NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-FEB-2024 07:51 AM Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v. OSCAR CARDONA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant Oscar Cardona (Cardona) appeals
from the Judgment of Conviction and Sentence entered by the
Circuit Court of the First Circuit (circuit court) on
December 13, 2022.1 Cardona was charged by felony indictment2
1 The Honorable Kevin T. Morikone presided over the jury trial, and the Honorable Ronald G. Johnson presided over the sentencing.
2 The felony indictment provided,
On or about June 1, 2021, in the City and County of Honolulu, State of Hawaiʻi, OSCAR CARDONA did intentionally or knowingly cause the death of Elian Delacerda, thereby (continued . . .) NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
with one count of Murder in the Second Degree in violation of
Hawaii Revised Statutes §§ 707-701.5 (Supp. 2019) and 706-656
(2014). The matter proceeded to a jury trial, which commenced
on August 24, 2022. On September 2, 2022, the jury found
Cardona guilty as charged. On December 13, 2022, Cardona was
sentenced to life imprisonment with the possibility of parole.
Cardona contends on appeal that the deputy prosecuting
attorney (DPA) committed prosecutorial misconduct by: (1)
"offering his personal opinions about witness credibility,
including an attack on Cardona's credibility solely based on
[his] party status [as defendant]"; and (2) by "testifying as a
witness in his own case, and by asking excessive leading
questions." Cardona further contends that the circuit court
erred: (1) "when it did not provide a State v. Gabriel
[No. CAAP-XX-XXXXXXX, 2022 WL 1284613, (Haw. App. Apr. 29, 2022)
(mem. op.)] limiting instruction [to the jury] in response to
[testifying police officers'] Police Identifications of Cardona
from video evidence"; and (2) "when it provided the 'Voluntary
Act' instruction" to the jury. Upon careful review of the
record and the briefs submitted by the parties, and having given
due consideration to the arguments advanced and the issues
2(. . . continued) committing the offense of Murder in the Second Degree, in violation of Sections 707-701.5 and 706-656 of the Hawaiʻi Revised Statutes.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
raised by the parties, we resolve Cardona's points of error as
follows:
(1) We conclude that the DPA did not commit
prosecutorial misconduct by offering his personal opinions on
witness credibility, and/or attacking Cardona's credibility
based on his defendant party status.
"The term prosecutorial misconduct is a legal term of
art that refers to any improper action committed by a
prosecutor, however harmless or unintentional." State v.
Conroy, 148 Hawaiʻi 194, 201, 468 P.3d 208, 215 (2020) (cleaned
up). We review contentions of prosecutorial misconduct under
the harmless beyond a reasonable doubt standard. See State v.
Mainaaupo, 117 Hawaiʻi 235, 247, 178 P.3d 1, 13 (2008).
Cardona contends that the DPA committed prosecutorial
misconduct through, inter alia, the following remarks during
trial: (1) comments perceived as referencing Cardona's allegedly
poor eyesight;3 (2) his use of the term "[Waikīkī] wrecking
crew," which was in reference to other individuals that Cardona
was with during the night of the incident; (3) his asking
Cardona, during cross-examination, to demonstrate his actions
using a pen rather than a knife because "I don't want to give
3 These included the DPA's remark that he needed to remove his own glasses because they were "fogging up" (the DPA was wearing a face mask, consistent with the court's COVID-19 protocol), the closing statement remarks that "[t]here's no credible, independent evidence that [Cardona] had an eye problem" (emphasis added), and "[y]ou take off your glasses, you get up close to somebody, maybe you might see, but you see a figure." 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
you the knife"; and (4) his general observation during closing
statement, not specifically directed at Cardona, that "People
lie. The evidence doesn't lie.".
When reviewed in context, the DPA's remarks were
either benign statements, or reasonable inferences that could be
drawn from the record facts. State v. Tuua, 125 Hawaiʻi 10, 14,
250 P.3d 273, 277 (2011) ("prosecutors are entitled to draw
reasonable inferences from the evidence.") (citations omitted).
As such, we conclude that the statements did not constitute
improper expressions of the DPA's personal views regarding
Cardona's guilt and/or credibility as a witness.
