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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-15-0000439
                                                              09-OCT-2017
                                                              08:40 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


                          STATE OF HAWAI#I,
                   Petitioner/Plaintiff-Appellee,

                                    vs.

               LAWRENCE L. BRUCE and JUSTIN MCKINLEY,
                 Respondents/Defendants-Appellants.


                            SCWC-15-0000439

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
      (CAAP-15-0000439; CAAP-15-0000477; CR. NO. 14-1-0987)

                            OCTOBER 9, 2017

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

                OPINION OF THE COURT BY NAKAYAMA, J.

                            I.   INTRODUCTION

          Petitioner/Plaintiff-Appellee State of Hawai#i (the

State) charged Respondent/Defendant-Appellant Lawrence L. Bruce

(Bruce) and Respondent/Defendant-Appellant Justin McKinley

(McKinley) with offenses arising from their alleged involvement
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in and benefit from the activities of a prostitute, the

complaining witness (CW).      After being tried as co-defendants in

the same jury trial, the jury found Bruce guilty of promoting

prostitution in the second degree, and found McKinley guilty of

promoting prostitution in the first degree.

           Bruce and McKinley appealed, arguing, inter alia, that

their trials were tainted by prosecutorial misconduct.            The

Intermediate Court of Appeals (ICA) held that one of the

prosecutor’s comments during rebuttal closing argument

constituted misconduct, and that such misconduct was not harmless

beyond a reasonable doubt.      Thus, the ICA vacated Bruce’s and

McKinley’s convictions and remanded their cases for new trials.

           For the reasons stated below, we conclude that the

prosecutor’s comments during rebuttal closing argument did not

constitute misconduct.     Although the prosecutor’s comments could

be interpreted as appealing to the jury’s passions and prejudices

when viewed in isolation, we believe that the comments, properly

analyzed in context, were relevant to the fundamental issues at

trial.   Consequently, the comments were not improper.

           Accordingly, as to Bruce, we reverse the ICA’s November

17, 2016 judgment on appeal filed pursuant to its October 20,

2016 memorandum opinion, which vacated the Circuit Court of the

First Circuit’s (circuit court) May 5, 2015 judgment of


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conviction and sentence and remanded the case for a new trial.

As to McKinley, we reverse the ICA’s September 29, 2016 judgment

on appeal filed pursuant to its August 31, 2016 memorandum

opinion, which vacated the circuit court’s May 5, 2015 judgment

of conviction and sentence and May 5, 2015 mittimus and warrant

of commitment to jail, and remanded the case for a new trial.

                              II.    BACKGROUND

A.    Circuit Court Proceedings1

            On June 17, 2014, Bruce was charged with one count of

promoting prostitution in the first degree in violation of

Hawai#i Revised Statutes (HRS) § 712-1202(1)(a) and one count of

sexual assault in the first degree in violation of HRS § 707-

730(1)(a).     McKinley was charged with one count of promoting

prostitution in the first degree in violation of HRS § 712-

1202(1)(a), two counts of sexual assault in the first degree in

violation of HRS § 707-730(1)(a), and one count of kidnapping in

violation of HRS § 707-720(1)(d).          Bruce and McKinley were tried

as co-defendants at the same jury trial.

            CW was one of the witnesses who testified on behalf of

the State.     CW testified that she came to Honolulu, Hawai#i from

San Diego, California on April 1, 2014.           She attested that her

initial purpose for coming to Hawai#i was to earn money through

1
      The Honorable Randal K.O. Lee presided.

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prostitution so she could return home to Alaska.           CW stated that

her former pimp, Lando, had advised her to go to Hawai#i.

            CW testified that after arriving in Hawai#i, she went

to a hostel in Waikîkî, where she met a man named “L-Way” for the

first time.    CW identified Bruce as L-Way at trial.         CW testified

that upon meeting Bruce, Bruce informed CW of the sexual services

that she was to provide and the prices that she was to charge

therefor.    CW also attested that during their initial

discussions, Bruce instructed CW on how she was to dress, act,

and speak if she were to walk the streets as a prostitute.

            CW testified that rather than walking the streets, it

was determined that she would solicit clients via her internet

advertisement on a website called Backpage.          CW attested that she

had previously posted a Backpage advertisement for sexual

services in San Diego, and that Bruce used his iPad to re-post

and update her advertisement to reflect her relocation to

Hawai#i.    CW stated that Bruce paid $5 to promote her

advertisement by “bring[ing] it to the top” of the list of

advertisements on the website.

            CW attested that she and Bruce then had sexual

intercourse as a way of “initiating that [she was his] girl now.”

She testified that after they had intercourse, Bruce said “[t]hat

[she] was his girl now.”      CW stated that after becoming Bruce’s


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“girl,” she “work[ed] for him now.”

          CW testified that she stayed at the hostel for about

ten or eleven days with Bruce, Jennie Ortegon (the mother of

Bruce’s son), and his son.      She testified that while she stayed

at the hostel, Bruce was “[r]ight there with [her]” and did not

leave her alone.    CW attested that in addition to the room in

which CW, Bruce, and his family slept, Bruce rented a separate

room at the hostel, which was solely used for dates with clients.

