State v. Willis

154 Haw. 160

548 P.3d 714

STATE of Hawai‘i, Plaintiff-Appellee,

v.Erik WILLIS, Defendant-Appellant

NO. CAAP-22-0000464

Intermediate Court of Appeals of Hawai‘i.

April 30, 2024

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 1CPC-20-0000887)

On the briefs:

Eric A. Seitz, Della A. Belatti, Jonathan M.F. Loo, Honolulu, and Kevin Yoklen for Defendant-Appellant

Brian Vincent, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee

LEONARD, ACTING CHIEF JUDGE, AND HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

Defendant-Appellant Erik Willis (Willis) appeals from the Amended Judgment of Conviction and Sentence (Amended Judgment), entered on July 20, 2022, in the Circuit Court of the First Circuit (Circuit Court).¹ After a jury trial, Willis was convicted of Attempted Murder in the Second Degree, in violation of Hawai‘i Revised Statutes (HRS) §§ 705-500² and 707-701.5³

On appeal, Willis contends that: (1) the Circuit Court "erred in denying [Willis’s] Motion to Dismiss the Indictment for lack of probable cause"; (2) the Circuit Court "erred in denying [Willis’s] Motion to Suppress Identification of [Willis]"; (3) "[t]he prosecutor committed multiple, continuing, and egregious acts of misconduct throughout the course of the trial and especially during closing arguments that violated [Willis’s] constitutional right to a fair trial"; (4) the Circuit Court "erred in denying [Willis’s] Motion for Judgment of Acquittal"; and (5) the Circuit Court "abused its discretion in denying [Willis’s] Motion for New Trial based on sufficiency of the evidence and prosecutorial misconduct."

We hold that the Circuit Court did not err in denying Willis’s motion to dismiss the indictment for lack of probable cause, and in denying Willis’s motion to suppress the complaining witness’s (M.K.) identification of Willis as her assailant. In denying the motion to suppress, the Circuit Court did not clearly err in determining that M.K.’s identification was sufficiently reliable for presentation to the jury under the totality of the circumstances, based on the court’s assessment of the factors established in State v. Kaneaiakala, 145 Hawai‘i 231, 450 P.3d 761 (2019), for evaluating an eyewitness identification obtained through an impermissibly suggestive procedure.

[1] We further hold, however, that the deputy prosecuting attorney (DPA) committed prosecutorial misconduct⁴ during his closing argument, when he argued to the jury that Willis was depicted in a surveillance video after the attack leaving a work sink, and "we know from [witness] Edward Leal [(Leal)] that [Willis] washed his hands and his face because he had blood on them." The DPA’s statement referred to evidence of blood that was not in the record and misrepresented the testimony of the identified witness. Another statement by the DPA minutes later - that "after he stabbed [M.K.], [Willis] got blood on [his t-shirt]" – also introduced new evidence of blood in closing argument and amounted to misconduct. Based on the serious nature of the DPA’s conduct, the lack of a curative instruction, and the heavy dependence of the conviction on M.K.’s credibility, we conclude that the DPA’s improper statements about blood on Willis and his shirt were not harmless beyond a reasonable doubt, and his conviction must therefore be vacated. Relatedly, we hold that the Circuit Court erred in denying Willis’s motion for a new trial based on prosecutorial misconduct in introducing this new blood evidence in closing argument.

Finally, we hold that the Circuit Court did not err in denying Willis’s motion for judgment of acquittal. Viewing the evidence as we must in the light most favorable to the prosecution, there was sufficient evidence to support a prima facie case so that a reasonable mind might fairly conclude that Willis was M.K.’s assailant and was guilty beyond a reasonable doubt of attempted murder in the second degree. This evidence included M.K.’s testimony regarding the attack and surveillance videos that largely corroborated M.K.’s description of her attacker.

Accordingly, we vacate the Amended Judgment based on prosecutorial misconduct and remand the case for a new trial.

I. Background

On July 8, 2020, at about 1:45 p.m., M.K., then aged 17, was stabbed while lying on her stomach on the beach in Kahala near 4671 Kahala Avenue. M.K. sustained life-threatening injuries, lost a significant amount of blood, and was rushed to the hospital for emergency medical treatment. Fortunately, she survived the stabbing.

During the course of their investigation, Honolulu Police Department (HPD) officers recovered surveillance video footage from 5605 Haleola Street, Bus No. 532, 4671 Kahala Avenue, 4635 Kahala Avenue, and 948 Pueo Street. The recovered video footage depicts events recorded on July 8, 2020, at the following times:⁵

• 12:29 p.m.: The video footage from 5605 Haleola Street shows "a fair[-]skinned man, with dark curly hair, a blue disposable face mask, a clean white t-shirt, tan pants, and dark colored shoes with white striping on the side." HPD Corporal Matthew Motas (Corporal Motas), who had mentored Willis during the period from September 2015 to January 2016, positively identified the man in the video footage as Willis.

