STATE OF HAWAI`I, Plaintiff-Appellee, v. ROBIN C. KLINGE, Defendant-Appellant
Defendant-appellant Robin C. Klinge (Klinge) appeals from the second circuit court's judgment, guilty conviction, and sentence filed December 3, 1997. On October 1, 1997, a jury found Klinge guilty of terroristic threatening in the first degree in violation of Hawai`i Revised Statutes (HRS) § 707-716(1)(b) (1993). (1) On appeal, Klinge contends that: (1) his constitutional right to a unanimous verdict was violated because the requisite mental states with respect to the results of the prohibited conduct under HRS § 707-715 (2) gave rise to separate crimes; and (2) the trial court erred in failing to grant his motion for mistrial based on prosecutorial misconduct. We hold that (1) Klinge's constitutional right to a unanimous verdict was not violated inasmuch as HRS §§ 707-715(1) and (2) do not give rise to two separate and distinct crimes; and (2) The trial court did not abuse its discretion in denying Klinge's motion for mistrial based on prosecutorial misconduct. Accordingly, we affirm the circuit court's judgment, guilty conviction and sentence filed on December 3, 1997.
I. BACKGROUND
On April 22, 1997, the prosecution filed a complaint against Klinge charging the offense of terroristic threatening in the first degree. Following a jury trial, Klinge was found guilty as charged and sentenced to serve a five-year term of probation, subject to a one-year term of incarceration as a special condition of probation. The following facts were adduced at trial and are relevant to the issues in this appeal.
A. Jury Selection/Voir Dire
During jury selection, the circuit court initially questioned the prospective jurors whether they could wait until deliberation before deciding whether Klinge was guilty beyond a reasonable doubt of the offense charged. Likewise, during voir dire, defense counsel focused on the court's instruction that the jurors should keep an open mind. During voir dire of Juror Nettleship, the prosecutor noted, "Based upon the evidence that comes before you at trial. You can decide whatever you want to, but as far as deliberation, you wait until the end." The prosecutor also stated, "[t]he evidence you hear in the trial you are going to make your own decision individually on that. You can start deciding whenever you want to decide." The circuit court immediately sustained defense counsel's objections to the prosecutor's remarks. Following jury selection, the circuit court again instructed the jurors that they must wait until the commencement of deliberations before determining whether the defendant was guilty or not guilty.
B. The Churches and Schools
1. March 21, 1997 -- Church of Jesus Christ of Latter Day Saints
William Riedel (Riedel), a licensed general contractor, testified that, on March 21, 1997, he was working with his construction crew at the Church of Jesus Christ of Latter Day Saints (LDS) in Kahului, Maui. While working at the LDS, Riedel noticed a long cylindrical object approximately one foot in length near the LDS satellite dish. Riedel described the object as being two inches in diameter, with wooden spoons taped across it. As Riedel picked up the object, he noticed that the object had what appeared to be green wire wrapped lengthwise around the object and foil tape attached at the ends with coins underneath.
Riedel testified that he had previously received intensive three-day training with dynamite and demolition work. Based on his training, Riedel became suspicious of the object and placed it back down. Thereafter, Riedel called the police because he and his crew agreed that the object "pretty much looked like a bomb."
Maui police officers Jeffrey Mahoney (Officer Mahoney) and Guy Souza (Officer Souza) responded to Riedel's call. Upon their arrival, neither Officer Mahoney nor Officer Souza went near the object. Instead, the officers secured a perimeter around the area where the object was located. Riedel and his crew were not allowed to return to the area where the object had been found and were instructed to stay three hundred feet away.
Officer Cedric Zumwalt (Officer Zumwalt) also responded to Riedel's call. Officer Zumwalt testified that his responsibility at the LDS church was to secure the scene, make sure no one was in the building, and seal off the area. Officer Zumwalt also testified that he observed the object from a distance of six to eight feet because the object "was kind of scary looking." Officer Zumwalt decided to call in a bomb squad from Honolulu because the object appeared to be "some type of explosive device, some kind of bomb or something." According to Officer Zumwalt, the object was one foot in length, two inches in diameter, and covered in plastic with a nylon cord wrapped lengthwise around it.
United States Army Staff Sergeant Timothy James Choulat (Sgt. Choulat), of the Sixth Explosive Ordinance Disposal Unit (EODU) at Schofield Barracks, testified that he received a request from the Maui Police Department, on March 21, 1997, to have a team ascertain whether a suspicious item was actually an explosive device. Upon arrival, Sgt. Choulat expanded the evacuation area and ordered the closure of a nearby street. Sgt. Choulat recalled that he first thought the cylindrical object was made of piping material that is commonly used in explosive devices. After taking Polaroid shots and x-rays of the object, Sgt. Choulat and his team determined that the object was not an explosive device.
2. March 29, 1997 -- Christ the King School
Sister Julia Acain (Sister Julia), who resided at the convent on the campus of Christ the King School in Kahului, recounted that, on March 29, 1997, she observed an object shaped like a cylinder, about ten inches in length, in the yard near the convent. Noting that the object was wrapped in foil with a dollar bill, Sister Julia testified that she did not touch the item because "it looked scary" and that "[i]t was frightening because it looked suspicious." Sister Julia called the police shortly thereafter.
Officer Greg Alejo of the Maui Police Department testified that he and the other responding officers evacuated the convent and closed off adjoining streets. The residents of the convent were not allowed to remain on the school's premises or return to the convent. According to Officer Alejo, he did not touch the item because he "didn't trust it" and "did not want to loose [sic] . . . [an] arm or anything like that." Officer Alejo further testified that two other objects were located on the campus in the playground area. Both objects consisted of a sandwich bag containing a tampon applicator with coins wrapped around it and a dollar bill attached to the blue wire that was used to close the sandwich bag.
Again, the Maui Police Department called in a bomb squad from Honolulu. Sergeant Joseph Allen Latham (Sgt. Latham) of the Army EODU testified that, although x-rays were taken of the item, he was unable to determine whether the object was an explosive device. Sgt. Latham opened the package remotely, using a direct blast to one end of the object. Once the object was opened, Sgt. Latham saw that the object consisted of a rolled up magazine with a couple of keys in it.
3. March 31, 1997 -- Christ the King Church
Sister Angie Laurenzo (Sister Angie) testified that, on the morning of March 31, 1997, before the start of the school day, she proceeded to the school restrooms to unlock them before the arrival of the students. As Sister Angie entered the girls' restroom, she observed the following items on the floor: a few money bills with stick figures drawn on them, a cigarette lighter with coins taped to it, a tampon, an object that looked like a plastic eggshell, and a flower. Sister Angie testified that she remembered hearing on the radio about bomb threats and that this was frightening to her, especially because of the lighter. Sister Angie did not touch anything and called the police. The police recovered the items from the floor without evacuating the building or calling in a bomb squad.
4. April 4, 1997 -- Saint Anthony's High School
Sister Sarah Sanders (Sister Sarah), a teacher at Saint Anthony's High School, testified that, on April 4, 1997, although school was not in session on that day, she was at the school feeding fish. After Sister Sarah had fed the fish, Aida Negre, a school custodian, asked Sister Sarah to go to the girls' restroom. According to Sister Sarah, Negre seemed frightened and wanted to show her something that she had found there.