          CW testified that during her stay at the hostel, she

provided sexual services for one client.         CW attested that she

gave all of the money that she received from the client to Bruce,

because she “became his girl” and “when you do prostitution, you

give the guy the money.     And if you don’t, then . . . [y]ou can

serve consequences . . .      [like] [g]et[ting] beat up.”

          CW testified that on or about April 11, 2014, she and

Bruce left the hostel and relocated to a Best Western hotel per

McKinley’s recommendation.      She stated that before leaving the

hostel, Bruce had asked CW to give her I.D. and social security

card to him so she “wouldn’t be able to go nowhere.”            CW

testified that she complied with Bruce’s request; upon arriving

at the Best Western, Bruce did not return her I.D. or social

security card to her.

          CW testified that when she arrived at the Best Western,


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Bruce introduced her to McKinley, another pimp, and Keshawn

Stewart (Stewart), who was also a prostitute.             CW, Bruce,

McKinley, and Stewart stayed in the same hotel room together.

CW testified that during her two-week stay at the Best Western,

she earned about $1,000 by providing sexual services to clients,

but she turned all proceeds over to Bruce.

             On April 13, 2014, CW and Stewart received a call from

a customer who requested two prostitutes to meet him at the

Executive Centre Hotel (Executive Centre).            CW testified that she

told Stewart that she “didn’t think that [they] should go on that

date because . . . the guy sounded funny, like he was a cop.”

She stated that Bruce, who was sitting next to her when she

expressed her concerns to Stewart, told her that “[h]e wanted

[CW] to go on that date.”

             CW attested that after they met the customer at the

hotel room in the Executive Centre, the customer gave $700 to

Stewart.     CW testified that after he placed the cash in Stewart’s

hand, the customer excused himself to go to the restroom.

Subsequently, police entered the room and arrested Stewart and

CW.    The “customer” was actually a police officer from the

Honolulu Police Department (HPD), who had contacted CW and

Stewart as part of an undercover investigation and sting

operation.


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           Following her arrest, CW spoke to HPD Officer Lovinna

Kaniho (Officer Kaniho) at the Executive Centre.           Officer Kaniho

asked CW if she needed help getting out of prostitution.            CW

testified that she refused help at the time because when Officer

Kaniho had spoken to her, Stewart was present.          CW stated that

she was concerned that if she accepted Office Kaniho’s help,

Stewart would inform Bruce and McKinley that CW had agreed to

help the police.    Subsequently, CW and Stewart were taken to

jail.   CW was released on bail the next morning, and returned to

the Best Western.

           CW testified that after she was arrested on April 13,

2014, she did not want to engage in prostitution anymore.             CW

explained that she was selling her body for money, and she felt

like she “was somebody’s property.”        She attributed her feelings

to Bruce’s “pimp demeanor.”      CW described Bruce’s “pimp demeanor”

as follows:    “[If] you do something wrong, you’re going to get

beat, or you’re just out here making money for [him] and giving

it to him.    He just had that demeanor.”       CW stated that despite

her reservations, she felt like she “had to” keep prostituting

because she “wanted to go home” and because she “didn’t want to

get beat up.”

           CW attested that on April 18, 2014, she went to the Ala

Moana Shopping Center to buy new clothes.         She testified that she


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needed to ask Bruce for permission to go to the mall, and that

she remembered asking him, through text message:           “Daddy, can I

go with [Stewart] to the mall, please?”         She stated that she

called Bruce “Daddy” because “that’s what girls call their

pimps.”

          CW testified that while she was at the mall, Bruce kept

in contact with her via text message, and told her to “make sure

[she] tell him [sic] every place that [she] go [sic] or what

[she’s] doing.”    CW also stated that Bruce, by text, told her to

take a picture of what she was wearing that day, because “there

was money” around the mall.      CW testified that she understood his

comment to mean that she was to look for dates.

          CW attested that on or around April 18, 2014, Bruce

left the Best Western for a few days and did not return.            CW

testified that McKinley then called Bruce and told him that CW

was “going to become his girl now since [Bruce’s] gone and left

[her] behind.”    CW stated that at that point, she “bec[a]me

[McKinley’s] property.”     Bruce returned to the Best Western on

April 19, 2014 and turned over CW’s I.D. and social security card

to McKinley.   CW stated that after that date, she made over

$1,000 by going on dates with clients.         CW testified that she

turned over all of her earnings to McKinley because she “was his

property,” and that McKinley treated her “[l]ike property.”


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           After staying at the Best Western for two weeks, CW

relocated to the Pagoda Hotel (Pagoda) with McKinley and Stewart.

At the Pagoda, there was an incident where McKinley beat CW by

hitting her face and legs and choking her.         Bruce was present

during the incident and took a video recording of it on his cell

phone.

           The video of the incident was entered into evidence

without objection, and was played for the jury.           In the video, as

he was hitting CW, McKinley said, inter alia, that CW was

“costing everybody money,” that she was “costing [him] money with

[her] games,” and that CW was to “[g]et money by all means

necessary.”   After remarking that calls to CW’s phone were being

sent to voicemail, McKinley said:        “I’m going [to] beat your

brains.”

           CW testified that while she did not know why McKinley

had beaten her that day, she believed that when McKinley, in the

video, referred to calls going to voicemail, he was likely

referring to calls from clients that CW did not answer.            CW

attested that at the time, she was not answering calls to her

cell phone in response to her Backpage advertisement because she

“didn’t want to prostitute no more.”

