State v. Cardona. ICA s.d.o., filed 02/06/2024 [ada], 153 Haw. 579. Application for Writ of Certiorari, filed 03/25/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/07/2024 [ada].

556 P.3d 369, 155 Haw. 23

• Court: Hawaii Supreme Court
• Decided: September 20, 2024
• Docket: SCWC-23-0000013
• Status: Published

Opinion

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-XX-XXXXXXX 20-SEP-2024 07:50 AM Dkt. 21 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o--- ________________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,

vs.

OSCAR CARDONA, Petitioner/Defendant-Appellant. ________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)

SEPTEMBER 20, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, and DEVENS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal of a murder conviction arises out of an

altercation between strangers in Waikīkī after midnight on June

1, 2021. Elijah Horn (“Horn”) was near Kuhio Beach with a group

of four women he had just met. Two male visitors, decedent

Elian Delacerda (“Delacerda”) and Osvaldo Castaneda-Pena

1 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

(“Castaneda-Pena”) approached, friendly at first, but then

started arguing with Horn and the women. Horn called his friend

and roommate, Defendant Oscar K. Cardona, Jr. (“Cardona”), for

help.

As Cardona arrived at the scene on his electric bicycle,

the verbal argument escalated into a physical fight. Cardona

pulled out a gold pocketknife. Castaneda-Pena struck Horn.

Horn struck Castaneda-Pena back with his skateboard. One of the

women also hit Castaneda-Pena with the skateboard.

Delacerda approached Cardona and punched him in the face.

Cardona, who claimed to have extremely poor uncorrected vision,

lost his glasses in the scuffle. He stabbed Delacerda several

times. Delacerda died at the scene from a sharp force wound to

his heart.

A jury convicted Cardona of murder in the second degree.

Cardona appealed to the ICA alleging prosecutorial misconduct

and instructional error. The ICA affirmed the conviction and

sentence in a summary disposition order (“SDO”).

Cardona’s application for writ of certiorari presents the

following questions:

A. Did the Intermediate Court of Appeals (“ICA”) gravely err in its Summary Disposition Order (“SDO”) by relying upon facts not in evidence to rationalize and otherwise justify the DPA’s improper conduct, and did the ICA gravely err in its SDO by analyzing the DPA’s misconduct out of context?

B. Did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by offering

2 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

his personal opinions on witness credibility, and did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by attacking Petitioner’s credibility based on his defendant party status?

C. Did the ICA gravely err in its SDO by concluding that although the DPA’s contumacious and repeated use of leading questions was “improper,” the same was “harmless beyond a reasonable doubt” and by also concluding that “the DPA’s remarks were either ‘benign statements,’ or ‘reasonable inferences’ that could be drawn from the record facts?”

D. Did the ICA gravely err in its SDO by concluding that the trial court did not commit reversible error by failing to provide a State v. Gabriel limiting instruction?

E. Did the ICA gravely err in its SDO by concluding the trial court did not commit reversible error by sua sponte providing the “Voluntary Act” jury instruction?

We hold that the DPA committed prosecutorial misconduct in

his closing argument by improperly characterizing Cardona as a

liar and a Waikiki “enforcer,” which denied Cardona of his due

process right to a fair trial under Article I, Section 5 of the

Hawaiʻi Constitution. The misconduct was not harmless beyond a

reasonable doubt. We therefore vacate the ICA’s March 7, 2024

judgment on appeal, as well as the Circuit Court of the First

Circuit’s (“circuit court”) December 13, 2022 judgment of

conviction and sentence.1 We remand this case to the circuit

court for further proceedings consistent with this opinion.

1 The Honorable Kevin T. Morikone presided.

3 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

II. Background

A. Circuit Court Proceedings

1. Indictment

On June 4, 2021, Cardona was charged by indictment with

one count of murder in the second degree, in violation of HRS §§

707-710.52 and 706-656,3 for intentionally or knowingly causing

Delacerda’s death.

2. Pretrial matters

a. Notice of intent re eyesight evidence

Cardona filed a notice of intent to use evidence,

indicating:

1. Both currently and at the time of the incident, Defendant OSCAR CARDONA suffers from an eye disease called myopic degeneration.

2. The result of this disease is that the Defendant suffers from extremely blurred vision, headaches and he requires thick glasses at all times in order to see.

3. Defendant has been a patient of Dr. David Young of Pediatric Ophthalmology of Hawaii since early childhood and Dr. Jon Portis of Sugiki Portis Eye Center as an adult.

4. During the incident, the Defendant’s glasses were damaged when he was assaulted by either the decedent ELIAN DELACARDA and/or his friend OSVALDO CASTANEDA-PENA.

5. The glasses were collected and returned to the Defendant.

2 HRS § 707-710.5 is titled “Murder in the second degree” and defines the offense as “intentionally or knowingly caus[ing] the death of another person. . . .” Murder in the second degree is a felony. Id.

3 HRS § 706-656 is titled “Terms of imprisonment for first and second degree murder and attempted first and second degree murder.” Relevant to this appeal, a person over 18 years of age who is convicted of murder in the second degree “shall be sentenced to life imprisonment with possibility of parole.”

4 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

6. The glasses were subsequently transferred from the Defendant to Public Defender investigator MATTHEW TINAY where they are being kept in a safe pending the trial.

7. The State is welcome to examine the glasses upon request.

At an August 17, 2022 pre-trial hearing, the circuit court

ruled Cardona could testify about his poor eyesight. The

circuit court also noted that the DPA was having difficulty

securing the presence of Cardona’s ophthalmologist for trial.

The DPA expressed doubt as to whether Cardona was qualified to

testify about his own eyesight because Cardona was not a doctor

but acknowledged that Cardona’s testimony could be weighed by

the jury.

b. Gabriel instruction discussion

At the pretrial hearing, the DPA and defense counsel also

discussed whether a limiting instruction (Gabriel instruction)

should be given due to the State’s plan to call Officer Cyrus

Coen (“Coen”) to identify Cardona. Officer Coen was able to

identify Cardona on video recordings because he had cited

Cardona for a COVID mask violation the year before. Defense

counsel expressed concern that the jurors might think Officer

Coen recognized Cardona “because he’s a bad guy.”

The court suggested providing a limiting instruction that

Officer Coen’s testimony would be considered for identification

purposes only. Defense counsel expressed concern that a

5 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

limiting instruction could instead call more attention to

Cardona’s prior police contact.

The circuit court eventually ruled it would allow Officer

Coen to testify as to Cardona’s identity “based upon his prior

familiarity with the defendant.” Defense counsel said he did

not think a limiting instruction would be necessary, but the

circuit court said it would give one in an abundance of caution.4

No limiting instruction ended up being given.