We further conclude that the DPA's repeated use of
leading questions throughout trial was harmless beyond a
reasonable doubt.
It appears, based on our review of the record, that
Cardona objected to the DPA's leading questions numerous times
during the DPA's direct examination of various State witnesses.
We conclude that the circuit court properly exercised its
discretion in sustaining these objections where warranted,
instructing the DPA to ask "open-ended questions" only, and, as
appropriate, striking leading questions and answers from the
record.4 State v. Pasene, 144 Hawaiʻi 339, 367, 439 P.3d 864,
4 Although we reject Cardona's argument that his conviction should be vacated based on the DPA's numerous leading questions, we do so based on the circuit court's prompt, proper, and curative management of the DPA's (continued . . .) 4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
892 (2019) (determining that "the circuit court's actions were
sufficient to cure the impropriety of the DPA's conduct" with
respect to his questioning of a witness, where "the circuit
court acted properly to promptly sustain each of defense
counsel's objections and to issue curative instructions where
necessary.").
(2) We conclude that the circuit court did not err in
its instructions to the jury. "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. Nichols, 111 Hawaiʻi 327,
334, 141 P.3d 974, 981 (2006) (citation omitted).
On this record, we conclude that the lack of a
limiting instruction, regarding the testifying officers'
identification of Cardona from video evidence, was not
prejudicially insufficient, erroneous, inconsistent, or
misleading. Moreover, the circuit court did not err in its sua
4(. . .
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-FEB-2024 07:51 AM Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v. OSCAR CARDONA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By Leonard, Acting Chief Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant Oscar Cardona (Cardona) appeals
from the Judgment of Conviction and Sentence entered by the
Circuit Court of the First Circuit (circuit court) on
December 13, 2022.1 Cardona was charged by felony indictment2
1 The Honorable Kevin T. Morikone presided over the jury trial, and the Honorable Ronald G. Johnson presided over the sentencing.
2 The felony indictment provided,
On or about June 1, 2021, in the City and County of Honolulu, State of Hawaiʻi, OSCAR CARDONA did intentionally or knowingly cause the death of Elian Delacerda, thereby (continued . . .) NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
with one count of Murder in the Second Degree in violation of
Hawaii Revised Statutes §§ 707-701.5 (Supp. 2019) and 706-656
(2014). The matter proceeded to a jury trial, which commenced
on August 24, 2022. On September 2, 2022, the jury found
Cardona guilty as charged. On December 13, 2022, Cardona was
sentenced to life imprisonment with the possibility of parole.
Cardona contends on appeal that the deputy prosecuting
attorney (DPA) committed prosecutorial misconduct by: (1)
"offering his personal opinions about witness credibility,
including an attack on Cardona's credibility solely based on
[his] party status [as defendant]"; and (2) by "testifying as a
witness in his own case, and by asking excessive leading
questions." Cardona further contends that the circuit court
erred: (1) "when it did not provide a State v. Gabriel
[No. CAAP-XX-XXXXXXX, 2022 WL 1284613, (Haw. App. Apr. 29, 2022)
(mem. op.)] limiting instruction [to the jury] in response to
[testifying police officers'] Police Identifications of Cardona
from video evidence"; and (2) "when it provided the 'Voluntary
Act' instruction" to the jury. Upon careful review of the
record and the briefs submitted by the parties, and having given
due consideration to the arguments advanced and the issues
2(. . . continued) committing the offense of Murder in the Second Degree, in violation of Sections 707-701.5 and 706-656 of the Hawaiʻi Revised Statutes.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
raised by the parties, we resolve Cardona's points of error as
follows:
(1) We conclude that the DPA did not commit
prosecutorial misconduct by offering his personal opinions on
witness credibility, and/or attacking Cardona's credibility
based on his defendant party status.
"The term prosecutorial misconduct is a legal term of
art that refers to any improper action committed by a
prosecutor, however harmless or unintentional." State v.
Conroy, 148 Hawaiʻi 194, 201, 468 P.3d 208, 215 (2020) (cleaned
up). We review contentions of prosecutorial misconduct under
the harmless beyond a reasonable doubt standard. See State v.