           CW stated that on May 13, 2014, after attending a

hearing related to her arrest in April 2014, she went to Queen’s


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Medical Center because she was not feeling well.           She was

admitted to the hospital after a urine test revealed that she was

three months pregnant.     After leaving the hospital, CW went to a

safe house and filed a police report.        CW subsequently met with

Officer Kaniho and provided a statement.

          Following CW’s testimony, the State entered Exhibit 33,

a log of text messages that were sent to and from a T-Mobile cell

phone in April 2014, into evidence.        The T-Mobile cell phone was

found on Bruce’s person when he was arrested.          According to the

State, Exhibit 33 detailed a series of text messages between CW

and Bruce, which corroborated CW’s testimony regarding the text

messages she sent and received when she went to the Ala Moana

Shopping Center.

          After the State rested its case, Bruce orally moved for

a judgment of acquittal on his charges for promoting prostitution

in the first degree and sexual assault in the first degree.             The

circuit court granted Bruce’s motion with regard to the sexual

assault charge.    The circuit court granted in part and denied in

part Bruce’s motion with respect to his charge of promoting

prostitution in the first degree, finding that “there’s

sufficient evidence of promoting prostitution in the second

degree, but not in the first degree.”

          Similarly, McKinley moved for a judgment of acquittal


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on all of his charges.     The circuit court granted the motion with

respect to his kidnapping charge, but denied it as to all of the

other charges.

           Stewart testified on behalf of McKinley.          Much of her

testimony conflicted with CW’s testimony.         She testified that she

learned about the prostitution scene in Waikîkî through CW, and

that she and CW occasionally prostituted together on a voluntary

basis.   Stewart stated that she and CW kept their earnings from

going on dates, but that CW sometimes gave a small portion of her

earnings to Stewart and McKinley to help cover the costs of the

hotel room.   Stewart attested that McKinley was her boyfriend,

not her pimp, and that McKinley did not play a role in Stewart’s

or CW’s involvement in prostitution.        Stewart testified that

while she was aware of the incident in which McKinley beat CW, it

was her understanding that McKinley had beaten CW in response to

Stewart’s complaints that CW had stolen her money, and that CW

was not covering her share of the hotel room costs.

           Bruce testified on his own behalf.         His testimony

drastically diverged from CW’s testimony.         Bruce attested that he

was not the person whom CW had identified as “L-Way.”            Rather,

Bruce asserted, L-Way was CW’s boyfriend, who also went by the

name “Lando.”    Bruce testified that he met Lando in Hawai#i, and

that they had been acquaintances since December 2013.            Bruce


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stated that he met CW in April 2014 while he was walking back to

the hostel with his son.

          Bruce asserted that from December 2013 to June 2014,

Ortegon, the mother of his child, had his T-Mobile cell phone in

her possession and was using it during that time.           Accordingly,

he testified that from December 2013 to June 2014, the text

messages sent to and received by the T-Mobile cell phone were not

between himself and CW.     Bruce testified that the text messages

from December 2013 to June 2014, including those sent and

received during April 2014, were between Ortegon and Lando.             To

Bruce, these text messages supported that Bruce was not L-Way.

          Bruce denied managing CW as a prostitute and denied

being CW’s pimp.    Bruce testified that he never had sexual

intercourse with CW, and that he did not promote or pay to

promote CW’s Backpage advertisement.        Bruce further attested that

CW did not live at the hostel with him or his family, that he did

not rent any extra rooms to facilitate prostitution activities,

and that he was unaware of whether any prostitution activities

were taking place at the hostel.         Bruce asserted that he did not

set the prices for CW’s sexual services, that he did not have CW

walk the streets as a prostitute, and that he never made money

off of CW by way of prostitution.

          Bruce testified that he took a video recording of the


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incident where McKinley beat CW at the Pagoda.          Bruce attested

that he took the video because he wanted to show it to Lando,

CW’s boyfriend, and that he in fact did share the video with

Lando.

          Following jury instructions, the parties presented

their closing arguments.      Bruce’s counsel argued that the

evidence demonstrated that he was not L-Way, that he was not her

pimp, and that he had never managed her as a prostitute.

McKinley’s counsel argued that the jury could infer, based upon

the evidence, that CW had engaged in prostitution voluntarily,

and that McKinley did not force her to do prostitution.            He

argued that the video tape of McKinley beating CW did not

demonstrate that he had compelled her to engage in prostitution

against her will, as the evidence indicated that McKinley had

beaten CW because he was fed up with living with a roommate who

he believed was stealing money from his girlfriend, Stewart.

          In rebuttal closing argument, the prosecutor countered:
                So this whole thing about [CW] lying and can’t
          be believed, well, the only people who can’t be
          believed was Keshawn Stewart and Mr. Bruce. The fact
          of the matter is that they treated her like she was
          property.

                . . . .

          . . . They didn’t see her as anything more than a
          piece of property to pass around, to mistreat, to
          humiliate, intimidate, beat, and force. That is how
          they viewed her, that is how they treated her. But
          she’s not a piece of property. I mean, she’s
          somebody’s daughter, she’s somebody’s friend, she’s a


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            mother, she’s a woman, she is a person, and she
            deserves to be treated properly[.]