3. Jury Trial

Cardona’s jury trial began on August 25, 2022. At issue

was whether Cardona stabbed Delacerda in self-defense or

involuntarily. The State presented many witnesses. Only

4 It appears the circuit court was considering a Gabriel instruction:

You have heard evidence that the defendant . . . at another time may have had a prior contact or interaction with a Honolulu Police Department officer. The evidence, if believed by you, may be considered only on the issue of the defendant’s identity as the person who committed the offense charged. Do not consider the evidence for any other purpose. You must not use this evidence to conclude because the defendant, at another time, may have had prior interactions or contacts with the Honolulu Police Department officer that he is a person of bad character and, therefore, must have committed the offense charged in this case. You must not draw any adverse inference against [the defendant] from the fact that the witness is a law enforcement officer. In considering the evidence for the limited purpose for which it has been received or will be received, you must weigh it in the same manner as you would all other evidence in the case and consider it along with all other evidence in this case. If believed, you may give the evidence such weight as you feel it deserves but only for the limited purpose that I described to you.

State v. Gabriel, 2022 WL 1284613 at *11 (Haw. App. Apr. 29, 2022).

6 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Cardona testified for the defense and his credibility was

central to his defense.

Salient testimony included the following.

a. Testimony of Elijah Horn

Horn was Cardona’s roommate. Horn had met a few women the

night before and, shortly after midnight on June 1, 2021, they

were gathered at the tables near Kuhio Beach. Delacerda and

Castaneda-Pena approached and asked if they wanted a shot. Horn

said yes, but Delacerda and Castaneda-Pena then became vulgar

and aggressive, calling Horn the N-word. The women verbally

defended Horn, so Delacerda and Castaneda-Pena started calling

them “stupid cunts” and the “B word.” Horn did not walk away

because he did not want to look like a “pip-squeak.”

Instead, Horn called Cardona because he was scared and

Cardona was like a father figure to him. When Cardona arrived,

Cardona pulled out a gold knife that Horn had never seen before.

He thought Cardona was just going to use it to scare off

Delacerda and Castaneda-Pena. Cardona and Horn told Delacerda

and Castaneda-Pena to leave because they did not want to fight

with them.

Delacerda then slapped Horn. Then Castaneda-Pena rushed

toward Horn and hit him in the face, so Horn engaged with

Castaneda-Pena. Horn hit Castaneda-Pena with his skateboard.

7 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Horn ended up on the ground and one of the women hit Castaneda-

Pena with the skateboard.

Horn did not know what happened between Delacerda and

Cardona. When he and Castaneda-Pena disengaged, Horn saw

Delacerda lying on the ground with a woman kneeling beside him

yelling for help. Horn then helped Cardona find his glasses

because, without them, Cardona “couldn’t see” and was “in

complete . . . panic mode.”

Horn then returned to the hotel room, where Cardona was

showering. Cardona’s face looked beaten up and bloodied. There

were bloody towels in their bathroom. Cardona told Horn to “lay

low.” Cardona said he thought he had stabbed Delacerda three

times in the stomach. Cardona told Horn he was going to throw

out the gold knife. (He ended up not doing so.)

According to Horn, although Cardona seemed like a “hard

guy” and “not . . . the type of person that you would see like

as a pushover,” Cardona was “not a fighter” and he had “[n]ever

seen him fight before.” Cardona was physically strong and the

two used to arm-wrestle and spar, but he had never known Cardona

to be violent. In fact, he had never seen Cardona raise his

voice in anger at anyone.

There were numerous instances during Horn’s testimony when

the DPA asked improper leading questions resulting in sustained

8 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

objections, striking of testimony and/or cautionary instructions

from the circuit court.

b. Testimony of Osvaldo Castaneda-Pena

Castaneda-Pena and Delacerda were visiting Hawaiʻi from

Vacaville, California. The night before, they had been drinking

at their hotel pool and decided to go down to Waikīkī Beach.

Castaneda-Pena did not recall how the altercation started and

did not see what happened between Cardona and Delacerda.

c. Testimony of Melissa Del Sarto

Melissa Del Sarto (“Del Sarto”), a registered nurse from a

Chicago suburb, was visiting Hawaiʻi. Del Sarto and two others

were on Kuhio Beach when she heard a commotion “like a fight

breaking out on the walkway area.” She saw four men fighting,

two on two. She saw one man hit another in the head or body

with a skateboard. She saw the other two men facing each other,

then one “just kind of slowly went to the ground,” “fell on his

butt and slumped over,” until he was “laying in the grass.” The

crowd ran away until only “the victim and the victim’s friend”

remained.

Del Sarto ran up to the victim and started performing CPR,

but she knew he was dying because of his “agonal breathing,”

which she explained as the body’s “last-ditch effort to try and

oxygenate” itself. She stopped her efforts after police and EMS

showed up and asked her to step aside.

9 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

d. Testimony of Arkadiy Plekhanov

Arkadiy Plekhanov (“Plekhanov”) was near the scene when he

heard an argument and decided to record it on Facebook Live.

When he saw someone hit someone else, he stopped recording and

walked away to call 911 to summon police. While he was still on

the 911 call, he saw a body lying on the ground and asked for an

ambulance as well. He then started recording again.

Plekhanov’s recording did not capture the moments Delacerda was

stabbed.

e. Testimony of Phillip Montoya

Phillip Montoya (“Montoya”) was a visitor from California

staying at the Marriott Waikiki. While he was relaxing on the

lanai of his 23rd floor hotel room, his attention was drawn to a

“scuffle on the beach.” With his cell phone, he started

recording a group of about ten people gathered at Waikīkī Beach.

When he saw police arrive and put up yellow caution tape, he

realized something serious had happened and called the police to

let them know he had recorded the incident. Montoya’s recording

also did not capture the moment Delacerda was stabbed because

Montoya had started looking around and his phone camera’s

viewfinder drifted to the right of the scene.

f. Testimony of Cheyne Kaninau

HPD officer Cheyne Kaninau was dispatched to the fight

scene. When he arrived, he saw a woman performing CPR on an

10 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

unresponsive person lying on the ground. He told the woman to

stop because he could see the person breathing.

g. Testimony of Jon Kurosu

Jon Kurosu (“Kurosu”), an EMS paramedic, responded to the

incident. Delacerda had no pulse and was not breathing when he

arrived. Delacerda appeared to have stab wounds to the chest,

armpit, and the back of his left shoulder. Kurosu testified

that CPR should not be performed on someone who is still

breathing and still has a pulse.

h. Testimony of Star Sutherland

Cardona’s friend, Star Sutherland (“Sutherland”), read to

the jury some text message exchanges between her and Cardona.

