phone

and the blue Buick sedan in the weeks leading up to Peneueta’s

killing, in conjunction with the cell phone site records

purporting to show the Phone, and therefore Pasene, was in

Chinatown around the time of Peneueta’s killing, and in Wahiawā

at around the time the blue Buick sedan was reported burning.

The State also elicited testimony from detectives McCormick and

Coons regarding their investigation of the shooting and the

factors that led them to eliminate Muna as a suspect.

          To support his mistaken identity defense, Pasene

                                     72
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


presented evidence that Muna, rather than Pasene, may have been

one of Peneueta’s killers.       Muna generally resembled Pasene in

dress and appearance, and was, even by his own account, in the

general vicinity of Peneueta’s killing around the time it

occurred.    Moreover, the blue Buick sedan was previously

registered to Muna, and Pasene testified that he borrowed the car

from Muna prior to Peneueta’s killing.          In addition, Muna’s bail
bond agent, Del Rio, testified that on the day of Peneueta’s

shooting, Muna admitted that he “shot someone,” and that he tried

to use the blue Buick as collateral just one day prior.

            Although the evidence supporting Pasene’s convictions

was strong, it cannot be said that the DPA’s improper comments

did not contribute to the jury’s determination of guilt.              In

reaching this conclusion, we note that two prior trials ended in

mistrials when the juries were unable to reach unanimous

verdicts.    Because there is a reasonable possibility that the

DPA’s improper statements might have contributed to Pasene’s

convictions, the statements cannot be said to be harmless beyond

a reasonable doubt.     Thus, in denying Pasene’s post-trial motion

for mistrial or new trial, the circuit court clearly disregarded

principles of law to Pasene’s substantial detriment.             As such,

Pasene’s convictions must be vacated.

                             III.   CONCLUSION

            For the reasons set forth herein, we vacate the ICA’s

Judgment on Appeal and the circuit court’s Amended Judgment of

                                     73
    *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***


Conviction and Sentence, and remand the case to the circuit court

for further proceedings consistent with this opinion.

Thomas M. Otake                           /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Brian R. Vincent
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Michael D. Wilson

                                          /s/ Matthew J. Viola




                                     74
