Pasene v. Correa

656 F.Supp.3d 1185

Iosefa PASENE, Plaintiff, v. Boisse CORREA, Honolulu Police Chief, other, Bossie Correa; Gregory McCormick, Honolulu Police Detective; Theodore Coons, Honolulu Police Detective; Albert Le, Honolulu Police Officer; Daniel Sellers, Honolulu Police Officer; Officer John Doe, Honolulu Police Officer/Dispatcher; and City and County of Honolulu, Defendants.

Case No. 21-cv-00427-DKW-KJM

United States District Court, D. Hawaii

Signed February 17, 2023

Iosefa Pasene, San Francisco, CA, Pro Se.

Robert M. Kohn, Stephen Deutsch Atwell, Department of the Corporation Counsel, Honolulu, HI, for Defendants Boisse Correa, City and County of Honolulu.

Joseph N. A. Ryan, Waimanalo, HI, Joseph Ryan, N.A., Jr., Joseph Ryan, Jr. AAL LLLC, Waimanalo, HI, Stephen Deutsch Atwell, Robert M. Kohn, Department of the Corporation Counsel, Honolulu, HI, for Defendant Theodore Coons.

William C. McCorriston, Megan Ashley Coburn, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI, for Defendant Daniel Sellers.

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS; AND (2) DIRECTING APPOINTMENT OF COUNSEL FOR PLAINTIFF

Derrick K. Watson, Chief United States District Judge

In his First Amended Complaint ("FAC"), Dkt. No. 70, Plaintiff Iosefa Pasene, proceeding pro se, alleges various civil rights claims against the City and County of Honolulu ("City") and several Honolulu Police Department ("HPD") officers, all stemming from his lengthy incarceration that ended with his November 2019 release following a vacatur of his criminal conviction and a dismissal of his indictment. Before the Court are Defendants City, Correa, and Coons' motions to dismiss. Dkt. Nos. 77, 78 ("MTDs"). The MTDs are GRANTED IN PART and DENIED IN PART, as explained below.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes a Court to dismiss a complaint that fails "to state a claim upon which relief can be granted." Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Factual allegations that only permit the court to infer "the mere possibility of misconduct" are insufficient. Id. at 679, 129 S.Ct. 1937. Moreover, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (explaining that "legal conclusions" are not accepted as true).

RELEVANT FACTUAL ALLEGATIONS AND PROCEDURAL

HISTORY¹

I. Pasene's Murder Conviction

In the early morning hours of March 28, 2009, three men—Iosefa Pasene, Cedro Muña, and Antonius Toloai—were released from police custody following an arrest on an unidentified criminal charge. State v. Pasene, 439 P.3d 864, 871 (Haw. 2019).² At the time of their release, Pasene and Muña were dressed alike and had similar physical characteristics.³ Id.

Later that morning, around 4:15 a.m., a man named Joseph Peneueta was killed in Honolulu's Chinatown. Id.; FAC ¶ 18. Peneueta and several others were gathered on a sidewalk when two men in a blue Buick sedan stopped, exited their vehicle, and shot Peneueta several times, killing him. Pasene, 439 P.3d at 871. Soon after, the Buick was reported burning near Wahiawa. Id.

On March 30, 2009, Pasene was arrested for Peneueta's murder. FAC ¶ 43. Pasene was later indicted by a grand jury and charged with second degree murder. Pasene, 439 P.3d at 871. He was tried three times. The first and second trials resulted in hung juries. The third trial, however, resulted in Pasene's conviction. Id.

During the third trial,⁴ the State presented testimony from several eyewitnesses who identified Pasene as the Buick's driver and Peneueta's shooter. Id. at 873; FAC ¶¶ 20-26, 52, 52a-k. The State also presented testimony from Muña that he had traveled to Chinatown with Pasene and Toloai after their release from police custody the morning of the shooting. Pasene, 439 P.3d at 879. Muña testified that he witnessed Pasene and Peneueta arguing outside a liquor store and witnessed Pasene threaten another man with a gun. Id. Muña further testified that he was boarding a cab to leave the area when he saw Pasene drive by in a blue Buick and then heard several gunshots. Id.

