by Sam Rutherford

The Supreme Court of Hawai’i reversed a murder conviction for prosecutorial misconduct where a deputy prosecutor described the defendant as a liar and inserted personal opinions concerning the defense theory during closing arguments.

Background

On June 1, 2021, just after midnight, Elijah Horn was near Kuhio Beach in Waikīkī with four women he had just met. Elian Delacerda and Osvaldo Castaneda-Pena approached the group and began arguing with them. Horn called his friend and roommate, Oscar K. Cardona, Jr., for help.

A full-blown melee ensued after Castaneda-Pena punched Horn. Horn and one of the women retaliated by striking Castaneda-Pena with a skateboard. Delacerda punched Cardona during the scuffle, causing Cardona’s glasses to fall off. Cardona stabbed Delacerda several times during the fight. He died at the scene from a knife wound to his heart.

The State charged Cardona with second-degree murder, alleging he knowingly and intentionally caused Delacerda’s death. Cardona, who claimed to have poor uncorrected eyesight, contended that he did not intentionally stab Delacerda because he could not see what he was doing during the fight after losing his glasses and that he was acting in self-defense after being struck by Delacerda first.

During closing arguments, the deputy prosecutor inferred that Cardona was lying about his poor eyesight and that he didn’t act in self-defense because he was never frightened by either Delacerda or Castaneda-Pena. Instead, the prosecutor argued that Cardona “owned those streets” and was a Waikīkī “enforcer.”

Cardona was found guilty as charged and sentenced to life in prison with the possibility of parole. He timely appealed. The Intermediate Court of Appeals rejected his prosecutorial misconduct arguments and affirmed the conviction. The Hawai’i Supreme Court granted certiorari review.

Analysis

The primary issue on appeal was whether the deputy prosecutor committed misconduct during closing arguments. “Prosecutorial misconduct” is a legal term referring to any improper action by a prosecutor regardless of whether it’s harmless or unintentional. State v. Borge, 526 P.3d 435 (Haw. 2023). Such misconduct warrants a new trial whenever the actions of a prosecutor cause prejudice to the defendant’s right to a fair trial. State v. Austin, 422 P.3d 18 (Haw. 2018).

Reversal is required even if the defendant failed to object to the misconduct so long as there is a reasonable possibility that it might have affected the trial’s outcome. State v. Hirata, 520 P.3d 225 (Haw. 2022). In making this determination, the reviewing court must consider “the nature of the prosecuting attorney’s conduct, promptness or lack of a curative instruction, and strength or weakness of the evidence against defendant.” Id.

The Court found that the deputy prosecutor in Cardona’s case made numerous statements during closing arguments that amounted to misconduct under this standard.

First, the deputy prosecutor inferred that Cardona was a liar by stating that “people lie” and “Come on. Be truthful.” But it is improper for prosecutors to say or infer that the defendant or other witnesses lied because “such statements are functionally equivalent to the prosecutor expressing a personal opinion as to the veracity of a witness.” Austin. Because this is exactly what the prosecutor did in Cardona’s case, the Court ruled that the statements “constituted prosecutorial misconduct.”

Next, the deputy prosecutor declared that Cardona was not “scared” during the fight, “looked like he owned those streets,” and was an “enforcer.” Prosecutors, however, may not draw improper or unsupported inferences from the evidence presented at trial during closing arguments. See State v. Basham, 319 P.3d 1105 (Haw. 2014). No evidence presented at trial supported these inferences. The Court explained that the alleged fact that Cardona didn’t seem scared on the streets in general didn’t have any bearing on whether he was scared at the moment he was punched by the victim. The prosecution’s statements were likely meant to improperly “enflame the passions of the jury,” according to the Court. Basham. Consequently, the Court ruled that these statements were also improper and constituted prosecutorial misconduct.

Finally, the deputy prosecutor stated that “the evidence doesn’t lie” and that there is “no credible, independent evidence” that Cardona couldn’t see without his glasses. Yet, defendants are entitled to testify about their visual perception, State v. Vliet, 983 P.2d 189 (Haw. 1999), and prosecutors must “refrain from expressing their personal views as to a defendant’s guilt or credibility of witnesses.” See State v. Marsh, 728 P.2d 1301 (Haw. 1986). The Court determined that the deputy prosecutor’s statements “implied his personal views regarding Cardona’s credibility.” However, that constitutes misconduct. Thus, the Court concluded that all the statements at issue “were not benign or reasonable inferences; rather, they constituted prosecutorial misconduct.”

The Court explained that the statements violated Cardona’s right to a fair trial for two reasons. First, because defense counsel failed to object to the prosecutor’s improper remarks, no curative instructions were given by the trial court. But, even if they had been given, the Court recently recognized that such “instructions are not particularly effective.” Hirata.

Second, because the case “hinged entirely upon Cardona’s testimony, as he was the only one who testified about what happened between him” and the victim, his credibility was “particularly important.” So, the prosecutor’s improper statements during closing arguments improperly impacted the jury’s assessment of that issue, thereby resulting in significant prejudice to Cardona, the Court concluded. See State v. Williams, 491 P.3d 592 (Haw. 2021).

Thus, the Court held that “prosecutorial misconduct prejudiced Cardona’s right to a fair trial in violation of the due process clause of Article I, Section 5 of the Hawai’i Constitution” and was “not harmless beyond a reasonable doubt because there is a reasonable possibility that it affected the outcome of Cardona’s trial.”

Conclusion

Accordingly, the Court reversed Cardona’s conviction and remanded the case for a new trial. See: State v. Cardona, 556 P.3d 369 (Haw. 2024). 

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