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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 25-JUN-2026 07:55 AM Dkt. 133 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v. DAVID RICHARD STEVENS, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge and Wadsworth, J., with Gluck, J., concurring)
Defendant-Appellant David Richard Stevens (Stevens)
appeals from the November 8, 2024 Judgment of Conviction and
Sentence (Judgment) entered by the Circuit Court of the Second
Circuit (Circuit Court).1 Following a jury trial, Stevens was
found guilty of Murder in the Second Degree (Second Degree
Murder) in violation of Hawai i Revised Statutes (HRS)
§ 707-701.5 (2014 & Supp. 2018). Stevens was sentenced to life
imprisonment with the possibility of parole.
Stevens raises two points of error on appeal,
contending that the Circuit Court erred when it: (1) failed to
issue curative instructions or take other proper action when the
1 The Honorable Kirstin M. Hamman presided. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
prosecutor repeatedly committed prosecutorial misconduct; and (2)
failed to provide the jury with an instruction on a lesser
included offense of reckless manslaughter.
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 raised, we resolve
Stevens's points of error as follows:
(1) Stevens argues that the prosecutor's closing and
rebuttal arguments repeatedly crossed the boundary of permissible
advocacy by, inter alia, speculating about motives and emotional
states, mischaracterizing Stevens's statements, introducing new
"facts" not in evidence, minimizing the State's burden of proof,
and repeatedly making disparaging remarks about defense counsel
in the presence of the jury. Stevens submits that the cumulative
effect of these improprieties deprived Stevens of a fair trial.
Prosecutorial misconduct is "a legal term of art that
refers to any improper action committed by a prosecutor, however
harmless or unintentional." State v. Willis, 156 Hawai i 195,
204, 572 P.3d 668, 677 (2025) (citation omitted). "Whenever a
defendant alleges prosecutorial misconduct, this court must first
decide: (1) whether the conduct was improper; and (2) if the
conduct was improper, whether the misconduct was harmless beyond
a reasonable doubt." Id. (cleaned up).
Stevens argues that the prosecutor's conduct was
improper in closing argument when he described defense counsel's
advocacy as "drama" and "outrage coming from the other side"
designed to "distract you [the Jury], plain and simple, to throw
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you off your game[.]" Stevens also argues that the prosecutor's
following statements, made during rebuttal, were improper: Now, [defense counsel] makes a lot of hay about this -- about the State being required to prove a weapon, but the State is not required to prove a weapon. It's not in the instructions. But [defense counsel] is resting on that in hoping you'll take that.
Stevens argues that the statements constituted personal
attacks against defense counsel that were intended "to diminish
counsel's credibility and to suggest to the jury that legitimate
objections and argument were manipulative or insincere."
The Hawai i Supreme Court has held that "a prosecutor's
comment is clearly misconduct where it constitutes an
impermissible attack on defense counsel's integrity and operates
to denigrate the legal profession in general." State v. Pasene,
144 Hawai i 339, 370, 439 P.3d 864, 895 (2019) (cleaned up). The
supreme court has repeatedly ruled that "[i]mpugning defense
counsel's principles is serious misconduct" and "undermines a
trial's fairness because it is a strike at the defendant over the
shoulders of his counsel in an attempt to prejudice the jury
against the defendant." State v. Riveira, 149 Hawai i 427, 433,
494 P.3d 1160, 1166 (2021) (cleaned up) (quoting State v.
Underwood, 142 Hawai i 317, 327, 418 P.3d 658, 668 (2018)).
Other courts have noted the distinction between attacks
on a defendant's arguments and attacks on defense counsel. For
example, the Appellate Court of Connecticut explained: There is ample room, in the heat of argument, for the prosecutor to challenge vigorously the arguments made by defense counsel. It was not improper for the prosecutor to suggest that the defendant's attorney, by allocating a significant share of his closing argument to discussing what he deemed to be weakness in [a witness's] credibility and testimony, had attempted to divert the jury's attention away from the defendant's actions[.] Here, however, the prosecutor referred to the argument of the defendant's attorney as "smoke and mirrors[.]" We conclude that this
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aspect of the prosecutor's argument was improper because it implied, to whatever degree, that the defendant's attorney had not based his argument on fact or reason, but had intended to mislead the jury by means of an artfully deceptive argument. The prosecutor implied that the defendant's attorney intended to deceive and thereby impugned the integrity of the defendant's attorney. For that reason, the argument constituted prosecutorial misconduct.
State v. Orellana, 872 A.2d 506, 528 (Conn. App. 2005); see also
State v. Fouse, 319 P.3d 778, 786 (Utah App. 2014) ("calling
defense counsel's theory a distraction or irrelevant is
permissible but accusing opposing counsel of using such a
distraction as part of a purposeful scheme to mislead the jury is
not"); United States v. Shan Wei Yu, 484 F.3d 979, 986-87 (8th
Cir. 2007) (use of the term "red herring" in rebuttal argument is
improper when combined with other statements alluding to defense
counsel and deceitful trial tactics).