In the restroom, Sister Sarah observed a black object lying on the floor, but did not go near it because "the object appeared to be a small bowl shaped piece with something sticking off the top . . . and two wires crossed in front." Sister Sarah also saw that the upper portion of the object was wrapped by United States currency bills. Based on her observations, Sister Sarah believed that the item was an explosive device and thereafter secured the restroom.
Brother Jim Dods (Brother Jim), principal of Saint Anthony's High School, testified that he was asked by Negre and Sister Sarah to inspect the item that had been found in the restroom. Because he was aware of the bomb-like item found at Christ the King School, because the item was bundled with wires, and because of other incidents on campus, Brother Jim did not touch the item. According to Brother Jim, the object appeared to be something dangerous. Brother Jim immediately called the police.
Upon arrival of the fire and police department officials, Officer Paul Bailey inspected the item and secured the building where the object was found. Officer Bailey described the item as suspicious, "appear[ing] to be . . . the black top of a power steering unit with two wires sticking out of it and it was wrapped in a dollar bill." The wires "were not connected to each other[,] and they were not connected to anything else." In his report, Officer Bailey wrote that the item resembled an explosive device.
Lieutenant Trung Phan, of the Army EODU, testified that he and another team member performed an x-ray of the device. After he did not see anything suspicious from the x-ray images, Lt. Phan removed the item "remotely" with his equipment and pulled the item apart. Lt. Phan explained that the item was made up of a couple dollar bills held tightly to a brake fluid cap by rubber bands and a couple of wires.
Other items were found at Saint Anthony's at various times throughout February and March 1997. These items included: (1) a wrench with four one-dollar bills tied tightly around it with a shoe string; (2) a pencil with a dollar tied tightly around it by a string or ribbon; (3) a package containing a plastic toy gun, a dollar bill, coins, a hair "scrunchie," and a nail; (4) another package containing a video cassette of a Mercury Tracer automobile, a yellow Alamo Rent-a-Car sticker, a booklet, a map, an envelope, a bracelet, a sign, a sealed tampon, dollar bills, white paper, and a magazine page of nude women; and (5) yet another package containing a card, audio cassette, a Susan B. Anthony dollar, and a "pornographic" picture.
C. Klinge's Testimony
Klinge testified that for approximately one-year he had been leaving objects at various churches. While cleaning cars at his job at Alamo Rent-a-Car, he would find toys and other items, tie money around the items, and throw the items in various church yards on the way home on his bike. Klinge "felt no harm could come by throwing money in the church[,]" that he always attached money to the items as offerings, and that either the church or the kids would find the money and someone would make use of it. He also testified that, because he was a little superstitious, he would make a wish when he left the "offerings" at the churches.
Klinge further testified that some of the magazines he had left had been sent back to him because his subscription labels were still on the magazines. When asked on cross-examination about his reason for leaving the tampons, Klinge testified that he attached them so that God would take notice of his offerings.
According to Klinge, he did not know that he was scaring people until the police detectives informed him as such on April 7, 1997. Klinge stated that "when I found out that I was scaring the people at the church I felt bad" because he had not intended to frighten them. When questioned whether he knew that the people at the church would be upset by the tampons and pictures of nude women, Klinge replied that it did not bother him that children would look at the pictures and that, in any event, he "didn't think it would scare 'um.'" Klinge further stated that his purpose in leaving the objects was to tease the churches.
D. Jury Instructions and Closing Arguments
Following the presentation of evidence, Klinge requested, in connection with the verdict form, that the verdict be divided between either "terrorizing" or "evacuation" for purposes of unanimity to prove the requisite state of mind for terroristic threatening in the first degree. The circuit court denied Klinge's request, stating that the unanimity instruction was sufficient.
During the prosecution's closing argument, the prosecutor made the following statement: "What this case is all about is this: The people's safety is the highest law. That's what this is all about, the people's safety is the highest law." Following defense counsel's closing argument, the prosecutor, on rebuttal, made the following statement:
The defense lawyer did not tell you that like he's taking everything out of context like he's not going to give you the whole story. He's not going to give you the whole picture because he has a duty [to] get his client off.
The court sustained defense counsel's objection to this remark and ordered the remark stricken.
Klinge later moved for a mistrial based upon prosecutorial misconduct, arguing that during rebuttal, the prosecution misstated the facts, misstated the law, misstated defense counsel's closing argument, and also "cast disparaging dispersions on [defense counsel's] professionalism." The circuit court admonished the prosecution, but denied Defendant's motion.
II. STANDARDS OF REVIEW
A. Jury Instructions
"'When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.'" State v. Ortiz, 91 Hawai`i 181, 190, 981 P.2d 1127, 1136 (1999) (quoting State v. Kinnane, 79 Hawai`i 46, 49, 897 P.2d 973, 976 (1995) (quoting State v. Kelekolio, 74 Haw. 479, 514-15, 849 P.2d 58, 74 (1993) (citations omitted))). See also State v. Hoey, 77 Hawai`i 17, 38, 881 P.2d 504, 525 (1994). "Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." State v. Sawyer, 88 Hawai`i 325, 330, 966 P.2d 637, 642 (1998) (citing State v. Robinson, 82 Hawai`i 304, 922 P.2d 358 (1996)).
[E]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to the conviction.
State v. Tabigne, 88 Hawai`i 296, 302, 966 P.2d 608, 614 (1998) (citations omitted). If there is a reasonable possibility that error might have contributed to a conviction in a criminal case, then the error cannot be harmless beyond a reasonable doubt, and the conviction must be set aside. State v. Cullen, 86 Hawai`i 1, 8, 946 P.2d 955, 962 (1997) (citations omitted).
B. Constitutional Questions
We review questions of constitutional law "by exercising our own independent constitutional judgment based on the facts of the case." State v. Rogan, 91 Hawai`i 405, 411, 984 P.2d 1231, 1237 (1999) (quoting State v. Arceo, 84 Hawai`i 1, 11, 928 P.2d 843, 853 (1996) (quoting State v. Trainor, 83 Hawai`i 250, 255, 925 P.2d 818, 823 (1996), and State v. Lee, 83 Hawai`i 267, 273, 925 P.2d 1091, 1097 (1996)). Accordingly, we review questions of constitutional law de novo under the "right/wrong" standard. State v. Mallan, 86 Hawai`i 440, 443, 950 P.2d 178, 181 (1998) (citation omitted).
C. Statutory Interpretation
"'[T]he interpretation of a statute . . . is a question of law reviewable de novo.'" State v. Kotis, 91 Hawai`i 319, 327, 984 P.2d 78, 86 (1999) (quoting Arceo, 84 Hawai`i at 10, 928 P.2d at 852 (quoting State v. Camara, 81 Hawai`i 324, 329, 916 P.2d 1225, 1230 (1996) (citations omitted))).
D. Motion for Mistrial
"The denial of a motion for mistrial is within the sound discretion of the trial court and will not be upset absent a clear abuse of discretion." Rogan, 91 Hawai`i at 411, 984 P.2d at 1237 (citing State v. Loa, 83 Hawai`i 335, 349, 926 P.2d 1258, 1272, reconsideration denied, 83 Hawai`i 545, 928 P.2d 39 (1996) (citations omitted). "The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant." Id. (quoting State v. Ganal, 81 Hawai`i 358, 373, 917 P.2d 370, 385 (1996) (quoting State v. Furutani, 76 Hawai`i 172, 178-79, 873 P.2d 51, 57-58 (1994))).