Between 1:37 to 1:45 am on June 1, 2021, were the following

messages:

Cardona: Hey how are you? Hope you’re doing well

Cardona: Can I call you? I need to talk to you about something major.

Sutherland: Ya what

Sutherland: Call

Cardona called Sutherland at 1:47 am, and the call lasted

five minutes. Cardona told her he had been in a fight and he

“did not sound okay.” Cardona told her he stabbed somebody, but

Sutherland did not believe him, stating, “[I]t’s completely not

something that I would expect from him.”

11 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

The text messaging then resumed at 8:34 am with the

following exchange, after Sutherland had seen posts about two

Waikīīkī stabbings on social media:

Sutherland: How are you?

Cardona: Good

Sutherland: Ok good. Have you seen the news?

Cardona: No Cardona: Have you?

Sutherland: Yes!

Cardona: What happened?

Sutherland: There was two stabbings in Waikiki last night, one guy in critical & one dead Sutherland: They arrested a 29 year old guy

Cardona: Oh fuck Cardona: I’m a dead man

Sutherland: The guy that was in a fight and got stabbed is dead & they haven’t arrested anyone yet Sutherland: The other guy that got stabbed was following a couple and then stabbed the boyfriend

Cardona: Really

Sutherland: That guy is in critical and they arrested a 29-year old in that case

Cardona: Can you show me the news

Sutherland: So weird both happened like a block from each other 20 minutes apart Sutherland: Yes Sutherland: [sending three attachments from news outlets] Sutherland: Fuck Sutherland: [sending two more attachments from news outlets]

At 10:49 am, Sutherland texted Cardona asking, “Is that the

fight you got in? You ok?” Sutherland told Cardona to turn

himself in.

12 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

During direct examination, the following exchange also took

place:

DPA: But you told the detective that he carried a gold knife, correct?

Sutherland: I said that he carried a knife, yeah, like most -- yes, yes I did.

DPA: No, I meant -- what I was going to say was --

Defense Counsel: Objection --

Sutherland: -- most everybody that I know --

Defense Counsel: -- leading.

The Court: Sustained. Court’s going to strike that last response.

On cross-examination, Sutherland testified that Cardona sounded

“scared,” “upset,” and “distraught” during their phone call and

that she “couldn’t tell if he was crying.” She worried that he

was suffering from a concussion.

i. Testimony of Cyrus Coen

HPD Crime Reduction Unit Officer Cyrus Coen participated in

the murder investigation. He went to Ohia Waikiki Suites, where

Cardona and Horn lived, and reviewed surveillance videos.

Officer Coen recognized Cardona on those videos. When Cardona

returned to the hotel at around 6:00 pm on June 1, 2021, Officer

Coen arrested him.

On cross-examination, the following exchange took place

regarding how Officer Coen recognized Cardona:

Defense counsel: I think you testified that you watched the video and you recognized Oscar Cardona.

Officer Coen: Yes.

13 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Defense counsel: And, in fact, you gave him a -- a COVID ticket on September 1st, 2020?

Officer Coen: No, I believe it was March 4, 2021.

Defense counsel: Excuse me. I have one here. It says date of issuance, September 1st, 2020. Might have been two times. But would you like to take a look at this?

Officer Coen: Sure.

Defense counsel: Well, in any event, you recall giving him a COVID ticket, correct?

Defense counsel: And a COVID ticket, basically he wasn’t wearing a mask, right?

j. Testimony of Charles Rezentes

HPD detective Charles Rezentes (“Rezentes”) also reviewed

the Ohia Waikiki Suites surveillance videos, which showed Horn

and Cardona coming and going from the evening of May 31, 2021

through the morning of June 1, 2021. Rezentes did not testify

that he recognized Cardona from prior contacts.

k. Testimony of Veronica De Mello

HPD evidence specialist Veronica De Mello went to Cardona’s

residence to help execute a search warrant. She collected

evidence that included a towel, bed cover, and shorts, all with

blood-like substances on them, as well as a knife and a

necklace.

14 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

l. Testimony of Shannon Klum

HPD criminalist Shannon Klum testified as an expert in

serology and forensic DNA testing. Cardona’s DNA was found in

blood samples taken from the sidewalk at the scene and on a gold

chain. Delacerda’s DNA was found in blood samples taken from

the sidewalk at the scene and on the knife. A mixture of two

sets of DNA was found on the knife; Castaneda-Pena and Horn were

ruled out as sources. One blood stain on Cardona’s shirt

contained DNA matching Cardona’s profile, and another blood

stain on the shirt contained a mixture of DNA, for which Cardona

and Delacerda could not be ruled out as possible sources. Blood

on Cardona’s shorts matched the DNA profiles for Delacerda and

Cardona. She also could not exclude Cardona as a possible

contributor to the DNA found on a blood sample taken from the

surface of Delacerda’s left hand.

m. Testimony of Masahiko Kobayashi

Dr. Masahiko Kobayashi, the chief medical examiner for the

City and County of Honolulu, who performed Delacerda’s autopsy,

testified as an expert in forensic pathology. There were five

sharp-force injuries on Delacerda: a shallow and small wound to

the head; an inch-long wound to the chest that was between one

and two inches deep that had “hit the heart”; an inch-long and

inch-deep cut to the left side of the body that penetrated only

muscle tissue; a “tiny” one-fourth inch wound to the back of the

15 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

right upper arm; and a one-inch entry cut on the shoulder, where

a weapon had exited through a small hole on the other side.

Delacerda’s cause of death was “stab wound of the chest,”

specifically from the wound that had penetrated his heart.

Also, Delacerda’s blood alcohol content was 0.245 grams per

deciliter.

n. Testimony of Hideko Yoshihara

HPD evidence specialist Hideko Yoshihara was present at the

morgue when Dr. Kobayashi performed the autopsy. She

photographed the injuries on Delacerda’s chest, left side, back

of the right arm, and left shoulder, as well as possible

injuries to his forehead and left ear. She also processed

Cardona on June 3, 2021 and photographed a possible injury to

the top side of his left hand.

o. Testimony of Kathy Gunderson

Kathy Gunderson was the general manager of the Ohia Waikiki

Suites, where Cardona resided (with Horn and two other men) from

March to June 2021. During the three months Cardona lived at

the hotel, he paid his bills, did not cause any problems, and

was a good guest.

p. Testimony of Oscar K. Cardona, Jr.