(Emphases added.)      As to the prosecutor’s comment that CW was

“somebody’s daughter, she’s somebody’s friend, she’s a mother,

she’s a woman, she is a person,” McKinley objected on grounds

that “this is a little bit far beyond arguing the evidence.”

Bruce did not join McKinley’s objection, nor did he raise one of

his own.    McKinley’s objection was overruled.

            On January 26, 2015, the jury found Bruce guilty of

promoting prostitution in the second degree.            The jury found

McKinley guilty of promoting prostitution in the first degree and

not guilty of sexual assault in the first degree.             The circuit

court2 entered its final judgment of conviction and sentence for

both Bruce and McKinley on May 5, 2015.           On the same day, the

circuit court entered its mittimus and warrant of commitment to

jail with respect to McKinley.

B.    ICA Proceedings

            On appeal, both Bruce and McKinley argued, inter alia,3


2
      The Honorable Paul B.K. Wong signed both final judgments and the
mittimus and warrant of commitment to jail.

3
      Bruce also raised several other points of error on appeal, including:
(1) whether the evidence at trial was sufficient to support his conviction;
(2) whether the circuit court abused its discretion in allowing Detective
Derek Stigerts (Detective Stigerts) to testify as an expert on the commercial
sexual exploitation of women; (3) whether the State committed prosecutorial
misconduct in characterizing the case as a “sex trafficking” case and alluding
to the practice of slavery; and (4) whether the circuit court abused its
discretion by allowing Ortegon to assert her Fifth Amendment privilege against
                                                                (continued...)

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that the prosecutor engaged in prosecutorial misconduct when she

stated:   “But she’s not a piece of property.          I mean, she’s

somebody’s daughter, she’s somebody’s friend, she’s a mother,

she’s a woman, she is a person, and she deserves to be treated

properly.”    Bruce acknowledged that he did not object to the

remarks at trial, and that therefore, “the appellate court must

determine whether the misconduct constituted plain error that

affected Bruce’s substantial rights.”

            Relying on State v. Rogan, 91 Hawai#i 405, 984 P.2d

1231 (1999), Bruce argued that by referencing CW’s gender and

familial status, the prosecutor improperly appealed to the jury’s

passions and prejudices, invited the jurors to place themselves

in CW’s position and render the verdict based on their emotions

rather than the evidence, and injected irrelevant issues into



3
 (...continued)
self-incrimination under the United States Constitution. McKinley similarly
challenged whether Detective Stigerts was qualified to testify as an expert
witness, and asserted that the prosecutor committed misconduct in
characterizing the case as a “sex trafficking” case and in referencing the
practice of slavery during the State’s closing argument.
      In brief, the ICA held: (1) the State presented sufficient evidence to
support that Bruce was guilty of promoting prostitution in the second degree,
(2) the circuit court did not abuse its discretion in qualifying Detective
Stigerts as an expert and allowing Detective Stigerts to testify as an expert
witness, (3) the prosecutor did not commit prosecutorial misconduct during
closing argument either when she described the case as a “sex trafficking
case,” or when she alluded to the practice of slavery, and (4) the circuit
court did not abuse its discretion when it did not compel Ortegon to testify
on Bruce’s behalf. On certiorari, the State has not raised any questions
pertaining to the ICA’s holdings on these points. Neither Bruce nor McKinley
filed a response to the State’s application for writ of certiorari to
challenge any of these rulings. Accordingly, we do not address any of these
issues. See Hawai#i Rules of Appellate Procedure Rule 40.1(d) (2014).

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their deliberations.     Thus, Bruce contended that he was deprived

of a fair trial because the comments rose to the level of

prosecutorial misconduct, the State did not have a strong case

against Bruce, and no curative instruction was given.            In his

appeal, McKinley advanced arguments that aligned with the

arguments that Bruce had made.

          On October 20, 2016, the ICA issued a memorandum

opinion that vacated Bruce’s conviction and sentence and remanded

the case for a new trial.      The ICA held that “based on the

Hawai#i Supreme Court’s analysis in Rogan, the State’s remarks,

when viewed in context, were improper and, thus, constituted

prosecutorial misconduct.”      The ICA likened the comments in this

case to those made by the prosecutor in Rogan, and concluded that

“CW’s status as a daughter, friend, mother, and woman, while

perhaps supported by the evidence, was not a disputed fact at

trial and was not relevant to whether Bruce or McKinley did in

fact view or treat CW as a ‘piece of property.’”           Therefore, to

the ICA, “the State’s comments about CW’s relationship to others

did not bolster the validity of the State’s theory of the case.”

          The ICA also held that the prosecutor’s comments “were

meant to humanize CW in the eyes of the jury evoking sympathy for

her,” and “represented an implied invitation for the jury to

place themselves in CW’s position, or in the position of someone


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near to her, enticing the jury to render a decision based on

emotional appeal rather than on the evidence that proved Bruce’s

guilt.”   Thus, the ICA held that the comments constituted

prosecutorial misconduct.

           The ICA then applied the three-prong harmless error

test for prosecutorial misconduct.        The ICA ultimately concluded

that the prosecutor’s comments were not harmless beyond a

reasonable doubt because:      (1) the prosecutor’s comments were

improper; (2) McKinley’s objection to the State’s comments was

overruled; and (3) the State did not present overwhelming

evidence against Bruce.