E. Prosecutorial Misconduct
"Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of 'whether there is a reasonable possibility that the error complained of might have contributed to the conviction.'" Rogan, 91 Hawai`i at 412, 984 P.2d at 1238 (quoting State v. Balisbisana, 83 Hawai`i 109, 114, 924 P.2d 1215, 1220 (1996) (quoting State v. Holbron, 80 Hawai`i 27, 32, 904 P.2d 912, 917, reconsideration denied, 80 Hawai`i 187, 907 P.2d 773 (1995))) (citations and internal quotation marks omitted). "Factors to consider are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." Id. (quoting State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378 (1992) (citation omitted).
F. Plain Error
"We may recognize plain error when the error committed affects substantial rights of the defendant." Kotis, 91 Hawai`i at 329, 984 P.2d at 88 (quoting State v. Lee, 90 Hawai`i 130, 134, 976 P.2d 444, 448 (1999) (citations and internal quotation signals omitted). See also Hawai`i Rules of Penal Procedure (HRPP) Rule 52(b) (1993) ("Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). III. DISCUSSION
A. Klinge's constitutional right to a unanimous verdict was not violated inasmuch as HRS §§ 707-715(1) and (2) do not give rise to two separate and distinct crimes.
Klinge first contends that his constitutional right to a unanimous verdict was violated because HRS §§ 707-715(1) and 707-715(2) give rise to two separate and "inherently different" offenses. Klinge specifically alleges that, because the two means of proving the "intent element" (3) of terroristic threatening under HRS §§ 707-715(1) and 707-715(2) do not implicate "notions of equivalent blameworthiness or culpability," the trial court erred in failing to issue an instruction guaranteeing unanimity as to either "intent." We disagree.
Under HRS § 702-205 (1993), "[t]he elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as: (a) Are specified by the definition of the offense[.]" Moreover, HRS § 701-114(1) (1993) requires proof beyond a reasonable doubt of each element of the offense, as well as the state of mind required to establish each element of the offense. See State v. Wallace, 80 Hawai`i 382, 412, 910 P.2d 695, 725 (1996) (quoting Holbron, 80 Hawai`i at 39, 904 P.2d at 924 (citations omitted)). In addition, HRS § 702-207 provides that "[w]hen the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears." (Emphasis added.) See also Wallace, 80 Hawai`i at 412, 910 P.2d at 725 (citation omitted).
Terroristic threatening in the first degree under HRS § 707-716(b) is the act of "committing terroristic threatening . . . by threats made in a common scheme against different persons." HRS § 707-715 defines the offense of "terroristic threatening" as follows:
A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person or serious damage to property of another or to commit a felony:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person; or
(2) With intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation.
See supra note 1. The defining statute establishes the offender's conduct as a "threat[], by word or conduct" to (1) cause bodily injury, (2) cause property damage, or (3) commit a felony. It also describes two alternative, and equally culpable, states of mind applicable to that conduct: (1) the intent to terrorize, or in reckless disregard of the risk of terrorizing; or (2) the intent to cause, or in reckless disregard of the risk of causing evacuation. See also commentary to Model Penal Code (MPC) § 211.3 (4) ("Section 211.3 of the Model Penal Code states a general proscription of threat of violence made in order to terrorize another or to cause serious public inconvenience.") (Emphasis added); State v. Pukahi, 70 Haw. 456, 458, 776 P.2d 392, 393 (1989) ("in the case of terroristic threatening, [a] threat becomes a crime only when it is coupled with[, inter alia], an intent to terrorize, or a reckless disregard of the risk of terrorizing").
As this court emphasized in State v. Chung, 75 Haw. 398, 413, 862 P.2d 1063, 1071 (1993), "'[a]ctual terrorization is not a material element' of the offense of terroristic threatening." (quoting State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987)) (emphasis added). In fact, to be subject to prosecution for terroristic threatening, a defendant need not communicate the threat directly or indirectly to the target of the threat, but may communicate it to a third party. Id. at 412, 862 P.2d at 1071 (citing State v. Meyers, 72 Haw. 591, 594, 825 P.2d 1062, 1064 (1992) ("a person making threats does not commit a crime until the threat is heard by one other than the speaker"). Simply put, the offender need not cause a result. See also commentary to MPC § 211.3 (the MPC provision does not require an element of apprehension in the victims but only that the actor's purpose be to "terrorize" or "cause evacuation of a building").
In the instant case, the trial court instructed the jury with regard to the offense of terroristic threatening in the first degree as follows:
A person commits the offense of terroristic threatening in the first degree, if with intent to terrorize, or in reckless disregard of the risk of terrorizing another person, and/or with intent to cause or in reckless disregard of the risk of causing the evacuation of a building, place of assembly, or facility of public transportation by threats made in a common scheme against different persons, he did threaten by word or conduct to cause bodily injury to another person or serious damage to the property of another.
There are five material elements of the offense of terroristic threatening in the first degree each of which the prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That during or about the period of March 21, 1997, through April 7, 1997;
2. In the County of Maui, State of Hawai`i;
3. [Defendant] . . .;
4. In a common scheme against different persons[;]
5. Threatened, by word or conduct, to cause bodily injury to another person or serious damage to property of another:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person; or
(2) With intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation.
Klinge maintains that, based upon this instruction, the trial court gave the jury a choice between two separate and distinct crimes because HRS §§ 707-715(1) and 707-715(2) do not share in common the same elements (ie., the same prohibited act and result of the act). To the contrary, the enumerated statutory alternatives under HRS § 707-715(1) and (2) -- intent to terrorize or reckless disregard of terrorizing a person and intent to cause evacuation or reckless disregard of evacuation of a building -- refer to alternative means of satisfying the mens rea component of the offense of terroristic threatening.
In Schad v. Arizona, 501 U.S. 624 (1991), a plurality of the United States Supreme Court made plain that, consistent with the due process clause, a state court may determine that "certain statutory alternatives are mere means of committing a single offense, rather than as independent elements of the crime." Id. at 636. The plurality reasoned that, under Arizona law, neither premeditation nor intent to commit a felony is an independent element of first degree murder; rather, they are merely alternative means of satisfying the mens rea element of the crime. Id. at 637. Upholding the Arizona Supreme Court's determination that Arizona's first degree murder statute did not create two distinct crimes of murder, the plurality concluded that a separate verdict specifying felony murder was unnecessary. Id. at 636. See also United States v. Navarro, 145 F.3d 580 (3d Cir. 1998) (unanimity instruction with regard to defendant's mental state was not required where defendant violated money laundering statute enumerating three possible intents); State v. St. Pierre, 693 A.2d 1137 (Me. 1997) (defendant was not entitled to a unanimous verdict on the purpose for which he engaged in sexual contact; only one crime was involved, regardless of whether sexual contact occurred "for the purpose of arousing or gratifying sexual desire" or "for the purpose of causing bodily injury or offensive physical contact."); State v. Luster, 713 A.2d 277, 280 (Conn. 1998) (Because intent to commit assault and intent to commit sexual assault gave rise to the same criminal culpability for burglary in the first degree, unanimity regarding the defendant's intent was not required); James, 698 P.2d at 1167 ("where the alleged criminal deed is restricted to a single incident, any potential difference in the jurors' findings of intent versus wilful disregard is not significant when jurors unanimously agree upon the defendant's guilt of the crime").
