State v. Browder

154 Haw. 237

549 P.3d 322

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Zeth BROWDER, Petitioner/Defendant-Appellant.

SCWC-22-0000267

Supreme Court of Hawai‘i.

June 5, 2024

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-22-0000267; CASE NO. 3CPC-19-0000486)

Walter J. Rodby, Honolulu, for petitioner

Stephen K. Tsushima, Honolulu, for respondent

McKENNA, EDDINS, AND DEVENS, JJ.; AND GINOZA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY EDDINS, J.

I.

During closing argument in this sexual assault case, the prosecution told the jury that its decision "comes to one question. Is [complaining witness] believable?" Then, while discussing the court’s credibility instruction, the prosecution explained that the witness’ testimony "is consistent with someone who’s been traumatized."

Recently we vacated a conviction in a sexual assault case after the prosecution during closing argument told the jury that its decision "comes down to one question, is [complaining witness] believable?" Then, while discussing the court’s credibility instruction explained that the witness’ testimony "is consistent with a child who is traumatized." State v. Hirata, 152 Hawai‘i 27, 29, 520 P.3d 225, 227 (2022). This court held that the "traumatized" statement was prosecutorial misconduct that eroded the defendant’s constitutional right to a fair trial. Id. at 33, 520 P.3d at 231.

In the present case, the Intermediate Court of Appeals validated the prosecutor’s remarks. We do not.

The prosecuting attorney crossed the line in Hirata. Here too. The remarks constituted prosecutorial misconduct.

We hold that the prosecuting attorney expressed a personal belief about the witness’ credibility and added new evidence during closing argument, thereby undermining the defendant’s right to a fair trial.

II.

The State alleges that Zeth Browder sexually assaulted the complaining witness (CW) (an identifier commonly used in Hawai‘i’s trial courts), an elderly woman, while she was camping in her tent in a county park.

The State charged Browder by indictment. It alleged he committed first degree sexual assault, Hawai‘i Revised Statutes (HRS) § 707-730(1)(a) (2014), third degree sexual assault, HRS § 707-732(1)(f) (2014), first degree burglary, HRS § 708-810(1)(c) (2014), kidnapping, HRS § 707-720(1)(e) (2014), and evidence tampering, HRS § 710-1076(1)(a) (2014).

Third Circuit Court Judge Robert Kim presided over Browder’s trial. The trial occurred two years after Chanse Hirata’s continuous sexual assault of a minor trial, and one year before this court’s Hirata opinion.

The same deputy prosecuting attorney tried both cases.

The jury found Browder guilty of all charges.

Browder appealed. He raised multiple points of error.

The ICA vacated Browder’s conviction and ordered a new trial based on other comments the prosecutor made during closing argument. The State didn’t appeal the ICA’s decision on those comments. Nor did it appeal the ICA’s conclusion that those comments may have affected the trial’s outcome and therefore Browder should be retried.

The ICA rendered a split decision on the prosecutor’s "consistent with someone who’s been traumatized" comment. The majority held that the statement was not misconduct. Judge Leonard disagreed, saying the remark mirrored the one this court found improper in Hirata. Browder appealed on this issue. We accepted cert to examine the ICA majority’s view that the prosecutor’s "traumatized" comment was permissible.

Thus, the only issue before us is whether the prosecutor’s "consistent with someone who’s been traumatized" comment was prosecutorial misconduct. So we limit our recitation of the facts.

Browder’s case went to trial in late 2021. The State called several witnesses who interacted with the woman after the alleged crime: the first person she reported the assault to, two responding police officers, two detectives, and a nurse who performed a sexual assault examination. Each witness described the woman as distressed, using words like "scared," "crying," "very emotional," and "shooken up" to describe her demeanor.

The CW testified. The defense’s cross-examination aimed to highlight purported inconsistencies in her prior statements.

Before the closing arguments, the court read the standard instruction about witness credibility. See Hawai‘i Standard Jury Instructions Criminal 3.09.

The prosecutor’s closing referenced the credibility factors in the jury instruction. She described the GW’s testimony as "emotional," "crying," and "scared." Then, like in Hirata, the prosecutor declared that the GW’s manner of testifying was "consistent with" a "traumatized" person.