           In a footnote, the ICA noted that although McKinley

objected to the prosecutor’s comments, Bruce did not join in the

objection.   Observing that other jurisdictions have held that an

objection by one defendant preserves the issue for a co-

defendant’s appeal, even where the co-defendant does not join in

the objection at trial, the ICA held that “under the facts of

this case, McKinley’s objections to the State’s remarks

sufficiently preserved the issue for Bruce’s appeal.”

           The ICA’s memorandum opinion resolving McKinley’s

appeal, filed on August 31, 2016, similarly concluded that the

disputed comments by the prosecutor constituted misconduct.             The

ICA’s analysis in McKinley’s case was substantially identical to


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the analysis it employed in Bruce’s case.           Accordingly, the ICA

vacated McKinley’s conviction and sentence and remanded his case

for a new trial.

                         III.    STANDARD OF REVIEW

A.    Prosecutorial Misconduct

            “Allegations of prosecutorial misconduct are reviewed

under the harmless beyond a reasonable doubt standard, which

requires an examination of the record and a determination of

‘whether there is a reasonable possibility that the error

complained of might have contributed to the conviction.’”               Rogan,

91 Hawai#i at 412, 984 P.2d at 1238 (quoting State v. Sawyer, 88

Hawai#i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998)).

                                IV.   DISCUSSION

            We are presented with the following three questions on

certiorari:     (1) whether the ICA erred in holding that McKinley’s

objection sufficiently preserved the issue on appeal for Bruce,

who neither joined McKinley’s objection nor raised one of his

own; (2) whether the ICA misapplied this court’s opinion in State

v. Rogan to the present case; and (3) whether the ICA’s analyses

resolving Bruce and McKinley’s appeals are obviously inconsistent

with its own opinion in State v. Kiakona, 110 Hawai#i 450, 134




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P.3d 616 (App. 2006).4       Each is addressed in turn.

A.    McKinley’s objection to the prosecutor’s remarks
      sufficiently preserved the issue for Bruce’s appeal.

            The State contends that the ICA erred by holding that

McKinley’s objection to the State’s remarks adequately preserved

the issue for Bruce’s appeal.         The State argues that assuming

that one defendant’s objection applies to all defendants in cases

where multiple defendants are being tried is impracticable, as

each defendant may have different trial strategies, and one

defendant’s objection may not necessarily benefit the other’s

case.    The State also emphasizes that a defendant only needs to

utter two words, “I join,” to indicate whether he or she is

joining in the co-defendant’s objection and to preserve the issue

on appeal.

            The State’s argument presents the following issue of

first impression:      whether an objection by one defendant

preserves the issue on appeal for a co-defendant who does not

raise his or her own objection or join the defendant’s objection.

            Courts in other jurisdictions have adopted one of two

approaches to resolve this issue.          Several courts have held that

when an objection by one co-defendant inures to the benefit of


4
      The State filed an application for writ of certiorari in each of the
defendant’s appeals, separately challenging the ICA’s memorandum opinions in
each. We accepted both applications and consolidated McKinley’s and Bruce’s
cases for oral argument and disposition on certiorari.

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both defendants, the other co-defendant’s failure to object or

join in the objection does not waive the issue on appeal.             In

Williams v. United States, defendant Melonee Bryant (Bryant)

allegedly helped an undercover police officer purchase crack

cocaine from defendant Gualyn Williams (Williams) by using the

officer’s pre-recorded cash to purchase three bags of crack

cocaine; she gave one bag to the officer, and kept two for

herself.   966 A.2d 844, 845-46 (D.C. 2009).         After Bryant left,

the officer performed a field-test on the substance in the bag,

which indicated the presence of crack cocaine.          Id.   Both

defendants were later arrested and charged with distributing

cocaine to an undercover police officer.         Id. at 845-46.

           Bryant and Williams were tried together, and the

government sought to admit the report of a DEA-7 chemist, which

confirmed that the recovered substance was cocaine.           Id. at 847.

Over Bryant’s objection that the report’s admission would violate

her constitutional right to confrontation, the trial court

admitted the report into evidence.        Id.   Williams did not join

Bryant’s objection, nor did he raise an objection of his own.

See id.    On appeal, the government argued that Williams’ failure

to raise a constitutional objection at trial waived the issue on

appeal, thus requiring Williams to show plain error in order for

the court to consider it.      Id.


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            The D.C. Court of Appeals rejected the government’s

position.    Id.   The Williams court acknowledged that an objection

made by one co-defendant could preserve the issue on appeal for

another co-defendant when the objection applies to the latter’s

situation and inures to his or her benefit.          Id.   Observing that

the government did not proffer any evidence to indicate that

Williams “was thinking tactically, and was not just asleep at the

switches, when Bryant forcefully challenged the admission of the

chemist’s report without accompanying testimony,” the court held

that Bryant’s objection sufficiently preserved the confrontation

issue for Williams’ appeal.      Id. at 847-48.      On this point, the

court concluded that “[b]ecause the judge was given full

opportunity to weigh the constitutional objection, and the

prosecution a full chance to argue for admissibility, justice

would not be served by holding Williams to near-forfeiture of the

claim in circumstances where we see no plausible tactic behind

his attorney’s silence.”      Id. (citation omitted).       See also

People v. Griffin, 597 N.W.2d 176, 185 n.4 (Mich. App. 1999)