• 1:11 to 1:25 p.m.: Bus 532’s video footage shows "a fair[-]skinned man, with dark curly hair, a blue disposable face mask, a clean white t-shirt, tan pants, and dark colored shoes. Bus 532 picks up the man at about 1:11 p.m. at the bus stop located at the intersection of Kalanianaole Highway and Halemaumau Street [and] travels to Kahala Avenue [before] the man exits the bus at about 1:25 p.m. at a bus stop located near 4671 Kahala Avenue." Corporal Motas positively identified the man in the video footage as Willis.

• 1:26 p.m.: The video footage from 4671 Kahala Avenue shows "a man with dark curly hair, a white t-shirt, tan pants, and dark shoes with white marking on the side. The man is walking on a beach access walkway from Kahala Avenue towards the beach."

• 1:46 p.m.: The video footage from 4635 Kahala Avenue shows "a person with dark curly hair, no shirt, tan pants, and dark shoes run across a construction site immediately adjacent to the property. The man comes running from the direction of the beach[,] runs to a sink[,] and appears to wash himself off."

• 3:56 p.m. to 4:00 p.m.: The video footage from 948 Pueo Street shows "a fair[-]skinned man, with dark curly hair, a blue disposable face mask, a soiled white t-shirt, tan pants, and dark colored shoes with white striping on the side." Corporal Motas positively identified the man in the video footage as Willis.

• 4:15 p.m. to 4:26 p.m.: Bus 532’s video footage shows "a fair[-]skinned man, with dark curly hair, a blue disposable face mask, a soiled white t-shirt, tan pants, and dark colored shoes. Bus 532 picks up the man at about 4:15 p.m. at a bus stop located on Pueo Street. Bus 532 travels to Kalanianaole Highway and the man exits the bus at about 4:26 p.m. at a bus stop located at the intersection of Kalanianaole Highway and Halemaumau Street." Corporal Motas positively identified the man in the video footage as Willis.

• 4:35 p.m.: The video footage from 5605 Haleola Street shows "a fair[-]skinned man, with dark curly hair, a blue disposable face mask, a soiled white t-shirt, tan pants, and dark colored shoes with white striping on the side." Corporal Motas positively identified the man in the surveillance video footage as Willis, who "is depicted walking toward his grandparents’ house."

(Record citations omitted.)

On July 11, 2020, HPD officers arrested Willis at his grandparents’ home in Niu Valley. They did not have permission or a warrant to enter the home. Once inside, the police came across shoes and a shirt that matched the suspect’s clothing. Nearly two hours after arresting Willis, the police seized the shoes and the shirt from the home.

On July 24, 2020, a grand jury indicted Willis for attempted murder in the second degree.

On November 16, 2020, Willis filed a motion to dismiss the indictment with prejudice, a motion to suppress evidence and statements obtained pursuant to the warrantless entry and search, and a motion to suppress the identification of Willis as M.K.’s assailant. The Circuit Court heard the motion to dismiss the indictment on January 28, 2021, and the motions to suppress on January 28 and February 23, 2021.

The Circuit Court denied the motion to dismiss the indictment and the motion to suppress the identification of Willis, but granted the motion to suppress the shoes, the shirt and the statements Willis made when he was arrested. The State appealed from the order granting Willis’s motion to suppress. The Hawai‘i Supreme Court accepted the State’s application for transfer and affirmed the order granting the motion to suppress. State v. Willis, 150 Hawai‘i 235, 238, 241, 500 P.3d 420, 423, 426 (2021).

A jury trial began on March 29, 2022. Numerous witnesses, including M.K. and Corporal Motas, testified for the State. In her testimony, M.K. recounted the stabbing attack, described her identification of Willis as her assailant three days after the attack, and identified Willis in the courtroom as her assailant. After the State rested, Willis made an oral motion for a judgment of acquittal, arguing that the evidence was insufficient to support a prima facie case such that a reasonable jury could find guilt beyond a reasonable doubt. The Circuit Court denied the motion.

On April 7, 2022, the jury found Willis guilty as charged of attempted murder in the second degree.

On April 18, 2022, Willis filed a renewed motion for entry of a judgment of acquittal or, in the alternative, for a new trial. He argued that the jury’s verdict was not supported by substantial evidence and that the DPA committed prosecutorial misconduct by, among other things, arguing from evidence not in the record and making arguments that had no factual support in the...