The dividing line between a permissible attack on
defense counsel's arguments and an impermissible attack on the
attorney is not always clear. See, e.g., State v. Tunoa, 113
Hawai i 393, 402, 153 P.3d 464, 473 (App. 2007). Here, the
prosecutor stated that defense counsel was trying to "distract"
the jury - "to throw [the jury] off [their] game" - and "resting
on that in hoping [the jury would] take that." Notably, the
prosecutor repeatedly directed his remarks at defense counsel
himself, rather than counsel's arguments or the defense theory of
the case. The prosecutor said that defense counsel "scoffed" at
a witness's testimony and was "outraged." We conclude that the
prosecutor's statements constituted misconduct. Accord Riveira,
149 Hawai i at 433, 494 P.3d at 1166 (holding that the
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prosecutor's comment that defense counsel was trying to "trick"
the jury constituted serious misconduct).
Stevens also argues that the prosecutor's references to
Stevens's "rage" and "explosive anger," and the prosecutor's
statement that Stevens "snapped," constituted misconduct.
Stevens maintains that these arguments were improper because none
of the witnesses at trial described Stevens as angry, enraged, or
out of control. Stevens submits that even if frustration could
somehow be inferred from the footage of his police interview,
that reaction would relate solely to Stevens's mental state at
the time of interrogation, not his mental state on the night of
Patrick Wisely's (Wisely) death. This argument has merit.
"[I]t is well-established that prosecutors are afforded
wide latitude in closing to discuss the evidence, and may 'state,
discuss, and comment on the evidence as well as to draw all
reasonable inferences from the evidence.'" Willis, 156 Hawai i
at 204, 572 P.3d at 677 (citation omitted). However,
"[p]rosecutors are also forbidden from introducing new
information or evidence in closing argument." State v. Hirata,
152 Hawai i 27, 33, 520 P.3d 225, 231 (2022) (citation omitted).
"[E]xpressions of personal opinion by the prosecutor are a form
of unsworn, unchecked testimony and tend to exploit the influence
of the prosecutor's office and undermine the objective detachment
that should separate an attorney from the cause being argued."
Id.
Here, the jury heard the prosecutor opine that
Stevens's conduct in the recorded interview reflected "explosive
anger," which was the same "explosive anger" that caused Stevens
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to "snap[]" on the night of Wisely's death. Yet, the jury heard
no evidence that could legitimately support the prosecutor's
claim: no witness testified as to Stevens's mental state at the
time of Wisely's murder. The prosecutor's statements were not
reasonable inferences from the evidence, and improperly expressed
a personal belief about Stevens's mental state. See id. (holding
that the prosecutor's statement was misconduct where the jury
heard no evidence that could legitimately support the
prosecutor's claim); see also State v. Cardona, 155 Hawai i 23,
38, 556 P.3d 369, 384 (2024) (holding that the prosecutor's
comment that the defendant was "not scared" during an altercation
based off the defendant's manner of riding an electric bicycle
was improper).
Stevens also argues that statements made by the
prosecutor about a baseball bat "improperly argued facts not in
evidence by inventing a 'hypothetical' baseball bat and
improperly bolstered Detective Kaneshiro's credibility." Stevens
contends that the "baseball bat" created a "new and highly
inflammatory image unsupported by any testimony" that "served to
heighten emotion, not illuminate the facts."
In some instances, the use of hypothetical
illustrations is not considered prejudicial, even if improper.
See State v. Kupihea, 80 Hawai i 307, 317-18, 909 P.2d 1122,
1132-33 (1996) (holding that the use of a hypothetical based on a
fictional scenario to explain the law on extreme mental or
emotional disturbance manslaughter was not prejudicial, where the
circuit court "cautioned more than once" that the prosecutor's
remarks "were not evidence[,]" the defense counsel was able to
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refute the prosecutor's statements in rebuttal, and "the jury was
properly instructed on the law"). However, here, unlike in
Kupihea, the prosecutor did not create a hypothetical or
fictional scenario to explain legal principles. Instead, the
prosecutor suggested a baseball bat was the weapon used to murder
Wisely - even though the detective who was on scene testified
there was no object recovered as the weapon and the medical
examiner testified that "a wide range of objects" could have
caused Wisely's injuries. The "baseball bat" hypothetical was
not a reasonable inference from the evidence; instead, the
prosecutor encouraged new and inflammatory imagery. As Stevens
argues, "[a] baseball bat evokes deliberate, forceful, and even
sporting violence . . . . Injecting that imagery . . . served to
Also, unlike in Kupihea, Stevens's counsel objected -
but the objection was overruled and no curative instruction was
given. See id. at 317-18, 909 P.2d at 1132-33. Compounding the
problem, the baseball bat argument was made in rebuttal,
prohibiting defense counsel from confronting it. See, e.g.,
State v. Nofoa, 135 Hawai i 220, 229-30, 349 P.3d 327, 336-37
(2015) (noting prejudice associated with improper rebuttal
argument). We conclude that the prosecutor's "baseball bat"
hypothetical was improper.