(observing that despite the defendant’s failure to object,

“because defendant’s codefendant raised the objection and the

ruling . . . affected both defendants, we here decline to regard

the technicality of defendant’s lawyer’s failing to join in the

objection as failing to preserve this issue”), abrogated on other


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grounds by People v. Thompson, 730 N.W.2d 708 (Mich. 2007);

People v. Wilson, 187 P.3d 1041, 1062-63 (Cal. 2008)

(acknowledging that an objection by a co-defendant may

sufficiently preserve an issue on appeal for the defendant when

the trial court’s treatment of the co-defendant’s objection would

cause the defendant to reasonably believe that making his own

objection would be futile); United States v. Garcia, 291 F.3d

127, 140 (2nd Cir. 2002) (“We presume that the objection of a co-

defendant is an objection for all defendants, and it is

sufficient to preserve the issue for appeal.”).

           By contrast, other courts require a defendant to

expressly join a co-defendant’s objection, or independently raise

his or her own objection, to preserve an issue on appeal.             In

Jackson v. State, defendants Jackson and Antonio Harris (Harris)

were charged with malice murder for shooting and killing a victim

while trying to rob her at gunpoint.        532 S.E.2d 674, 676 (Ga.

2000).   At trial, the government sought to admit the victim’s

hospital records, in which Dr. Aru Giorgio (Dr. Giorgio) opined

about the trajectory of a bullet that had hit the victim.             Id.

           While Jackson raised a general objection to the

admission of the hospital records into evidence, which Harris

joined, neither initially raised a specific ground to support the

general objection.    Id.   After the trial court pointed out that


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neither Harris nor Jackson had specified the ground upon which

they were objecting, Harris stated that he was objecting on the

ground that Dr. Giorgio was not qualified as an expert on bullet

trajectories.   Id.   Jackson did not join Harris’ objection, nor

did he offer his own specific ground for objecting.           Id.   The

trial court overruled Harris’ objection and admitted the medical

records into evidence.     Id.

           On appeal, Jackson argued that the trial court should

not have admitted the medical records because Dr. Giorgio was not

qualified to testify as an expert on bullet trajectories.             Id. at

676-77.   The Supreme Court of Georgia held that “[t]his argument

was not properly raised and preserved below” because “Jackson did

not join his co-defendant when his co-defendant offered a reason

for objecting to the admission of the medical record.”            Id. at

677.   See also Linnon v. Commonwealth, 752 S.E.2d 822, 828 (Va.

2014) (holding that “one party may not rely on the objection of

another party to preserve an argument for appeal without

expressly joining in the objection”); Gavlock v. Coleman, 493

N.W.2d 94, 98 (Iowa Ct. App. 1992) (holding that an “issue was

not preserved for appeal because defendant failed to make the

proper objection or join in the objection raised at trial” by his

co-defendant); United States v. Harris, 104 F.3d 1465, 1472 (5th

Cir. 1997) (“Having chosen not to object or at least to join his


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codefendant’s objection, the appellant did not preserve the issue

for appeal[.]”).

          Upon consideration of both possible approaches, we

hereby adopt the former approach over the latter for two reasons.

First, to require all defendants, especially in cases where

numerous defendants are being tried together, to chime in and

affirmatively join in a co-defendant’s objection, or object

individually to the same issue, would impose upon courts a

duplicative litany of redundant procedures that would disrupt the

flow of the proceedings.      Second, justice would not necessarily

be served if a criminal defendant were denied the opportunity to

raise an issue on appeal due to a mere technical error when the

objection raised at trial also affected the defendant’s case.

“[T]he purpose of requiring a specific objection is to inform the

trial court of the error.”      State v. Long, 98 Hawai#i 348, 353,

48 P.3d 595, 600 (2002).      When a co-defendant raises an

objection, this purpose is served, regardless of whether the

other defendant joins the co-defendant’s objection or objects

independently.    Therefore, we hold that an objection by a co-

defendant at trial sufficiently preserves the issue on appeal for

another defendant tried in the same proceeding when the objection

also applies to the non-objecting defendant’s case, even if the

non-objecting defendant does not join in the co-defendant’s


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objection or object independently.

            Applying this principle to the present case, McKinley

objected to the prosecutor’s remarks during the State’s rebuttal

closing argument.      The prosecutor’s comments responded to remarks

that were made during both defendants’ closing arguments.

Therefore, McKinley’s objection also applied to Bruce’s case and

inured to Bruce’s benefit.        Accordingly, McKinley’s objection

adequately preserved the issue for Bruce’s appeal, and plain

error review was not required.

B.    This court’s opinion in State v. Rogan is distinguishable
      and inapplicable to the present case.

            The State highlights that “[t]he analysis and holding

of Rogan, specifically, was based on the use of race in

argument.”     Accordingly, the State contends that because the

comments in the present case did not relate to CW’s race, and

because the remarks did not similarly inflame the passion and

prejudices of the jury as the comment made in Rogan, the ICA

erred in relying on Rogan.

            In Rogan, the defendant was charged with three counts

of sexual assault in the first degree and five counts of sexual

assault in the third degree.         91 Hawai#i at 409, 984 P.2d at

1235.    The complaining witness, who was twelve years old at the

time of the alleged offense, had invited the defendant to her



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home while her parents were out of the house.           Id.   After going

to the complaining witness’ sister’s bedroom to listen to music,

the defendant allegedly subjected the complaining witness to

various forms of sexual contact and penetration until her mother

entered the room after returning home.         Id.