While Schad is not controlling, its analysis and
reasoning are particularly persuasive here. Although the
plurality refused to adopt any bright line rule, it set forth a
test for determining whether alternative mental states merely
constitute a means of satisfying a single mens rea element, or
instead create separate crimes requiring individual proof. (5)
The
appropriate test under Schad appears to be whether the level of
verdict specificity required by the instructions was rational and
fair, considering history and practice, and the degree of
"blameworthiness and culpability." Schad, 501 U.S. at 637. The first prong looks to "history and wide practice as
guides to fundamental values." Id. In this regard, Klinge
maintains that, inasmuch as the alternatives enumerated in HRS
§ 707-715(1) and (2) have distinct foci and were enacted to
address two distinct concerns, the two constitute separate and
distinct crimes requiring a unanimous verdict as to which crime
was committed. That the legislature had slightly different
reasons in mind when enacting HRS § 707-715(1) and (2) does not
alone evince legislative intent to treat those subsections as
constituting two distinct crimes of terroristic threatening. Nor
does it negate the fact that either alternative gives rise to the
same criminal offense. In our view, Klinge's approach "rests on
the erroneous assumption that any statutory alternatives are ipso
facto independent elements defining independent crimes . . . and
[are] therefore subject to the axiomatic principle that the
prosecution must prove independently every element of the crime."
Schad, 501 U.S. at 636. Klinge also fails to cite any "substantial historical
and contemporary echoes" to support its holding that a unanimity
instruction is necessary where a statute enumerates equivalent
alternate means of satisfying the mental state element. Although
HRS § 707-715 lacks an expansive statutory history, this
jurisdiction's case law and contemporary practice confirm that
HRS § 707-715(1) and (2) do not create independent elements
defining separate crimes. See State v. Burdett, 70 Haw. 85, 88,
762 P.2d 164, 167 (1988) ("terroristic threatening requires a
mental state that is intentional or reckless."); State v. Alston,
75 Haw. 517, 540-41, 865 P.2d 157, 169 (1994); Commentary on HRS
§ 707-715 (referring to the provision in the singular as "this
section" and "the offense"); MPC § 211.3 (setting forth
substantially similar language as HRS § 707-715). Moreover, the general principle that juries need not
agree on alternative means of establishing the mental state
component possessed by the defendant is well established and
widely recognized. See, e.g., Sullivan v. Borg, 1 F.3d 926 (9th
Cir. 1993) (instruction allowing jury to convict defendant of
first degree murder without unanimity as to whether he had
committed felony murder or premeditated murder did not violate
due process), certiorari denied, 510 U.S. 1096 (1994); Luster,
713 A.2d at 280 (because intent to commit assault and intent to
commit sexual assault give rise to the same criminal culpability
for burglary in the first degree, unanimity regarding the
defendant's intent was not required); State v. Smith, 490 N.W.2d
40 (Wis. App. 1992) (jurors need not unanimously agree that
defendant acted with the "purpose to cause a fire or that he
acted with an awareness that his conduct was practically certain
to cause that result" because the two were alternative means in
which intent is manifested under the state arson statute),
certiorari denied, 507 U.S. 1035 (1993); State v. Bey, 610 A.2d
814, 826 (N.J. 1992) (because knowing murder and purposeful
murder are equivalent expressions of moral culpability, jury need
only agree unanimously that defendant's state of mind was either
purposeful or knowing); State v. Fortune, 909 P.2d 930 (Wash.
1996) (defendant's due process rights were not violated by his
being convicted of first-degree murder without having unanimous
jury finding as to which of two alternative means, premeditated
or felony murder supported conviction); People v. Brown, 35
Cal.App.4th 708, 41 Cal. Rptr. 2d 321 (1995) (jury was not
required to unanimously agree on its theory of malice in finding
defendant guilty of second degree murder); Navarro, 145 F.3d 580
(failure to give specific unanimity instruction with regard to
mental state required to establish money laundering offense was
not plain error); State v. Buckman, 468 N.W.2d 589 (Neb. 1991)
(following Schad); People v. Davis, 8 Cal. App. 4th 28, 10 Cal.
Rptr. 2d 381 (1992) (California courts do not require that jurors
unanimously agree on the theory of criminal culpability
supporting their unanimous conclusion of guilt); Pierre, 693 A.2d
at 1139 (unanimity instruction was not required regarding purpose
for which defendant engaged in sexual conduct); State v. Russell,
733 P.2d 162, 167 (Utah 1987) (refusal to give requested
instruction that jury had to unanimously agree upon one of three
statutory sections regarding mens rea did not deny defendant's
right to unanimous jury verdict in second-degree murder trial,
where statute defined only one crime); State v. Salazar, 945 P.2d
996 (N.M. 1997) (jury need not be unanimous on one of the
alternate theories of first degree murder). The second prong of the Schad analysis asks whether HRS
§ 707-715(1) and (2) "reasonably reflect notions of equivalent
blameworthiness or culpability." Schad, 501 U.S. at 643.
Whenever "it is clear that such equivalence could reasonably be
found," alternative means should be allowed to satisfy the mental
element of a single crime. Id. at 644. See also Luster, 713
A.2d 277, 280 ("In situations where 'the alternatives of the mens
rea [intent] component give rise to the same criminal
culpability, it does not appear critical that the jury may have
reached different conclusions regarding the nature of the
defendant's intent if such differences do not reflect
disagreement on the facts pertaining to the defendant's
conduct.") (Brackets in original.) (Citation omitted and emphasis
added.) In the instant case, the second prong of the Schad
standard is clearly satisfied. (6) We perceive no practical
difference in culpability between intent to terrorize a person
and intent to evacuate a building. It is clear from the
definition of the offense that it is directed at a single evil --
the "threat" committed with a criminally culpable mental state.
HRS § 707-715(1) "addresses conduct causing serious alarm for
personal safety." Commentary on HRS § 707-715. HRS § 707-715(2)
"addresses conduct disrupting public services or activities" and
the "attendant dangers" involved. Id. (emphasis added). The
level of culpability between the two alternatives is not morally
disparate in any significant sense. That the intent to terrorize
involves apprehension or fear on the part of the recipient while
the intent to cause evacuation may not, (7) is unpersuasive. Either
alternative gives rise to the same criminal culpability. It is
of little consequence, therefore, that some jurors may have
believed that Klinge was guilty of terroristic threatening in the
first degree based on one alternative while others may have
believed he was guilty based on another, as long as such
differences did not reflect disagreement on the facts pertinent
to Klinge's conduct. See Arceo, 84 Hawai`i at 33, 928 P.2d at
875 (requiring juror unanimity regarding defendant's conduct). (8)
As the dissent itself acknowledges, the two alternatives will, in
many cases, be coextensive. (9) Given the intricacy of the law and complexity of
criminal conduct, Klinge's approach would, as a practical matter,
prove instructionally unworkable, cause needless confusion, and
create absurd results. Under the approach advanced by Klinge,
the jury presumably should have been required to unanimously find
one of each of the following alternatives: that Klinge
threatened by "word or conduct, to cause bodily injury to another
person or serious damage to property of another or to commit a
felony," and that Klinge performed the act "with the intent to
terrorize or in reckless disregard of the risk of terrorizing,"
or "with intent to cause or in reckless disregard of the risk of
causing evacuation." (Emphasis added.) Indeed, "[h]ow far up
the trunk and branches of the evidence tree must this unanimity
extend?" Russell, 733 P.2d at 171 (Stewart, J., concurring)
(citation omitted). Article I, sections 5 (10) and 14 (11) of the Hawai`i
Constitution prescribe the outer limits of required verdict
specificity. The instruction read in this case clearly comports
with our well-established notions of due process. This case
deals only with alternative means of satisfying the mental state
with regard to each element of the offense, not with alternative
courses of conduct. It matters little, therefore, that the jury
may have reached different conclusions regarding the nature of
Klinge's purpose at the time he "committ[ed] terroristic
threatening . . . by threats made in a common scheme against
different persons" even though the legislature may have had
different reasons for enacting the two provisions. The
threatening conduct is what the law prohibits. Either intent
gives rise to the same conduct and, therefore, the same crime. We are unpersuaded by Klinge's contention that a single
scheme of terroristic threatening in violation of HRS § 707-716(b) gives rise to independent elements defining separate
crimes simply because it was possible that he committed it with
two different purposes. We hold instead that HRS § 707-715
defines a single criminal offense. We further hold that HRS
§ 707-715(1) and (2) constitute alternative means of establishing
the mens rea of the offense of terroristic threatening -- either
one giving rise to the same criminal culpability. Accordingly,
the trial court in this case did not err in its instruction to
the jury. (12) B. The trial court did not abuse its discretion in
denying Klinge's motion for mistrial based on
prosecutorial misconduct. Klinge argues that the trial court erred in failing to
grant his motion for mistrial based on prosecutorial misconduct.