The defense’s only witness was Cardona. He was 21 years

old on the night of June 1, 2021. He grew up in Waikīkī and had

lived there his entire life. He is the only child of a mother

16 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

originally from Nagano, Japan. As a single mother, she worked

every day, sometimes both day and night shifts, as a jewelry

salesperson in Waikīkī. He had never met or communicated with

his father, who lives in Mexico. He spent much of his younger

years with caregivers in Kaimukī while his mother worked,

because she considered Waikīkī too dangerous. Cardona liked to

spend time at home playing Pokemon Go and later played clarinet

in the Saint Louis School band.

Cardona’s eyesight had been poor since he was four years

old. He began seeing an eye specialist at that time, who

prescribed new glasses every six months because his vision

deteriorated at a rapid pace. When he takes off his glasses,

“everything is blurry, and the only thing I can see is figures.”

Without his glasses, he can clearly see objects only when they

are a few inches away from his face. It would not be safe for

him to ride a bike, walk around outside, or do any kind of ocean

activity, like swimming, without his glasses. His vision is

even worse at night.

As to the incident, Cardona had been riding his bike around

Waikīkī when Horn called asking for help. When Cardona arrived

at Horn’s location, he saw two guys and a bunch of girls arguing

with each other. He parked his bike and took out a knife “just

in case” something were to happen. He had never been in a fight

before. Delacerda was “angry and aggressive,” “swearing, saying

17 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

the N word, the B word, the C word, the H word,” and had an

overall “scary” demeanor. Horn and Cardona asked Delacerda and

Castaneda-Pena to leave. While Cardona was trying to “defuse”

the situation, the girls were arguing back.

Cardona saw Castaneda-Pena pick something up from the

ground but Cardona could not tell what it was. At that point,

Cardona was worried that the object was a weapon, so he had his

knife in his hand. He saw Castaneda-Pena stumble, and the girls

were laughing at him. Delacerda then got upset and jumped off a

low wall and slapped Horn.

Castaneda-Pena then punched Cardona in the face. Cardona

had never before been punched in the face. His glasses broke

and fell to the ground. He could not see and could not run

away. Everything was “blurry and dark” and he felt scared and

vulnerable.

Someone started attacking him so he “tried to fight back,

but it was very hard . . . to see what was going on.” No one

came to help him. At some point, his attacker stopped without

saying anything. Cardona then stood in place trying to find his

glasses. Horn found Cardona’s glasses for him. Cardona did not

know if he himself had been injured. Cardona also testified he

had held his knife out and that it was possible Delacerda had

run up against it and stabbed himself.

18 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

When Cardona returned to his hotel room, he was in pain,

bleeding, and scared. He reached out to Sutherland. When he

found out later what had happened, he was in shock and could not

process the night’s events. He did not throw the gold knife

away and instead placed it in his room safe and went to work.

He did not intend to kill Delacerda; he was only trying to

protect himself.

On cross-examination, the DPA and Cardona entered into the

following exchange concerning the moment Cardona used his knife:

DPA: So when you stabbed him, how were you stabbing him? You got a pen over there? I don’t want to give you the knife.

Cardona: No.

DPA: You want a pen? I guess I’ll give you my pen. Use that as the knife. Show us how -- how were you stabbing Elian Delacerda?

Cardona: I wasn’t stabbing him. I was just protecting myself.

DPA: Wait, wait, wait, wait. Did you go like that? (demonstrates.)

DPA: So you were holding it.

Cardona: Yeah, I was just holding it.

DPA: So you never stabbed at him?

DPA: So when you told Elijah Horn you stabbed him three times in the stomach, that wasn’t true?

Cardona: I didn’t tell him that.

DPA: He made that up?

Cardona: I said I thought I probably did.

19 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

DPA: Okay. Well, are you saying he walked into the knife? You was just holding it like that (demonstrates), and he walked into the knife?

Cardona: Well, I didn’t say that either.

DPA: Okay. So you were defending yourself, so you had to at least give him one? (Demonstrates)

DPA: No?

DPA: You never gave him any strikes?

DPA: You don’t know how he got all those injuries?

Cardona: Well, he was attacking me, so probably when he was attacking me.

DPA: So he was attacking you, so you were stabbing him?

Cardona: No, I didn’t stab him.

DPA: So you never stabbed him with this knife?

DPA: Okay. So you don’t know how his blood, his DNA, got on the blade of this knife?

Cardona: Well, he came attacking me, so maybe he did it to himself.

DPA: Oh, so he stabbed himself?

Cardona: He probably ran into it.

DPA: He ran into it?

Cardona: Yeah.

DPA: Okay. So tell us how you were holding the knife. Show us.

Cardona: I was just holding it out.

DPA: We want to see you.

DPA: Stand up, please. Stand up. Stand up.

20 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Cardona: Okay.

DPA: Show us how you were holding the knife.

Cardona: Like this. (Demonstrates.)

DPA: Okay. So you was holding the knife like this. (Demonstrates.) And then what? You weren’t moving your arms?

Cardona: Well, he -- when he came at me, of course my arms would move.

DPA: Okay. So show us what you did.

Cardona: I don’t know what I did. He was coming at me. It’s just a reaction, that he’s coming at me.

DPA: So you had to stab him; right?

DPA: How did it get -- how did he get that stab wound in his heart?

Cardona: I . . . .

DPA: How?

Defense counsel: Asked and answered. He says he doesn’t know.

The Court: Sustained. Court’s going to sustain the objection.

4. Voluntary act jury instruction

During the settling of jury instructions, the State asked

the court to give Hawaiʻi Standard Jury Instructions Criminal

(HAWJIC) instruction 7.16 on “Voluntary Act or Voluntary

Omission.” That instruction read as follows:

In any prosecution[] it is a defense that the conduct alleged in the charged offense does not include a voluntary act [or the voluntary omission to perform an act of which the Defendant is physically capable]. A “voluntary act” means a bodily movement performed consciously or habitually as the result of effort or determination of the Defendant. The burden is upon the prosecution to prove beyond a reasonable doubt that the Defendant’s conduct as to the (specify offense) charge included a voluntary act [or the voluntary omission to perform an act of which the Defendant

21 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

is physically capable]. If the prosecution fails to meet its burden, then you must find the Defendant not guilty of the charge.

HAWJIC 7.16 (eff. March 1, 2021).

The DPA noted that there was “a scintilla of evidence” to

support requiring the instruction because Cardona had testified

he just held the knife out and that it was possible that

Delacerda ran into it and stabbed himself. Defense counsel

objected on the grounds he did not think there was a basis in

the evidence to give the instruction based on his recall of

Cardona’s testimony. The circuit court indicated the existence

of a scintilla of evidence, requiring the court to give the

instruction, citing State v. Adviento. See 132 Hawaiʻi 123, 137-

38, 319 P.3d 1131, 1145-46 (2014) (noting our cases holding that

it is a judge’s obligation to properly instruct the jury and

requiring an extreme mental or emotional disturbance (“EMED”)

instruction when the record reflects any evidence that the

defendant acted under a loss of self-control resulting from

EMED). It gave HAWJIC instruction 7.16 over defense objection.