Stevens points to three other instances of allegedly
improper conduct, which we conclude do not rise to the level of
prosecutorial misconduct.
Finally, Stevens argues that the misconduct was not
harmless beyond a reasonable doubt because it was cumulative,
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there were no curative instructions, and the case rested largely
on the testimony of Curtis Edward Bryant (Bryant) and Kenneth
David Bonavia (Bonavia), who recounted Stevens's statements to
them the day after Wisely died, but who were not witnesses to
what happened to Wisely. The State does not address this
argument at all; instead, the State merely argues that there was
no prosecutorial misconduct.
"Prosecutorial misconduct is not harmless beyond a
reasonable doubt if there is a reasonable possibility that the
misconduct complained of might have contributed to the
conviction." Willis, 156 Hawai i at 204, 572 P.3d at 677
(citation and internal quotation marks omitted). We consider
three factors in applying the harmless beyond a reasonable doubt
standard: "(1) the nature of the prosecuting attorney's
misconduct; (2) the promptness or lack of a curative instruction;
and (3) the strength or weakness of the evidence against the
defendant." Hirata, 152 Hawai i at 34, 520 P.3d at 232 (citation
omitted).
The first factor weighs in favor of Stevens. The
multiple instances of prosecutorial misconduct undermined defense
counsel's credibility and improperly inserted new evidence and
personal opinion. See, e.g., State v. Klinge, 92 Hawai i 577,
596, 994 P.2d 509, 528 (2000) (discussing potential prejudice of
cumulative effect of multiple instances of misconduct).
The second factor also weighs in favor of a new trial,
because no curative instructions were given.
The third factor is more neutral, somewhat favoring the
prosecution. There were no witnesses to Wisely's death. See
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State v. Conroy, 148 Hawai i 194, 205, 468 P.3d 208, 219 (2020)
(holding that "[o]f significance to a determination of the
strength of the prosecution's case is that there were no
witnesses to the altercation other than [the defendant] and [the
complaining witness]"). On the other hand, Bryant and Bonavia
testified that Stevens told them that he killed a guy. Stevens
also had Wisely's blood on the top of his shoe and under his
fingernail. However, Stevens repeatedly told the police
detective that he heard Wisely moaning, so he went to check on
him, and gave Wisely water at Wisely's request, and then left.
In his police interview, Stevens denied killing Wisely. No
object that could be pointed to as a potential murder weapon was
located by the police.
On the record before us, we cannot conclude that there
is no reasonable possibility that the prosecutorial misconduct
contributed to Stevens's conviction on the charge of Second
Degree Murder. Accordingly, we conclude that the prosecutor's
improper conduct deprived Stevens of a fair trial and constitutes
grounds for a new trial. See Pasene, 144 Hawai i at 364, 439
P.3d at 889 ("Prosecutorial misconduct may provide grounds for a
new trial if the prosecutor's actions denied the defendant a fair
trial." (quoting State v. Agrabante, 73 Haw. 179, 198, 830 P.2d
492, 502 (1992)).
(2) Stevens argues that the Circuit Court erred in
failing to give the jury a lesser included instruction for
reckless manslaughter. A trial court is obligated to instruct
the jury with respect to an included offense where there is a
rational basis in the evidence for a verdict acquitting the
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defendant of the offense charged and convicting the defendant of
the included offense. See HRS § 701-109(5) (2014). We are
remanding this case for a new trial. We cannot determine whether
this standard will be met based on the evidence presented at the
new trial. Accordingly, we decline to reach this issue.
For the reasons set forth above, the Circuit Court's
November 8, 2024 Judgment is vacated and this case is remanded to
the Circuit Court for a new trial.
DATED: Honolulu, Hawai i, June 25, 2026.
On the briefs: /s/ Katherine G. Leonard Presiding Judge Joanne S.C. Hicks (Hicks Law), /s/ Clyde J. Wadsworth for Defendant-Appellant Associate Judge
Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee
CONCURRING OPINION BY GLUCK, J. I fully concur with the majority's holding regarding
prosecutorial misconduct. I also concur with the majority that
these errors were not harmless beyond a reasonable doubt, but I
write separately because I believe that the third Willis factor
weighs strongly in favor of the prosecution, making this a very
close case.