Mainaaupo, 117 Hawaiʻi 235, 247, 178 P.3d 1, 13 (2008).
Cardona contends that the DPA committed prosecutorial
misconduct through, inter alia, the following remarks during
trial: (1) comments perceived as referencing Cardona's allegedly
poor eyesight;3 (2) his use of the term "[Waikīkī] wrecking
crew," which was in reference to other individuals that Cardona
was with during the night of the incident; (3) his asking
Cardona, during cross-examination, to demonstrate his actions
using a pen rather than a knife because "I don't want to give
3 These included the DPA's remark that he needed to remove his own glasses because they were "fogging up" (the DPA was wearing a face mask, consistent with the court's COVID-19 protocol), the closing statement remarks that "[t]here's no credible, independent evidence that [Cardona] had an eye problem" (emphasis added), and "[y]ou take off your glasses, you get up close to somebody, maybe you might see, but you see a figure." 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
you the knife"; and (4) his general observation during closing
statement, not specifically directed at Cardona, that "People
lie. The evidence doesn't lie.".
When reviewed in context, the DPA's remarks were
either benign statements, or reasonable inferences that could be
drawn from the record facts. State v. Tuua, 125 Hawaiʻi 10, 14,
250 P.3d 273, 277 (2011) ("prosecutors are entitled to draw
reasonable inferences from the evidence.") (citations omitted).
As such, we conclude that the statements did not constitute
improper expressions of the DPA's personal views regarding
Cardona's guilt and/or credibility as a witness.
We further conclude that the DPA's repeated use of
leading questions throughout trial was harmless beyond a
reasonable doubt.
It appears, based on our review of the record, that
Cardona objected to the DPA's leading questions numerous times
during the DPA's direct examination of various State witnesses.
We conclude that the circuit court properly exercised its
discretion in sustaining these objections where warranted,
instructing the DPA to ask "open-ended questions" only, and, as
appropriate, striking leading questions and answers from the
record.4 State v. Pasene, 144 Hawaiʻi 339, 367, 439 P.3d 864,
4 Although we reject Cardona's argument that his conviction should be vacated based on the DPA's numerous leading questions, we do so based on the circuit court's prompt, proper, and curative management of the DPA's (continued . . .) 4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
892 (2019) (determining that "the circuit court's actions were
sufficient to cure the impropriety of the DPA's conduct" with
respect to his questioning of a witness, where "the circuit
court acted properly to promptly sustain each of defense
counsel's objections and to issue curative instructions where
necessary.").
(2) We conclude that the circuit court did not err in
its instructions to the jury. "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. Nichols, 111 Hawaiʻi 327,
334, 141 P.3d 974, 981 (2006) (citation omitted).
On this record, we conclude that the lack of a
limiting instruction, regarding the testifying officers'
identification of Cardona from video evidence, was not
prejudicially insufficient, erroneous, inconsistent, or
misleading. Moreover, the circuit court did not err in its sua
4(. . . continued) conduct, and our assessment that there is no reasonable possibility that the DPA's conduct might have contributed to Cardona's conviction. We nevertheless note that the DPA's repeated asking of leading questions, in spite of the circuit court's directions to the contrary, does not promote a positive image of the legal profession, does not assist the court and/or the jury in reviewing the case, and does not display appropriate respect for the criminal justice system. Cf. Section 12 of the Guidelines of Professional Courtesy and Civility for Hawaiʻi Lawyers.
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
sponte "Voluntary Act" instruction, which informed the jury of a
potential defense available to Cardona.
For the foregoing reasons, we affirm the Judgment of
Conviction and Sentence entered by the Circuit Court of the
First Circuit on December 13, 2022.
DATED: Honolulu, Hawai‘i, February 6, 2024.
On the briefs: /s/ Katherine G. Leonard Myles S. Breiner, Acting Chief Judge for Defendant-Appellant. /s/ Clyde J. Wadsworth Brian Vincent, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Kimberly T. Guidry for Plaintiff-Appellee. Associate Judge