5. Closing arguments

The DPA’s closing argument included the following:

“The prosecution is required to prove causation. Causation has a special meaning under the law. To prove causation, the State must prove two components beyond a reasonable doubt.” “In the first component, the State must prove that the defendant’s conduct is an antecedent but for which the result in question would not have occurred.” What does that all mean? Oh, my goodness. Then it says, “In other words, without defendant’s actions, the result would not

22 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

have happened.” If he didn’t pull out that knife, if he didn’t stab Elian Delacerda, the result would not have happened.

During his rebuttal closing argument, the DPA’s stated:

People lie. The evidence doesn’t lie. You have these photographs [of the cones where DNA swabs were taken at the scene of the incident].

(Emphasis added.)

[Cardona] wasn’t scared. That’s why we put those videos in there [of Cardona riding his electric bicycle around Waikiki before and after the incident], because when everybody comes to court, they’re on their best behavior. But you look at those videos. He’s riding around Waikiki. He’s on his bike. (Gestures.) For 14 minutes. Some big guys walk past him. He ain’t no -- he ain’t no puppy with his tail between his legs. He knows those streets in and out of Waikiki. These girls that Horn said needed to be protected? I wouldn’t want to run into them. They looked like the Waikiki wrecking crew. They beat up on those guys, because they were drunk. They’re too drunk to defend themselves, falling, stumbling.

. . . .

Defendant said, well, when I don’t wear my glasses, I’m blurry. He didn’t say he was color blind. Guy was wearing a red hat, black shirt, red shorts. You take off your glasses, you get up close to somebody, maybe you might see, but you see a figure.

[T]hat’s how [Cardona] was on those streets. He looked like he owned those streets, riding his bike all over, sometimes with the light on, sometimes with the light off, going up the one way, going against -- going against traffic, riding on the sidewalk, whatever, doing whatever he wants. He’s scared? He looks like the enforcer.

The defendant would have you believe that an unarmed man ran into his knife. That’s not self-defense. He’s saying self-defense. What he said on the stand, that ain’t self-defense. He said, I was holding the knife. I don’t know what happened. He’s attacking me. I don’t know. Come on. He’s holding the knife like that? (Demonstrates.) Come on. Be truthful. He knows exactly what happened. He’s playing that thing over and over in his mind.

23 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

[R]emember, there’s no credible evidence that he can’t see. There’s no credible, independent evidence that he had an eye problem.

At one point during closing arguments, the DPA’s glasses

started fogging up, and he made a comment about it to the jury

(“Sorry. My glasses are fogging up here. I got to see.”)

6. Verdict, conviction, sentencing, and notice of appeal

The jury found Cardona guilty as charged of the offense of

murder in the second degree. The circuit court entered its

judgment of conviction and sentence on December 13, 2022,

sentencing Cardona to life imprisonment with the possibility of

parole. On January 30, 2023, Cardona filed a notice of appeal.

B. ICA Proceedings

Cardona raised the following points of error:

A. The DPA committed misconduct throughout the proceedings that violated Cardona’s constitutional right to a fair trial by offering his personal opinions about witness credibility, including an attack on Cardona’s credibility solely based on party status. . . . . B. The DPA committed misconduct throughout the proceedings that violated Cardona’s constitutional right to a fair trial by testifying as a witness in his own case, and by asking excessive leading questions. . . . . C. The Circuit Court plainly erred when it did not provide a State v. Gabriel limiting instruction in response to Rezentes’s, and Coen’s, Police Identification of Cardona from video evidence. . . . . D. The Circuit Court plainly erred when it provided the “Voluntary Act” instruction.

The ICA affirmed the circuit court in a February 6, 2024

SDO. State v. Cardona, No. CAAP-XX-XXXXXXX, 2024 WL 450038

24 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

(Haw. App. Feb. 6, 2024) (SDO). The ICA characterized as

“either benign statements, or reasonable inferences that could

be drawn from the record facts” (1) the DPA’s statement about

Cardona’s poor eyesight, (2) the “Waikiki wrecking crew”

comment, (3) the DPA’s use of a pen rather than a knife during

Cardona’s testimony, and (4) his “general statement” that

“People lie,” which was “not specifically directed at Cardona.”

Cardona, 2024 WL 450038, at *2. The ICA footnoted that the

DPA’s statement about his glasses fogging up were due to the

fact that the DPA “was wearing a face mask, consistent with the

court’s COVID protocol. . . .” Cardona, 2024 WL 450038, at *1

n.3.

The ICA then concluded that “the DPA’s repeated use of

leading questions throughout trial was harmless beyond a

reasonable doubt,” because defense counsel objected, the circuit

court sustained the objection and struck witness testimony where

warranted, and the circuit court directed the DPA to ask open-

ended questions. Cardona, 2024 WL 450038, at *2. Nevertheless,

the ICA footnoted its concern 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

25 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

the criminal justice system.” Cardona, 2024 WL 450038, at *2

n.4.

As to whether the circuit court plainly erred in failing to

give the jury a Gabriel instruction, the ICA stated, “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.” Cardona, 2024 WL

450038, at *2. The ICA also concluded the “voluntary act”

instruction was properly given because it “informed the jury of

a potential defense available to Cardona.” Id.

The ICA issued its judgment on appeal on March 7, 2024.

C. Certiorari proceedings

On certiorari Cardona presents the following questions:

A. Did the Intermediate Court of Appeals (“ICA”) gravely err in its Summary Disposition Order (“SDO”) by relying upon facts not in evidence to rationalize and otherwise justify the DPA’s improper conduct, and did the ICA gravely err in its SDO by analyzing the DPA’s misconduct out of context?

B. Did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by offering his personal opinions on witness credibility, and did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by attacking Petitioner’s credibility based on his defendant party status?

C. Did the ICA gravely err in its SDO by concluding that although the DPA’s contumacious and repeated use of leading questions was “improper,” the same was “harmless beyond a reasonable doubt” and by also concluding that “the DPA’s remarks were either ‘benign statements,’ or ‘reasonable inferences’ that could be drawn from the record facts?”

26 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

D. Did the ICA gravely err in its SDO by concluding that the trial court did not commit reversible error by failing to provide a State v. Gabriel limiting instruction?

