State v. Pasene

439 P.3d 864

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

v.Iosefa Meafua PASENE, Petitioner/Defendant-Appellant and Zorro R. Rye, aka Zorro Ramon Rye, Respondent/Defendant.

SCWC-15-0000156

Supreme Court of Hawai‘i.

APRIL 22, 2019

Thomas M. Otake, Honolulu, for petitioner

Brian R. Vincent for respondent

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

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.

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.

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 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 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 ...