Muña admitted at trial that his testimony was inconsistent with a statement he gave to detectives on the day of the murder that did not mention Pasene except to say that the men had traveled to Chinatown together. Id.; FAC ¶¶ 31-36. He further admitted that he only changed his account of that day about four years later, in February 2013, after he was arrested for skipping bail and fleeing to a different state, Pasene, 439 P.3d at 879; FAC ¶¶ 32, 37, at which point he remembered additional details and agreed to testify against Pasene. More specifically, Muña testified at Pasene's second and third trials on August 23, 2013 and March 10, 2014, respectively. Pasene, 439 P.3d at 879.

Pasene's principal defense theory at trial was mistaken identity, arguing that the killer could have been Muña. Id. at 873. Pasene presented testimony from Linda Del Rio, a bail bond agent familiar with Pasene, Muña, and Toloai who had posted bonds for the three men on the morning of March 28, 2009. Id. at 879. Del Rio testified that Muña owned a blue four-door sedan, which he had used as collateral on a previous occasion and had tried to use as collateral on the day of the shooting. Id. She also testified that Muña called her between 10:30 and 11:00 a.m. that day to tell her he "was in Wahiawa" and "had done something and needed to ... turn himself in," confessing, "Aunty, I shot someone." Id.

The State's rebuttal theory was that Muña could not have been the killer because, according to Detectives McCormick and Coons, footage from Chinatown surveillance videos "showed Muña getting into [a] taxi cab" at the time of the shooting. Id. at 876. The detectives claimed they reviewed this footage after the killing but, for an unknown reason, did not retain it. Id.

Because this footage was not available to the defense, a question arose during trial as to whether and to what extent the State could ask the detectives what the footage contained. Id. at 876-77, 882. The trial judge ruled that the State could solicit testimony from the detectives that, "based upon what [they] viewed in the video, ... essentially Mr. Muña was cleared." Id. at 877. But the trial judge forbade the State from referencing any specific footage content. Id. Accordingly, the State presented the detectives' testimony that they interviewed Muña after the killing but ruled him out as a suspect after reviewing the video footage. Id. ("Detective McCormick testified that although he viewed the Chinatown surveillance footage in the course of his investigation, it was 'not recoverable.'"); State v. Pasene, 420 P.3d 988, 2018 WL 3134505 at *7 (Haw. Ct. App. 2018) ("Detective Coons reviewed video from surveillance cameras in the Chinatown area ... [and] testified that his review of the Chinatown video was one of the aspects that led the police to rule out Muña as a suspect."). Additionally, and against the trial court's explicit and repeated warnings, the State told the jury in opening statement and closing argument that the footage showed Muña departing the area in which Penueuta was murdered in a cab. See, e.g., Pasene, 439 P.3d at 874, 880-81.

Having been found guilty of second degree murder during his third trial, Pasene was sentenced to life imprisonment with the possibility of parole. Id. at 882-83.

II. Pasene's Motions for a Mistrial on the Basis of Prosecutorial Misconduct

Throughout Pasene's third trial, the trial judge frequently admonished the Deputy Prosecuting Attorney (DPA) for flagrantly and/or intentionally flouting the court's instructions. For example, the DPA repeatedly ignored the trial judge's direction to refrain from engaging in improper argument during opening statement. Id. at 874. The judge sustained six defense objections on that basis, warning 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." Id.

The DPA also made multiple impermissible references to the Chinatown video content while addressing the jury. In his opening statement, the DPA said that Detectives McCormick and Coons eliminated Muña as a suspect because "the Chinatown cameras were able to capture Mr. Muña getting into the taxi." Id. Upon defense objection, the judge admonished the DPA at the bench:

[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 ... rulings about the limitations of opening statement.... [C]ertainly 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.

Id. The judge, however, did not issue a curative instruction to the jury. Id.

At the conclusion of the State's opening statement, Pasene moved for a...