E. Did the ICA gravely err in its SDO by concluding the trial court did not commit reversible error by sua sponte providing the “Voluntary Act” jury instruction?

In addition to his arguments below, Cardona argues that the

ICA relied upon facts not in evidence to conclude that the DPA’s

comments about eyesight were harmless; specifically, Cardona

points to the ICA’s notation that the DPA was wearing a face

mask due to court COVID protocols.

III. Standard of Review: Prosecutorial Misconduct

Because prosecutorial misconduct impacts the fundamental right to a fair trial, there is no difference between the plain error and harmless beyond a reasonable doubt standards of review.

In prosecutorial misconduct cases, then, once the defense establishes misconduct -- objection or no objection -- appellate review is the same: “After considering the nature of the prosecuting attorney’s conduct, promptness or lack of a curative instruction, and strength or weakness of the evidence against the defendant, a reviewing court will vacate a conviction if there is a reasonable possibility that the conduct might have affected the trial’s outcome.

State v. Hirata, 152 Hawaiʻi 27, 31, 520 P.3d 225, 229 (2022)

(citation omitted).

IV. Discussion

A. The ICA did not rely on facts outside of the evidence in its SDO but did err by analyzing some of the DPA’s misconduct out of context

In his first question on certiorari, Cardona initially

argues that the ICA relied upon facts not in evidence to

conclude the DPA’s comments about eyesight were harmless. The

DPA had stated during closing arguments, “Sorry. My glasses are

27 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

fogging up here. I got to see.” Specifically, Cardona points

to the ICA’s footnote stating that the DPA was wearing a face

mask due to court COVID protocols, which he asserts was a fact

not in evidence. See Cardona, 2024 WL 450038, at *1 n.3.

The DPA’s statements about his glasses fogging up were

indeed due to mask use during trial. During jury selection, the

circuit court told the jury, “Everyone’s required to wear a face

mask in the courthouse.” It was not error for the ICA to take

judicial notice of court mask protocols in place at that time.

Hawaiʻi Rules of Evidence Rule 201, Judicial notice of

adjudicative facts. Also, although Cardona links the “I got to

see” comment to the DPA’s other comments about Cardona’s

eyesight, the first comment was not related or close in time to

the DPA’s other comments about Cardona’s eyesight.

Cardona also asserts that the ICA erred by analyzing some

of the DPA’s misconduct out of context. With respect to the

“Waikiki wrecking crew” comment, the ICA did not err by ruling

it was made “in reference to other individuals that Cardona was

with during the night of the incident.” Cardona, 2024 WL

450038, at *1. Read in context, it is clear the DPA was

referring to the women Horn met, one of whom had hit Castaneda-

Pena with a skateboard, and not to Cardona:

These girls that Horn said needed to be protected? I wouldn’t want to run into them. They looked like the Waikiki wrecking crew. They beat up on those guys, because

28 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

they were drunk. They’re too drunk to defend themselves, falling, stumbling.

Further, the ICA did not err with respect to the DPA’s

comment that he did not want to give Cardona a knife to

demonstrate what happened. See Cardona, 2024 WL 450038, at *1.

Realistically, a knife would not be used in a courtroom

reenactment. The DPA should have chosen his words more

carefully as a written transcript cannot reveal a statement’s

tone. We have no doubt that the circuit court would have

stepped in if the DPA was suggesting something sinister or

prejudicial, rather than attempting to lighten the mood.

As discussed in Section IV.B below, however, the ICA did

err in its analysis of the DPA’s statements in closing argument

(1) that “People lie” and to “Be truthful”; (2) characterizing

Cardona as an “enforcer”; and (3) in inserting his personal

opinion and new evidence concerning Cardona’s eyesight. See

Cardona, 2024 WL 450038, at **1-2.

B. The DPA committed prosecutorial misconduct

In his second question on certiorari, Cardona asserts the

ICA erred in not finding prosecutorial misconduct.

1. Definition of prosecutorial misconduct

“Prosecutorial misconduct” is a legal term of art referring

to any improper action committed by a prosecutor, however

harmless or unintentional. State v. Borge, 152 Hawaiʻi 458, 464,

526 P.3d 435, 441 (2023) (cleaned up). It does not matter that

29 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

defense counsel objected to some but not all of the comments.

“In prosecutorial misconduct cases, . . . once the defense

establishes misconduct -- objection or no objection -- appellate

review is the same: After considering the nature of the

prosecuting attorney’s conduct, promptness or lack of a curative

instruction, and strength or weakness of the evidence against

defendant, a reviewing court will vacate a conviction if there

is a reasonable possibility that the conduct might have affected

the trial’s outcome.” Hirata, 153 Hawaiʻi at 31, 520 P.3d at 229

(citation omitted). Prosecutorial misconduct warrants a new

trial or the setting aside of a guilty verdict where the actions

of the prosecutor have caused prejudice to the defendant’s right

to a fair trial. State v. Austin, 143 Hawaiʻi 18, 39, 422 P.3d

18, 39 (2018).

2. Some of the DPA’s statements constituted prosecutorial misconduct

a. “People lie” and “Come on. Be truthful”

It was prosecutorial misconduct for the DPA, in closing

argument, to characterize Cardona as a liar with his “People

lie” and “Come on. Be truthful” comments:

People lie. The evidence doesn’t lie. You have these photographs [of the cones where DNA swabs were taken at the scene of the incident].

The defendant would have you believe that an unarmed man ran into his knife. That’s not self-defense. He’s saying self-defense. What he said on the stand, that ain’t self- defense. He said, I was holding the knife. I don’t know

30 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

what happened. He’s attacking me. I don’t know. Come on. He’s holding the knife like that? (Demonstrates.) Come on. Be truthful. He knows exactly what happened. He’s playing that thing over and over in his mind.

[R]emember, there’s no credible evidence that he can’t see. There’s no credible, independent evidence that he had an eye problem.