           During rebuttal closing argument, the prosecutor in

Rogan made the following comment:
           There was one thing [that defense counsel mentioned]
           about, you know, it was the parents who wanted the
           conviction and somehow she was coached. Yeah, you can
           bet the parents wanted a conviction. This is every
           mother’s nightmare. Leave your daughter for an hour
           and a half, and you walk back in, and here’s some
           black, military guy on top of your daughter. That’s
           what she’s saying. . . .

Id. at 412, 984 P.2d at 1238 (alterations in original).             Defense

counsel objected to the comment as an improper appeal to racism,

but the trial court overruled the objection.           Id.

           This court held that the prosecutor’s comment was an

inflammatory reference to Rogan’s race and amounted to a

particularly egregious form of misconduct.           Id. at 414-15, 984

P.2d at 1240-41.    The Rogan court observed that “courts

throughout the country have consistently condemned appeals to

racial prejudice during closing argument.”           Id. at 413, 984 P.2d

at 1239.   Accordingly, this court held that:
           Because there was no dispute as to the identity of the
           perpetrator in this case, Rogan’s race was not a
           legitimate area of inquiry inasmuch as race was
           irrelevant to the determination of whether Rogan
           committed the acts charged. . . . Indeed, the deputy


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            prosecutor’s comment had the potential of distracting
            the jury from considering only the evidence presented
            at trial. It is therefore inescapable that the deputy
            prosecutor’s reference to Rogan as a “black, military
            guy” was an improper emotional appeal that could
            foreseeably have inflamed the jury.

Id. at 414, 984 P.2d at 1240.       This court also held that “[t]he

deputy prosecutor’s inflammatory reference to Rogan’s race was

further compounded by the statement that the incident was ‘every

mother’s nightmare,’ which was 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.”              Id.

            We agree with the State insofar as we believe that

Rogan is distinguishable from this case in two key respects.

First, compared to the prosecutor’s comments in Rogan, the

comments here did not constitute an improper appeal to the jury’s

emotions that bore no objectively legitimate purpose.               Viewed in

context, the prosecutor’s comments concluded the State’s

overarching theme and theory of the case, that Bruce and McKinley

had treated CW like a piece of property, by asserting that

treating a person in the manner CW had been treated is improper.

            Second, unlike the prosecutor’s comments in Rogan, the

prosecutor’s remarks in the present case did not represent an

implied invitation to the jury to put themselves in CW’s

position.    As discussed further in section IV.C, infra, when

considered in context, the prosecutor’s remarks are more properly


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viewed as a part of the State’s argument that despite defense

counsels’ assertions in closing argument to the contrary, the

evidence sufficiently illustrated that Bruce had facilitated and

benefited from CW’s prostitution activities, and that McKinley

had compelled CW to engage in prostitution against her will.

              Because Rogan is significantly distinguishable from

the present case, Rogan is inapposite and does not apply.

Accordingly, we hold that the ICA erred to the extent that it

relied on Rogan in support of its holding.

C.    The prosecutor’s comments did not rise to the level of
      misconduct.

            Having argued that Rogan is inapplicable to the present

case, the State contends that State v. Kiakona applies and

mandates a different outcome because the State’s comments had a

legitimate bearing on the central issues in this case.              The State

also contends that the remarks, considered against the backdrop

of the State’s closing argument as a whole and the State’s theory

of the case, did not invite the jury to place themselves in CW’s

position, or the position of someone near to her, and decide the

case based on emotion rather than evidence.

            In Kiakona, the defendant was charged with terroristic

threatening in the first degree in connection with a road rage

incident.     110 Hawai#i at 451-52, 134 P.3d at 617-18.          The


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complaining witnesses were two tourists who had, according to the

defendant, failed to observe a yield sign and in doing so, cut

off the defendant’s vehicle.       Id.   One of the complaining

witnesses testified that the defendant chased them, tried to run

them off the road several times, drove along the side of them,

and ran up on their bumper.      Id. at 453-54, 134 P.3d at 619-20.

          During closing argument, the prosecutor referred to the

complaining witnesses as “tourists” and “haoles” several times.

See id. at 456-57, 134 P.3d at 622-23.         For example, he said:
          That’s why [the defendant’s] here in court, his own
          arrogance, his own attitude he says the people in the
          valley have because it is his turf and these tourists
          come over there and they cause trouble and they need
          to be taught a lesson. That is what this case is
          about. He’s trying to teach these tourists a lesson .

Id. at 456, 134 P.3d at 622.       On appeal, the defendant argued

that the prosecutor committed misconduct in describing the

complaining witnesses as “haoles” and “tourists” throughout the

State’s closing argument.      Id. at 457-59, 134 P.3d at 623-25.