On October 1, 1997, defense counsel orally moved for a mistrial,
alleging that the prosecutor not only misstated the facts, misstated the law, misstated what I said, but []
also cast disparaging dispersions on my professionalism. I.e., [sic] I only
give this defense because I have to. Furthermore, he told the jury to do the right thing and not let him
walk away like he did from the police, which is discussing punishment. In denying Klinge's motion for mistrial, the trial court ruled,
"I did sustain your objection on at least one of those points,
and I would caution you, [prosecutor], that I will not in future
trials permit that to continue. But I don't think that the
damages are warranted to support a mistrial." On appeal, Klinge alleges that the prosecutor committed
the following acts of misconduct: (1) questioning the jury on
the issue of "legal insanity" during jury selection where it was
not a defense in the case, and "revisiting the issue of legal
insanity during jury selection immediately after being instructed
to move on"; (2) informing a juror in the presence of the entire
panel during jury selection that the juror was free to reach a
conclusion individually regarding the defendant's guilt at any
time during the trial; (3) questioning a witness with regard to a
matter which would require speculation of a fact bearing on a
material issue in the case; (4) during closing argument,
misinstructing the jury that "the peoples' safety is the highest
law"; (5) arguing to the jury that defense counsel concocted the
defense of lack of state of mind because he had a "duty [to] get
his client off"; and (6) during rebuttal closing argument,
misinstructing the jury on the material elements of the offense
of terroristic threatening. (13) We address each argument in turn. It is a well-settled principle in this jurisdiction
that [a]llegations of prosecutorial misconduct are reviewed under the
harmless beyond a reasonable doubt standard, which requires an
examination of the record and a determination of "whether there is a
reasonable possibility that the error complained of might have contributed
to the conviction." State v. Balisbisana, 83 Hawai`i 109, 114, 924 P.2d
1215, 1220 (1996) (quoting State v. Holbron, 80 Hawai`i 27, 32, 904 P.2d
912, 917, reconsideration denied, 80 Hawai`i 187, 907 P.2d 773 (1995))
(citations and internal quotation marks omitted); see also State v.
Sanchez, 82 Hawai`i 517, 528, 923 P.2d 934, 945 (App.), cert. denied, 84
Hawai`i 127, 930 P.2d 1015 (1996) (citation omitted). Factors to consider
are: (1) the nature of the conduct; (2) the promptness of a curative
instruction; and (3) the strength or weakness of the evidence against the
defendant. State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378
(1992) (citation omitted). Rogan, 91 Hawai`i at 412, 984 P.2d at 1238. Misconduct of a
prosecutor may provide grounds for a new trial where there is a
reasonable possibility that the misconduct complained of might
have contributed to the conviction. Id. However, under the
double jeopardy clause of article I, section 10 of the Hawai`i
Constitution, "reprosecution of a defendant after a mistrial or
reversal on appeal as a result of prosecutorial misconduct is
barred where the prosecutorial misconduct is so egregious that,
from an objective standpoint, it clearly denied a defendant his
or her right to a fair trial." (14) Id. at 423, 984 P.2d at 1249
(holding that "reprosecution is barred where, in the face of
egregious prosecutorial misconduct, it cannot be said beyond a
reasonable doubt that the defendant received a fair trial.") 1. Questioning the jury on the issue of "legal
insanity" during jury selection Klinge first argues that the prosecutor committed
misconduct by asking a prospective juror during jury selection
about "legal insanity" where insanity was not a defense at trial.
He alleges specifically that such questioning tended to cast
Klinge's character in a "negative light." The prosecutor's line
of questioning occurred as follows: [PROSECUTION]: Now, there's one last law I want to talk about and it is
a law that you are not going to hear, but a law that you may have in the
back of your minds. You are going to be hearing or viewing evidence.
Throughout the course of the trial there will be a lot of evidence. It is
going to be evidence that the police collected. It will be statements from
people that take the stand and testify. You may reach a conclusion in your
minds that hey, this person might be legally insane and that's what I am
going to bring up, legal insanity. [DEFENSE COUNSEL]: I'll object to that. That is not going to be a
defense. [PROSECUTION]: I want to make sure it is not, and these people -- THE COURT: I'll sustain the objection. Let's go on, Mr. Rivera. [PROSECUTION]: You can only follow the law the Judge will give you.
If the law -- if the Judge does not provide a law on legal insanity, then that
is something you cannot consider. [DEFENSE COUNSEL]: Your Honor, same objection. THE COURT: Sustained. Let's move on, Mr. Rivera. We are unpersuaded that the prosecutor's questions
regarding "legal insanity" amounted to prosecutorial misconduct.
The trial court promptly sustained defense counsel's immediate
objections. Moreover, during the prosecution's second comment,
the prosecutor correctly stated that the jurors could "only
follow the law the judge [gave them]." As such, the
prosecution's line of questioning was, in our view, merely an
attempt to explore the prospective jurors' ability to follow the
law and to disregard matters not before them. Accordingly, we
hold that this remark did not constitute prosecutorial
misconduct. 2. Advising a juror during jury selection that the
juror was free to reach a conclusion individually
regarding Klinge's guilt at any time during the
trial Klinge next asserts that the prosecutor engaged in
misconduct by advising a juror that she was free to make an
independent decision regarding Klinge's guilt at any time during
the trial. During voir dire, while the prosecutor questioned a
potential replacement juror in the presence of the other jurors,
the following exchange occurred: [PROSECUTOR]: Now, the defense lawyer has been asking everything
[sic] to wait until the end until they decide. You understand the law is you
are going to have to wait until the end to deliberate together as a group? [PROSPECTIVE JUROR]: Yes. [PROSECUTOR]: Based upon the evidence that comes before you at
trial. You can decide whatever you want to, but as far as deliberation, you
wait until the end. You are not to talk to anyone else. [DEFENSE COUNSEL]: I don't believe that's correct. I don't believe
anyone on this jury can think they can decide this case before they enter -- THE COURT: I'm sorry. Hold on. I know. Rephrase, please, Mr.