The ICA ruled that the “people lie” statement was not

specifically directed at Cardona. In the context of the DPA’s

closing argument, however, including the later statements quoted

above, “Come on. Be truthful,” it is clear the only material

testimony the DPA sought to discredit was that of Cardona. In

Austin, we held that a prosecutor’s assertion that a defendant

or witness lied to the jury is improper and should not be

permitted. 143 Hawaiʻi at 56, 422 P.3d at 56.5 We also

5 Austin points out that courts across the country have recognized that the word “lie” and its derivatives may inject unfair prejudice when utilized by the prosecution. 143 Hawaiʻi at 50-51, 422 P.3d at 50-51. It also provides a detailed explanation of the myriad reasons why it is improper for a prosecutor to use the word “lie” or its derivatives in reference to any witness, and much more so regarding a defendant, including (1) it carrying severe negative associations beyond a simple expression of factual inaccuracy and denoting an intentional, wrongful act to actively deceive a listener; (2) its strongly pejorative tone conveying subjective disapproval that the witness would taint the judicial process with dishonesty; (3) amounting to an assertion of the prosecutor’s personal opinion as to the dishonest character of the testifier; (4) an invasion of the province of the jury, usurping its power to make credibility determinations; (5) the special weight given by juries to a prosecutor’s arguments because of the fact-finding facilities presumably available to the office; (6) the prosecutor’s opinion carrying with it the imprimatur of the government, especially with the high respect for integrity, fairness, and impartiality accorded to the office; (7) the inflammatory nature of the accusation with the reprehensible nature of lying deeply ingrained in most people from childhood; (8) the emotional reaction likely to be experienced by a juror when authoritatively told the juror has been lied to; (9) the actual immateriality of the term, as the ultimate concern of jurors is not whether a witness knows testimony to be false; (10) the possibility that the lie will be viewed as a separate wrongful act, which has the dangerous potential of swaying the jury from its duty to determine guilt regarding the charged offense; (11) ultimately creating the

31 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

explained that such statements are functionally equivalent to

the prosecutor expressing a personal opinion as to the veracity

of a witness. 143 Hawaiʻi at 51, 422 P.3d at 51.

With respect to the “People lie” comment, Cardona did not

dispute that the results of the DNA swabbing connected him to

Delacerda’s stabbing. Thus, this statement was not only

improper under Austin because it characterized Cardona as a

liar, it was therefore also misleading. In addition, through

this and the “Come on. Be truthful” comment, the DPA also

improperly implied his personal opinion of Cardona’s

credibility. In a case with no other direct eyewitness

testimony regarding the moment the stabbing occurred, Cardona’s

testimony was critical to his defense.

Thus, these statements by the DPA constituted prosecutorial

misconduct.

b. The “enforcer”

In addition, the DPA’s characterization of Cardona as an

“enforcer” who was “not scared” was improper:

[T]hat’s how [Cardona] was on those streets. He looked like he owned those streets, riding his bike all over, sometimes with the light on, sometimes with the light off, going up the one way, going against -- going against traffic, riding on the sidewalk, whatever, doing whatever he wants. He’s scared? He looks like the enforcer.

potentiality of extreme prejudice. 143 Hawaiʻi at 50-56, 422 P.3d at 50-56. And since the time of Cardona’s trial, we have admonished prosecutors to “scrub lie and its derivatives from their closing argument vocabulary.” Hirata, 152 Hawaiʻi at 31 n.5, 520 P.3d at 229 n.5.

32 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

Cardona never testified that he was scared riding his

electric bicycle on the streets of Waikīkī, where he had grown

up. Rather, Cardona testified that he was scared after

Castaneda-Pena punched him, Cardona’s glasses fell off, and he

could not see. Thus, the prosecutor improperly implied that

Cardona’s manner of riding his electric bicycle through the

streets of Waikīkī meant that Cardona was not scared during the

altercation. See, e.g., Basham, 132 Hawaiʻi at 112, 319 P.3d at

1120 (“Whether the evidence bears a logical and proximate

connection to the point the prosecutor wishes to prove is

perhaps the most obvious consideration in determining whether an

inference is reasonable.”) (citation omitted).

Further, the prosecutor’s comment that Cardona “looks like

the enforcer” was improper because there was no evidence or

testimony from which the DPA could reasonably infer that Cardona

somehow ran the streets of Waikīkī or was otherwise acting as an

“enforcer.” See, e.g., Basham, 132 Hawaiʻi at 112, 319 P.3d at

1120 (“It is also relevant [in determining whether an inference

is reasonably inferred from the evidence] whether the prosecutor

made the argument simply to enflame the passions of the jury.”)

c. Statements re Cardona’s eyesight testimony

The DPA’s statements about Cardona’s eyesight testimony

also improperly characterized him as a liar.

33 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

[R]emember, there’s no credible evidence that he can’t see. There’s no credible, independent evidence that he had an eye problem.

A defendant can testify as to his visual perception. See, e.g.,

State v. Vliet, 91 Hawaiʻi 288, 192, 983 P.2d 189, 291 (1999)

(summarizing OVUII defendant’s testimony that gabapentin gives

him double vision and muscle spasms in his eyes). Cardona

testified extensively about his apparent poor eyesight,

discovered when he was four years old, and which deteriorates so

rapidly that he needs a new glasses prescription every six

months.

This court has warned prosecutors to “refrain from

expressing their personal views as to a defendant’s guilt or

credibility of witnesses.” See State v. Marsh, 68 Haw. 659,

660, 728 P.2d 1301, 1302 (1986). The DPA’s statement implied

his personal views regarding Cardona’s credibility.6

6 The DPA also improperly inserted new evidence when he stated:

Defendant said, well, when I don’t wear my glasses, I’m blurry. He didn’t say he was color blind. Guy was wearing a red hat, black shirt, red shorts. You take off your glasses, you get up close to somebody, maybe you might see, but you see a figure.

We have instructed that closing arguments are “not the place to introduce new evidence outside the safeguards of the Hawaiʻi Rules of Evidence.” Basham, 132 Hawaiʻi at 113, 319 P.3d at 1121. There had been no evidence at trial introduced about whether Cardona was colorblind. The DPA suggested that Cardona should have been able to see that his attacker had on a red hat, black shirt, and red shorts, but had not asked whether Cardona could see colors.

34 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

All of these statements by the DPA in closing argument were

not benign or reasonable inferences; rather, they constituted

prosecutorial misconduct.

3. The prosecutorial conduct violated Cardona’s right to a fair trial

As misconduct has been established, we next address the

promptness or lack of a curative instruction and the strength

or weakness of the evidence against Cardona to determine

whether there is a reasonable possibility that the conduct

might have affected the trial’s outcome. Hirata, 152 Hawaiʻi at

31, 520 P.3d at 229 (citation omitted). If so, the misconduct

is not harmless beyond a reasonable doubt, and vacatur of the

conviction is required.

With respect to “the promptness or lack of a curative

instruction,” Rogan, 91 Hawaiʻi at 413, 984 P.2d at 1239, defense

counsel did not object to the statements during the DPA’s

closing argument. Therefore, there were no curative

instructions. Even if specific curative instructions had been

given, however, as this court recently pointed out in Hirata,

“curative instructions are not particularly effective.” 152

Hawaiʻi at 34, 520 P.3d at 232. This factor weighs in favor of

concluding that prosecutorial misconduct prejudiced Cardona’s

right to a fair trial.