The complaining witness in Browder’s case is an elderly woman. In Hirata, the complaining witness was a child. That difference is inconsequential.

Browder’s case and Hirata have four key similarities. First, the prosecution told the jurors that the case turned on credibility. Hirata, 152 Hawai‘i at 29, 520 P.3d at 227. Second, witnesses testified that the child and elderly woman were highly emotional during post-assault interactions. Third, the child and elderly woman testified in highly emotional ways. Id. Fourth, the prosecutor’s closing arguments described the complaining witness’ testimony as "consistent with" a traumatized person.

Here is what the prosecutor said in both cases:

Hirata, 152 Hawai‘i at 29, 520 P.3d at 227:	This case (emphasis added):
…. And it also comes down to one question, is [CW] believable?	…. [U]ltimately this case comes to one question. Is [CW] believable?
Now, the Court gave you the jury instructions that you all have in front of you, and on page 8, there are a list of factors that you can consider when you deliberate to determine if a witness is credible. So you look at their demeanor, their candor, lack of motive, and if what they say makes sense.So when you look at the factors - and I'll go through them with you, ladies and gentlemen - the answer is clear to this question. Yes, [CW] is believable. And because [CW] is believable, it’s - it is the testimony that has a convincing force upon you that counts, and the testimony of even a single witness, if believed, can be sufficient to prove a fact.So let’s go through the factors of [CW]’s credibility. Her appearance, demeanor, her manner of testifying. She came here last week. You saw her. She’s 11 years old. She was nervous and understandably so. And she tried to be brave up there on the stand. She answered all of my questions. She answered all of the defense attorney’s questions. Almost three hours up there.And then at the end of almost those three hours, she couldn't be brave anymore, and you saw her when she got emotional. She broke when the defense attorney continued to call - to question her credibility and if she was making this up, and her answer to you was this really happened. It’s consistent with a child who is traumatized.	Now, [the Circuit Court] just read you a number of jury instructions, and on page 9 you’ll find a number of credibility factors that you can use to determine the credibility of witnesses.I’m not gonna reread everything again for you, but when you look at some of them like her demeanor, her candor, her lack of motive and is [sic] what she says makes sense, then the State submits that, yes, the answer to this question is that [CW] is believable. And because [CW] is believable as stated on page 11 of your jury instructions, the testimony of even a single witness if believed is sufficient to prove a fact.So now let's look a little bit closer at the credibility factors and the evidence that you heard over the last week.So looking at [CW]’s appearance, demeanor, manner of testifying you saw her and you got to meet her over the course of two days of questioning.She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who's been traumatized.

The ICA’s majority (and the dissent) believe the summations meaningfully differ, making the appellate outcomes differ. We held in Hirata that the "consistent with a child who is traumatized" remark improperly expressed the prosecutor’s personal belief and improperly introduced new evidence during closing argument. Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. The ICA views Browder’s case as different. It said, "the prosecutor’s argument … was not based on the prosecutor’s own evaluation and opinion of CWs reaction to being cross-examined, as in Hirata, but was supported by reference to the evidence or facts supporting the assertion" (cleaned up).

The ICA felt the prosecutor did not express a personal opinion related to the witness’ credibility. Rather, telling the jury that the complainant testified consistent-with-a-traumatized-person was just an evidence-rooted inference. The ICA referenced several witnesses who described the woman as "crying," "scared," "sad," and "very shaky." In the ICA majority’s view, that evidence of post-assault emotion flips the outcome.

Judge Leonard doesn’t see the difference. Like we do here, her concurrence split-screens passages from the closing argu- ments, placing the closings side-by-side. She reasoned that Hirata "is indistinguishable from this case with respect to the prosecutor’s statement to the jury that the complaining witness’s … appearance, demeanor, and manner of testifying was consistent with someone who’s been traumatized." To Judge Leonard, "[t]he rule of law applied to the prosecutor in Hirata is equally applicable to her in this case."

It is. We hold that the prosecuting attorney’s consistent-with-someone-who’s-been-traumatized remark expressed a personal belief about the credibility of the State’s key witness and undermined Browder’s right to a fair trial. The remark also resulted in a constitutionally unfair trial...