Rivera. [PROSECUTOR]: Your Honor, I am talking about the law here. Do you
understand at the end -- you are all not to get -- until the end of the case
when the case is turned over to you none of you are to get together and
deliberate until the end? You understand that? [PROSPECTIVE JUROR]: Yes. [PROSECUTOR]: The evidence you hear in the trial you are going to
make your own decision individually on that. You can start deciding
whenever you want to decide. THE COURT: That's not correct. [PROSECUTOR]: You are not going to give -- THE COURT: That's not correct. We will wait. I don't want you to
decide the case until you have heard all of the evidence and my
instructions and arguments of counsel. (Emphases added.) Based on this colloquy, we agree that the prosecutor's
statement that the prospective juror could "start deciding
whenever [she] . . . want[ed] to decide[]" was a clear
misstatement of the law. Indeed, the prosecutor's statement in
essence gave the jury license to decide the question of Klinge's
guilt at any time, independent of the evidence presented, the
arguments of counsel, and the trial court's instructions to the
jury. (15) Nonetheless, the trial court's prompt admonishment to
the jury to wait until it "heard all of the evidence[, the
court's] instructions[,] and arguments of counsel" adequately
corrected any misconceptions that may have been conveyed to the
jury. "As a rule, juries are presumed to . . . follow all of the
trial court's instructions." State v. Knight, 80 Hawai`i 318,
327, 909 P.2d 1123, 1142 (1996) (quoting Sato v. Tawata, 79
Hawai`i 14, 21, 897 P.2d 941, 948 (1995)). Therefore, in light of the court's curative
instruction, the prosecutor's isolated statement did not amount
to prosecutorial misconduct. 3. Misinstructing the jury that "the people's
safety is the highest law" during closing argument Klinge next contends that the following statement by
the prosecutor during closing argument constituted prosecutorial
misconduct: "What this case is all about is this: The people's
safety is the highest law. That's what this is all about, the
people's safety is the highest law." Inasmuch as Klinge failed
to object to the foregoing statement, we must determine whether
the prosecutor's alleged misconduct in uttering this remark
amounted to plain error which affected the substantial rights of
the defendant. See Ganal, 81 Hawai`i at 376, 917 P.2d at 388
(citing Hawai`i Rules of Penal Procedure, Rule 52(b); (citing
State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986)). During closing argument, a prosecutor is "permitted to
draw reasonable inferences from the evidence and wide latitude is
allowed in discussing the evidence. It is also within the bounds
of legitimate argument for prosecutors to state, discuss, and
comment on the evidence as well as to draw all reasonable
inferences from the evidence." Rogan, 91 Hawai`i at 412, 984
P.2d at 1238 (quoting State v. Quitog, 85 Hawai`i 128, 145, 938
P.2d 559, 576 (1997) (quoting State v. Clark, 83 Hawai`i 289,
304, 926 P.2d 194, 209, reconsideration denied, 83 Hawai`i 545,
928 P.2d 39 (1996) (citations omitted))). See also Marsh, 68
Haw. at 660, 728 P.2d at 1302 (during closing argument, the
prosecution may argue "on his [or her] analysis of the evidence,
for any position or conclusion" with respect to the justness of a
cause, the credibility of a witness, or the guilt or innocence of
the accused"). "In other words, closing argument affords the
prosecution (as well as the defense) the opportunity to persuade
the jury that its theory of the case is valid, based upon the
evidence adduced and all reasonable inferences that can be drawn
therefrom." Rogan, 91 Hawai`i at 413, 984 P.2d at 1239 (citing
Quitog, 85 Hawai`i at 145, 938 P.2d at 576). Moreover, [t]he prosecutor's argument is likely to have
significant persuasive force with the jury.
Accordingly, the scope of argument must be
consistent with the evidence and marked by
the fairness that should characterize all of
the prosecutor's conduct. Prosecutorial
conduct in argument is a matter of special
concern because of the possibility that the
jury will give special weight to the
prosecutor's arguments, not only because of
the prestige associated with the prosecutor's
office, but also because of the fact-finding
facilities presumably available to the
office. Id. at 413, 984 P.2d at 1239 (quoting ABA Prosecution Function
Standard 3-5.8). In the instant case, we believe that the prosecutor's
statement constituted prosecutorial misconduct inasmuch as it was
both inappropriate and erroneous. To be sure, the prosecutor's
remark could have "divert[ed] the jury from its duty to decide
the case on the evidence, by injecting issues broader than the
guilt or innocence of the accused under the controlling law."
State v. Apliando, 79 Hawai`i 128, 142, 900 P.2d 135, 149 (1995)
(citation omitted). We therefore admonish the prosecution for
suggesting that "the people's safety" eclipses all other law.
However, in light of the fact that defense counsel failed to
object at trial, and the trial court later instructed the jury
"concerning the law which [it] must follow in arriving at [its]
verdict" and cautioned the jury that "[s]tatements or remarks
made by counsel are not evidence," we are unable to conclude that
the statement prejudicially affected Klinge's substantial rights. Further, in light of the strength of the evidence
against Klinge, this statement taken in context does not reach
the level of reversible error. At trial, the evidence with
respect to conduct was not in dispute. Klinge admitted that he
had placed the objects at the various places on the dates in
question. With regard to the issue of intent, Klinge's defense
essentially hinged upon Klinge's testimony. As discussed above,
Klinge testified that he did not know that he was scaring people
until the police informed him as such on April 7, 1997. He
further stated that he and had not intended to frighten people.
He instead claimed that his purpose in leaving the objects was to
tease the churches. The prosecution's case, on the other hand, primarily
hinged upon photographs of the actual objects, testimony by
citizens who had discovered them, and the testimony of the police
officers who had investigated the incidents. For example,
William Riedel, who discovered one of the objects, testified that
he called the police after discovering one of the items because
he and his crew agreed that it "pretty much looked like a bomb."
Sister Julia later testified that she did not touch one of the
objects because "it looked scary" and "[i]t was frightening
because it looked suspicious." While the evidence in this case was not overwhelming, a
reasonable trier of fact might fairly conclude upon the evidence
that Klinge left the objects at the churches in reckless
disregard of the risk of terrorizing and/or evacuation. Indeed,
the evidence in the instant case is stronger than that in Marsh,
supra. In that case, this court held that the prosecutor's
repeated injection of her personal opinion concerning the
defendant's guilt and the credibility of defense witnesses
amounted to plain error in light of "the inconclusive evidence
against Marsh, the particularly egregious misconduct of the
prosecutor in presenting her personal views on the dispositive
issues, and the lack of a prompt jury instruction specifically
directed to the prosecutor's closing remarks[.]" Marsh, 68 Haw.