35 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

The last factor to consider in prosecutorial misconduct

claims is “the strength or weakness of the evidence against the

defendant.” Rogan, 91 Hawaiʻi at 413, 984 P.2d at 1239. In this

case, the “strength or weakness of the evidence against the

defendant” hinged entirely upon Cardona’s testimony, as he was

the only one who testified about what happened between him and

Delacerda. Thus, the defendant’s credibility here was

particularly important. See, e.g., State v. Williams, 149

Hawaiʻi 381, 393, 491 P.3d 592, 604 (2021) (“This court has

expressed concerns about prosecutorial misconduct in cases where

the defendant’s credibility is particularly important. In

Underwood, this court stated that ‘[t]he potential for prejudice

is particularly evident where . . . the improper comments

specifically concerned the credibility of the testimony on which

the case turned.”) (citing State v. Underwood, 142 Hawaiʻi 317,

329, 418 P.3d 658, 670 (2018)).

Hence, we conclude 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 Hawaiʻi Constitution. The

prosecutorial misconduct in this case was not harmless beyond a

reasonable doubt because there is a reasonable possibility that

it affected the outcome of Cardona’s trial.

36 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

C. In light of these instances of prosecutorial misconduct, the DPA’s excessive leading questions contributed to the unfairness of Cardona’s trial

In his third question on certiorari, Cardona also asserts

the ICA erred by ruling that the DPA’s contumacious and repeated

use of leading questions was “improper” yet “harmless beyond a

reasonable doubt.” We agree with the ICA in its footnote

regarding the disrespectful nature of the DPA’s conduct during

trial: “[T]he 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.” Cardona, 2024 WL 450038, at *2 n.4.

This court has previously held that, even where “no single

instance of prosecutorial misconduct substantially prejudiced

[defendants’] right to a fair trial,” the “cumulative weight of

the prosecutor’s improper conduct” can be “so prejudicial as to

deny [defendants] a fair trial.” State v. Soares, 72 Haw. 278,

815 P.2d 428 (1991).

Other courts have held that leading questions, in addition

to other prosecutorial misconduct, can cumulatively prejudice a

defendant’s right to a fair trial. See, e.g., Com. v. Culver,

51 A.3d 866, 881-82 (Pa. Super. 2012) (holding that it was

prosecutorial misconduct for a prosecutor to ask excessive

37 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

leading questions despite sustained objections because the

prosecutor refused to obey the repeated instructions of the

trial court; further, while this conduct alone would not have

prejudiced the defendant, the prosecutor’s other conduct during

closing arguments, coupled with this conduct, was prejudicial);

Dillon v. State, 844 S.W.2d 944 (Ark. 1993) (cumulatively,

leading questions insinuating that the defendant, a police

officer, planted evidence on women in exchange for sex and

forced sex upon multiple others, denied the defendant a fair

trial).

Here, the clear instances of prosecutorial misconduct

discussed above, coupled with the pervasive leading questions,

cumulatively contributed to the denial of Cardona’s right to a

fair trial.

D. A Gabriel instruction was not required

In his fourth question on certiorari, Cardona argues the

circuit court’s failure to give a Gabriel instruction after

Officers Rezentes’ and Coen’s identifications “allowed the jury

to think Cardona was a bad person because HPD knows him, and his

Waikiki routine.” At the August 17, 2022 pretrial hearing,

however, defense counsel himself stated, “I don’t know if [the

Gabriel instruction is] even necessary.”

In any event, a Gabriel instruction was not necessary.

First, Rezentes did not even testify that he recognized Cardona

38 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

from a prior contact. Second, after Coen identified Cardona on

direct examination, defense counsel elicited, on cross-

examination, the relatively benign circumstances of Coen’s prior

contacts with Cardona: citations for COVID mask violations. In

sum, before trial, defense counsel did not want a Gabriel

instruction so as not to call attention to officers’ prior

contacts with Cardona. But on cross-examination, he elicited

the benign nature of the prior contacts himself. In these

circumstances, a Gabriel instruction was not required, contrary

to what Cardona now asserts.

E. The circuit court properly gave the “voluntary act” instruction

In his fifth and last question on certiorari, Cardona

claims that the circuit court’s “voluntary act” instruction

confused the jury into thinking that “but for” Cardona’s

possession of the knife in question, Delacerda would not have

perished. We disagree.

In this case, the ICA correctly concluded the instruction

was proper because it “informed the jury of a potential defense

available to Cardona.” Cardona, 2024 WL 450038, at *2. In a

prosecution for murder, which is statutorily defined in HRS §

707-701.5 as “intentionally or knowingly caus[ing] the death of

another person,” “[a]ny voluntary act (e.g., physical abuse) or

omission may satisfy the conduct element of the offense. The

39 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

death of another person, as the intentional or knowing result of

the conduct, constitutes the result element of the offense.”

State v. Aganon, 97 Hawaiʻi 299, 302, 36 P.3d 1269, 1273 (2001).

A person cannot be convicted of murder in the second degree if

his conduct was not a voluntary act. See HRS § 702-200(1) (“In

any prosecution it is a defense that the conduct alleged does

not include a voluntary act . . . .”); HRS § 702-201 (“‘A

voluntary act’ means a bodily movement performed consciously or

habitually as the result of the effort or determination of the

defendant.”).

There was a scintilla of evidence to require giving the

instruction, because Cardona testified he had held his knife out

and that it was possible Delacerda had run up against it and

stabbed himself. The circuit court did not err in giving the

“voluntary act” jury instruction, even over the defense’s

objection. See Adviento, 132 Hawaiʻi at 137, 150, 319 P.3d at

1145, 1158 (“[T]he trial court has a duty to instruct the jury

on the defense of EMED if the record reflects ‘any evidence’

supporting the defense, notwithstanding the defendant’s trial

strategy or theory of the case,” because “in our judicial

system, the trial courts, not the parties, have the duty and

ultimate responsibility to insure that juries are properly

instructed on issues of criminal liability.”).

40 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

V. Conclusion

Based on prosecutorial misconduct that violated

Cardona’s right to a fair trial, as explained above, we vacate

the ICA’s March 7, 2024 judgment on appeal, as well as the

circuit court’s December 13, 2022 judgment of conviction and

sentence. We remand this case to the circuit court for further

proceedings consistent with this opinion.

Andrew Strand, /s/ Mark E. Recktenwald (Myles S. Breiner, Sean Fitzsimmons, and /s/ Sabrina S. McKenna Kyle T. Dowd with him on the briefs) /s/ Todd W. Eddins for petitioner /s/ Lisa M. Ginoza Brian R. Vincent for respondent /s/ Vladimir P. Devens