The prosecution presented evidence from two individuals
who interacted with Stevens around the time of Wisely's death.
Bryant testified that on May 20, 2020, Stevens told Bryant that
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"he [Stevens] was going to do away with all the homeless people."
Bryant also testified that, the following day (May 21), Stevens
said that "he had -- did something that -- last night that God
was going to punish him for." Similarly, Bonavia testified that
on May 21, Stevens told Bonavia: "I broke one of God's
commandments last night" and "I killed a guy. Do you want to see
the blood?" Stevens also told Bonavia that "he beat this man to
death with a stick" and asked if Bonavia "wanted to see the
body[.]"
Maui Police Department Detective Jonathan Kaneshiro
testified that on May 21, 2020, he responded to a scene of a
deceased male, identified as Wisely, at Waiola Church in Lahaina.
Kaneshiro was notified about Stevens being a possible suspect and
located Stevens on Front Street. Detective Kaneshiro testified
that "[i]t appeared like he had blood on his hands and
fingernails, especially kind of right around the fingernail area.
And then it had what looked like blood on his shoes as well." A
DNA analysis confirmed that the blood found on Stevens was most
likely from Wisely. 1
Detective Kaneshiro conducted an interview of Stevens
at the police station, and the recorded interview was played in
open court. In the interview, Stevens denied being involved with
Wisely's death and he denied telling individuals that he killed
someone. Stevens admitted that he encountered Wisely at Waiola
1 Criminalist Penny Kremer that "the probability of randomly selecting an unrelated individual with a DNA profile that cannot be excluded as a possible contributor to the partial major DNA profile from this item of evidence is one in greater than 8 trillion."
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Church on the night of the incident. He stated that he noticed
Wisely was "moaning" under a blanket, and he (Stevens) asked
Wisely if Wisely was okay. Stevens stated that he "shook the
blanket" and touched a water jug because he thought Wisely wanted
some water. Stevens stated that he did not see any blood. He
claimed that he "lifted" Wisely's head to help Wisely drink water
twice, and that Wisely "poured water on himself." Stevens stated
that, after fifteen to twenty minutes, he told Wisely he had to
go and left the scene.2 Stevens acknowledged that his DNA would
be "all over."
When Detective Kaneshiro asked why Stevens had blood on
his shoes, Stevens responded, "I don't know." Over the course of
questioning, Stevens stated that he was "getting frustrated"
because he had been there for "six to eight hours." 3 Detective
Kaneshiro testified that when he questioned Stevens, Stevens
became "agitated and very defensive." Detective Kaneshiro
pressed Stevens about the blood on his shoe: Stevens had stated
that Wisely's "face was okay," and that perhaps Stevens had
stepped in some of Wisely's blood. Detective Kaneshiro asked
Stevens how blood droplets could get on the top of Stevens's
shoes; after additional questioning, Stevens stated, "I don't
know about droplets."
In sum, Bryant and Bonavia testified that Stevens
confessed to killing someone. Stevens had Wisely's blood on the
2 Later in the interview, however, Stevens states he was at the scene for a half an hour. 3 Stevens later stated, "I've been detained for six, seven, eight hours," and Detective Kaneshiro responded saying "it's only been four hours."
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top of his shoe and under his fingernail, despite Stevens telling
Kaneshiro that Stevens did not see any blood on Wisely. True,
there was no eyewitness testimony to the murder itself. See
Conroy, 148 Hawai i at 205, 468 P.3d at 219. Nevertheless, I
believe that the strength of the evidence here weighs heavily in
favor of the prosecution.
"When reviewing the nature of prosecutorial misconduct,
courts should inspect how the prosecution entwined its improper
conduct within the case's contextual fabric." Riveira, 149
Hawai i at 433, 494 P.3d at 1166 (holding that prosecutorial
misconduct, including the prosecutor's closing argument that
defense counsel was trying to "trick" the jury, was harmless
where there were two eyewitnesses to the crime). Here, the
prosecutorial misconduct – all of which occurred at closing
argument – had little to do with the central evidence in the
case. The prosecutor's improper arguments regarding rage, a
baseball bat, and defense counsel's tactics neither bolstered nor
undermined any of this evidence. Nevertheless, the Hawai i
Supreme Court has held that "[p]rosecutorial misconduct is not
harmless beyond a reasonable doubt if there is a reasonable
possibility that the misconduct complained of might have
contributed to the conviction." Willis, 156 Hawai i at 204, 572
P.3d at 677 (citation omitted; emphases added). 4 In applying
this standard to the instant case, I agree with the majority's
4 As the majority notes, the prosecution did not address Stevens's arguments as to harmlessness in its Answering Brief.
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conclusion that the prosecutorial misconduct was not harmless
beyond a reasonable doubt.
/s/ Daniel M. Gluck Associate Judge