at 661, 728 P.2d at 1302-03. There, the evidence was
inconclusive because the case turned essentially on the
credibility of the victim versus the alibi witnesses. Id. at
661, 728 P.2d at 1302. Here, on the other hand, the prosecution
adduced evidence strongly suggesting Klinge's reckless disregard
of the risk of terrorizing and/or evacuation. Therefore, in light of the nature of the prosecutor's
statement, the failure of defense counsel to object, and the
strength of the evidence against Klinge, we hold that any error
with regard to this statement by the prosecutor did not
prejudicially affect Klinge's substantial rights. 5. Arguing to the jury that defense counsel would
not tell "the whole story" because he had a "duty
[to] get his client off" Klinge next asserts that the prosecutor committed
misconduct by arguing that defense counsel concocted the defense
of lack of state of mind because he had a "duty [to] get his
client off." During closing arguments, the following exchange
took place: [PROSECUTOR]: The defense lawyer did not tell you that like he's
taking everything out of context like he's not going to give you the whole
story. He's not going to give you the whole picture because he has a duty
[to] get his client off. [DEFENSE COUNSEL]: Wait a minute. I object. That's carrying it too
far. THE COURT: I'll sustain that. [DEFENSE COUNSEL]: I ask that it be stricken. THE COURT: The last remark will be stricken. (Emphasis added.) Other courts have examined similar language used by the
prosecution during closing argument with varying results. For
example, in Bell v. State, 614 S.W.2d 122 (Tex. Crim. App. 1981),
the prosecutor argued during closing argument that "[the defense
attorney's] duty is to see that his client gets off even if it
means putting on witnesses who are lying." Id. at 123. The
trial court sustained defense counsel's immediate objection and
instructed the jury that the prosecutor's comment was "not a
correct statement of the law." Id. Defense counsel then
requested a mistrial, which the trial court denied. On appeal,
the Bell court held that the argument was clearly improper, and
the instruction to disregard "was not sufficient to have removed
the prejudice it created." Id. It further emphasized that
"[t]he effect of [the prosecutor's] argument was to instruct the
jury that only prosecuting attorneys seek to uphold truth and
justice whereas defense counsel have a license to use any means
to mislead the jury." Id. See also Gomez v. State, 704 S.W.2d
770, 771 (Tex. Crim. App. 1985) (en banc) (prosecutor's remark
that defense counsel attempted "to manufacture evidence" and that
"[defense counsel] is paid to get this defendant off the hook"
warranted reversal of defendant's conviction because, taken
together, the remarks "contained a clear accusation that [the
defense] attorney would suborn perjury, if necessary, to
accomplish his paid objective [and] . . . invited the jury to
discredit [defendant's] defense[.]") In People v. Bell, 49 Cal. 3d 502, 262 Cal. Rptr. 1,
778 P.2d 129 (1989) (en banc), on the other hand, the California
Supreme Court held that similar comments on the part of the
prosecutor did not amount to plain error. In that case, during
closing and rebuttal argument, the prosecutor commented: It's a very common thing to expect the
defense to focus on areas which tend to
confuse. That is -- and that's all right,
because that's [defense counsel's] job. If
you're confused and you're sidetracked, then
you won't be able to bring in a verdict. . .
. It's his job to throw sand in your eyes,
and he does a good job of it, but bear in
mind at all times, and consider what [defense
counsel has] said, that it's his job to get
his man off. He wants to confuse you. Id. at 538, 262 Cal. Rptr. at 21, 778 P.2d at 149. According to
the California court, "to the extent that the remarks might be
understood to suggest that counsel was obligated or permitted to
present a defense dishonestly, the argument was improper." Id.
at 538, 262 Cal. Rptr. at 21, 778 P.2d at 150. It also
emphasized that counsel should neither misstate the law nor
personally attack the integrity of opposing counsel. However,
because an objection was not made by defense counsel, defendant's
claim on appeal was deemed waived. Id. Finally, in People v. Gionis, 9 Cal. 4th 1196, 40 Cal.
Rptr. 2d 456, 892 P.2d 1199 (1995) (en banc), the prosecutor
commented during closing argument that, among other things, the
duty of an attorney is "to lie, conceal and distort everything
and slander everybody," and that "[defense counsel]'s just doing
his job. His job is to to [sic] get him off." The Gionis court
held that the first remark was clearly improper, but taken in
context, did not prejudice the defendant inasmuch as the trial
court's prompt admonishment corrected any misconceptions conveyed
to the jury. Id. at 1217, 40 Cal. Rptr. 2d at 468, 892 P.2d at
1211. As to the second statement, it noted that, although
defense counsel objected, he "did not do so on the basis that it
could be misunderstood to suggest an improper meaning." Id. at
1218, 40 Cal. Rptr. 2d at 469, 892 P.2d at 1212. As such, the
prosecutor's conduct did not amount to reversible error. See
also Rodriguez v. Peters, 63 F.3d 546 (7th Cir. 1995)
(prosecutor's comment that defense counsel's job was "to try to
get his client off" did not deprive defendant of a fair trial
inasmuch as defense counsel's objection to the remark was
sustained, defense counsel rebutted the comment during his
summation, the comment did not involve a disputed issue in the
case, and the evidence against defendant was overwhelming); U.S.
v. Linn, 31 F.3d 987, 993 (10th Cir. 1994) (while "comments by
prosecutors to the effect that a defense attorney's job is to
mislead the jury in order to garner an acquittal for his client
is not only distasteful but borders on being unethical[,]" and
"should not be tolerated by either the trial judge or the bar,"
prosecutor's personal attacks on defense counsel during closing
argument did not amount to plain error); People v. Hawthorne, 4
Cal. 4th 43, 59-61, 14 Cal. Rptr. 2d 133, 143-44, 841 P.2d 118,
128-29 (1992) (en banc) (prosecutor's comment "to the effect that
law enforcement has an obligation to ascertain 'the true facts
surrounding the commission of the crime' which defense counsel do
not" potentially diverted the jury's attention from "the
specifics upon which they must focus," but, taken in context, was
not so inflammatory to distract the jury from evaluation of the
evidence), certiorari denied, 510 U.S. 1013 (1993). Cf. Clark,
83 Hawai`i at 305-06, 926 P.2d at 210-11 (where warranted by the
evidence, prosecutor may comment during closing argument that the
defendant or defense witnesses were lying). In the instant case, the prosecutor's comment was
clearly prosecutorial misconduct. The remark was uninvited and
unsupported by any evidence in the record. Not only did the
remark constitute an impermissible attack on defense counsel's
integrity, but operated to denigrate the legal profession in
general. We strongly disapprove of such reckless and
unsupportable comments by the prosecutor. Indeed, the
prosecutor's remark "lacked the professionalism and decorum
required of attorneys who practice before the bar of the courts
of Hawai`i." Ganal, 81 Hawai`i at 358, 917 P.2d at 389. See
also Clark, 83 Hawai`i at 304, 926 P.2d at 199 ("a prosecutor's
'improper suggestions, insinuation, and especially assertions of
personal knowledge are apt to carry much weight against the
accused when they should properly carry none.'") (quoting Marsh,
68 Haw. at 661, 728 P.2d at 1302). However, the trial court sustained defense counsel's
immediate objection and then ordered the comment stricken from
the record. Subsequently, during its charge to the jury, the
trial court advised the jury that "[s]tatements or remarks made
by counsel are not evidence." We further note that the prosecutor's indecorous
comment in this case was less egregious than those in Marsh or
Ganal. In Marsh, the prosecutor, during summation, repeatedly
stated her personal opinion that the defense witnesses had lied.