          The Kiakona court held that the prosecutor’s comments

did not constitute an improper appeal to “racial, religious,

ethnic, political, economic, or other prejudices of the jurors,”

nor did they “lack ‘a legitimate bearing on some issue in the

case, such as identification by race.’”         Id. at 459, 134 P.3d at

625 (quoting State v. Shabazz, 98 Hawai#i 358, 376, 48 P.3d 605,

623 (App. 2002)).    The ICA observed that “the central issue at

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trial was criminal intent--whether Defendant went after [the

complaining witnesses] in order to terrorize them or merely

followed them in order to settle details the alleged accident

entailed.”   Id.   The court also recognized that “references to

‘turf,’ ‘locals’ and ‘haole tourists’ crystallized the motive

behind Defendant’s criminal intent--his resentment of Caucasian

tourists and their supposedly highhanded ways in the place where

he was born and raised.”      Id.   Accordingly, the Kiakona court

held:   “Where, as here, references to status had a fundamental

bearing on the central issue in the case, they were not

improper.”   Id.

           In the present case, the central issues at trial were

whether Bruce had facilitated and profited from CW’s involvement

in prostitution, and whether McKinley had compelled CW to engage

in prostitution against her will.        Conflicting evidence was

presented on both issues, as discussed in section II.A, supra.

           We acknowledge that when viewed in a vacuum, the

prosecutor’s comments could be interpreted as appealing to the

jury’s passions and prejudices.       However, as in Kiakona, the

prosecutor’s comments, analyzed in context, had a fundamental

bearing on the primary issues in this case:          whether Bruce had

facilitated and profited from CW’s prostitution activities, and

whether McKinley had forced CW to involuntarily engage in


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prostitution.   During Bruce’s closing argument, defense counsel

argued that the evidence demonstrated that he was not L-Way, that

he never acted as CW’s pimp, and that he had never benefited from

her activities as a prostitute.       In McKinley’s closing argument,

defense counsel argued that CW had voluntarily engaged in

prostitution, and that McKinley had beaten her because he was

exasperated with living with a free-loading roommate that he

believed was stealing money from one of his other roommates.

          In rebuttal closing argument, the prosecutor responded:
                So this whole thing about [CW] lying and can’t
          be believed, well, the only people who can’t be
          believed was Keshawn Stewart and Mr. Bruce. The fact
          of the matter is that they treated her like property.

                . . . .

          . . . They didn’t see her as anything more than a
          piece of property to pass around, to mistreat, to
          humiliate, intimidate, beat, and force. That is how
          they viewed her, and that is how they treated her.
          But she’s not a piece of property. I mean, she’s
          somebody’s daughter, she’s somebody’s friend, she’s a
          mother, she’s a woman, she is a person, and she
          deserves to be treated properly[.]

(Emphases added.)

          Considered in context, it appears that the challenged

comments were made at the conclusion of the prosecutor’s broader

argument that the evidence presented at trial amply demonstrated

that Bruce and McKinley treated CW like a piece of property--a

mere object that they could pass around, control, and use to

generate revenue.    Accordingly, the prosecutor’s comments summed


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up the facts that, in the State’s view, supported Bruce’s and

McKinley’s charges, and argued that the jury should find both of

them guilty despite defense counsels’ arguments to the contrary

during their closing arguments.       Properly viewed as such, the

prosecutor’s remarks did not invite the jurors to place

themselves in CW’s, or any other person’s, position, nor did the

remarks constitute an improper plea to the jury’s passions and

prejudices.   Consequently, the prosecutor’s comments in this case

did not rise to the level of misconduct.

          Moreover, while the prosecutor’s comments may have cast

CW in a sympathetic light, the comments were still not improper

because they did not detract from the main point of the otherwise

meritorious argument--that the evidence showed that Bruce and

McKinley had treated CW like a piece of property.           See State v.

Ceballos, 832 A.2d 14, 38 (Conn. 2003) (holding that the

prosecutor’s comments about a child being the “perfect victim”

for abuse due to her difficult childhood and poor living

conditions were not improper appeals to the jury’s emotions

because while the comments cast the complaining witness in “an

undoubtedly sympathetic light,” they did not detract from the

main point of the argument).       At most, in making these comments,

the prosecutor argued that as a human being, CW did not deserve

to be treated like a piece of property, and that the way Bruce


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and McKinley treated CW was unacceptable.

           We hold that, when considered in context, the

prosecutor’s comments were relevant to the central issues at

trial.   See Kiakona, 110 Hawai#i at 459, 134 P.3d at 625.           The

comments in the present case did not constitute prosecutorial

misconduct.   Accordingly, the ICA erred in holding that the

comments were irrelevant to whether Bruce and McKinley were

guilty of the offenses with which they were charged, amounted to

an invitation for the jurors to decide the case based on their

emotions rather than on the evidence presented at trial, and

constituted an improper plea to the jurors’ passions and

prejudices.

                             V.   CONCLUSION

           For the reasons stated above, as to Bruce, we reverse

the ICA’s November 17, 2016 judgment on appeal filed pursuant to

its October 20, 2016 memorandum opinion, which vacated and

remanded the circuit court’s judgment of conviction and sentence

entered on May 5, 2015.     With respect to McKinley, we reverse the

ICA’s September 29, 2016 judgment on appeal filed pursuant to its

August 31, 2016 memorandum opinion, which vacated and remanded

the circuit court’s judgment of conviction and sentence and




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mittimus and warrant of commitment to jail, both of which were

filed on May 5, 2015.

Sonja P. McCullen                     /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Benjamin R.C. Ignacio
for respondent                        /s/ Sabrina S. McKenna
Justin McKinley
                                      /s/ Richard W. Pollack
Jon N. Ikenaga
for respondent                        /s/ Michael D. Wilson
Lawrence L. Bruce




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