68 Haw. at 660, 728 P.2d 1302. In Ganal, the defendant alleged
fourteen instances of prosecutorial misconduct during closing
argument. 81 Hawai`i at 374, 917 P.2d 386. Here, the
prosecutor's remark in this case was isolated and immediately
stricken from the record by the trial court. Unlike many of the
comments in Ganal, which were neither objected to nor cured by
instruction, the prosecutor's statement in this case drew an
immediate objection that was sustained by the trial court. The
jury was then instructed to disregard the remark. Accordingly, in light of the nature of the statement,
the prompt curative instruction, and the strength of the evidence
against Klinge, see supra section III.B.4, we hold that his
remark, though distasteful and unprofessional, was not so
prejudicial as to deny Klinge a fair trial. 6. Misstating the elements of terroristic
threatening during rebuttal closing argument Klinge lastly submits that the prosecutor committed
misconduct in misstating the material elements of terroristic
threatening during rebuttal closing argument as follows: [PROSECUTOR]: Now, counsel did say that there was a unanimity -- and
that's a word that's rarely used -- unanimity instruction which means you
can do one of three things -- or I guess four things. One is you find that the defendant acted recklessly and he scared a
lot of people. You can find him guilty if you find he acted recklessly and
he caused evacuation of one or more building[s] you can find him guilty. Or the third option is if you find him guilty that he scared people
and evacuated building, he's guilty. If you don't find of [sic] any of the
three options, then he's not guilty of the first degree terroristic threatening. If you find that he might have evacuated only one building or
scared only one person -- [DEFENSE COUNSEL]: That misstates the law. THE COURT: Let him finish. [PROSECUTOR]: -- is to be a common scheme, then he would be guilty
of terroristic threatening in the second degree and not the first degree. (Emphases added.) This court has observed that "[a]rguments of counsel
which misstate the law are subject to objection and to correction
by the court." State v. Mahoe, 89 Hawai`i 284, 290, 972 P.2d
287, 293 (1998). See also State v. Kupihea, 80 Hawai`i 307, 317,
909 P.2d 1122, 1132 (1996) ("improper comments by a prosecutor
can be cured by the court's instructions to the jury and . . . it
will be presumed that the jury adhered to the court's
instructions"). Here, it is clear that the prosecutor misstated
the law when he informed that the jury that it could find Klinge
guilty of terroristic threatening in the first degree if Klinge
"scared a lot of people . . . [or] caused evacuation of one or
more building[s]." Nonetheless, we believe the instructions of the court
in its charge to the jury, both before and after the presentation
of evidence, remedied any potential harm to Klinge. Throughout
the trial, the court made it clear to the jury that it was to
apply the law as it was given to them by the court. Thus, in
view of the court's proper instructions on terroristic
threatening, Klinge fails to show that the prosecution's
momentary misstatement of law amounts to reversible error. (16) We recognize "that there are situations in which.
'although no single prosecutorial act deprive[s] Defendant of a
fair trial, the cumulative effect of the prosecutor's improper
conduct [can be] so prejudicial as to deny him [or her] a fair
trial.'" State v. Pulse, 83 Hawai`i 229, 244, 925 P.2d 797, 812
(1996) (quoting State v. Pemberton, 71 Haw. 466, 476, 796 P.2d
80, 85 (1990)) (brackets in original), amended on
reconsideration, 83 Hawai`i 545, 928 P.2d 39 (1996). We believe,
however, that the prosecutor's improper comments and
misstatements of law, alone or in combination, did not
substantially prejudice Klinge's right to a fair trial.
Accordingly, we hold that the trial court did not abuse its
discretion in denying Klinge's motion for mistrial based on
prosecutorial misconduct. IV. CONCLUSION For the foregoing reasons, we hold that (1) Klinge's
constitutional right to a unanimous verdict was not violated
inasmuch as HRS §§ 707-715(1) and (2) do not give rise to two
separate and distinct crimes; and (2) the trial court did not
abuse its discretion refusing to grant Klinge's motion for
mistrial based on prosecutorial misconduct. Accordingly, we
affirm the trial court's judgment, guilty conviction and sentence
filed on December 3, 1997. On the briefs: Rose Anne Fletcher, Deputy Public Defender, for defendant-appellant Simone C. Polak, Deputy Prosecuting Attorney, (Bridget Y. Palmer, Law Clerk assisting on the brief) for respondent-appellee
1. HRS § 707-716(1)(b) provides: Terroristic threatening in the first degree. (1)
A person commits the offense of terroristic threatening
in the first degree if he commits terroristic
threatening: . . . (b) By threats made in a common scheme against
different persons[.]
HRS § 707-715 provides: Terroristic threatening, defined. A person
commits the offense of terroristic threatening if the
person threatens, by word or conduct, to cause bodily
injury to another person or serious damage to property
of another or to commit a felony: (1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another
person; or (2) With intent to cause, or in reckless disregard
of the risk of causing evacuation of a building,
place of assembly, or facility of public
transportation.
Klinge refers to the requisite intent as an "element" of the
crime. However, under HRS § 707-705, state of mind is not an
"element" of a criminal offense. See HRS § 702-205 ("[t]he
elements of an offense are such (1) conduct, (2) attendant
circumstances, and (3) results of conduct, as: (a) Are specified
by the definition of the offense[.]")
MPC § 211.3 provides: A person is guilty of a felony of the third degree
if he threatens to commit any crime of violence with
purpose to terrorize another or to cause evacuation of
a building, place of assembly, or facility of public
transportation, or otherwise to cause serious public
inconvenience, or in reckless disregard of the risk of
causing such terror or inconvenience.
Other jurisdictions that have examined the issue of juror
unanimity have set forth various tests to determine whether a
criminal statute describes and proscribes a single offense or
multiple offenses. In United States v. UCO Oil Co., 546 F.2d 833
(9th Cir. 1976), the United States Court of Appeals for the Ninth
Circuit articulated four factors as follows: "(1) the language
of the statute itself; (2) the legislative history; (3) the
nature of the proscribed conduct (whether the statute describes
distinctly different kinds of conduct); and (4) the
appropriateness of multiple punishment for the conduct charged in
the indictment." Id. at 835-37. See also State v. James, 698
P.2d 1161, 1165 (Alaska 1985) (adopting the test in UCO Oil).
Similarly, in State v. Arndt, 553 P.2d 1328 (Wash. 1976), the
Washington Supreme Court set forth the factors as follows: "(1)
the title of the act; (2) whether there is a readily perceivable
connection between the various acts set forth; (3) whether the
acts are consistent with and not repugnant to each other; and (4)
whether the acts may inhere in the same transaction." Id. at
1331. 10. Haw. Const. art. I, § 5 provides:
No person shall be deprived of life, liberty or
property without due process of law, nor be denied the
equal protection of the laws, nor be denied the
enjoyment of the person's civil rights or be
discriminated against in the exercise thereof because
of race, religion, sex or ancestry.
11. Haw. Const. art I, § 14 provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense. Juries, where the crime charged is serious, shall consist of twelve persons. The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. We limit our decision to this proposition and do not express any opinion on the necessity of unanimity in other situations not present in this case. It is unclear from the trial transcript which instances of prosecutorial misconduct were included in Klinge's motion for mistrial. We note that Klinge does not argue on appeal that the prosecutor's alleged misconduct clearly denied him a fair trial so as to bar reprosecution. In its answering brief, the prosecution "concedes that the prosecutor erred in advising the juror that she could begin to decide at any point." Klinge also argues that the prosecutor committed misconduct in twice questioning Maui police officer Milton Matsuoka (Officer Matsuoka) whether any of the objects left by Klinge were perceived by others to be bombs. After the prosecutor asked the question once, defense counsel objected on the basis that it required speculation on the part of Officer Matsuoka. The trial court agreed and sustained the objection. After asking the question a second time, the court ordered Officer Matsuoka's answer stricken from the record. On balance, and in light of the trial court's prompt instruction to strike the answer from the record, the prosecutor's questions did not deny Klinge the right to a fair trial. Accordingly, the prosecutor's questioning did not amount to prosecutorial misconduct.