A majority opinion of the Hawaii Supreme Court, filed Wednesday, ordered a new trial for a Hawaii Island man tried and convicted by a Kona Circuit Court jury for the 2019 sexual assault of a visiting 78-year-old woman who camped at a beach park in South Kohala. At the time of the attack he was 18 years old.
Three justices hold that the prosecutor’s closing remarks constituted prosecutorial misconduct, with one dissenting justice joined by Chief Justice Mark Recktenwald.
During the state’s closing argument at the trial in March 2022, the prosecutor told the jury that her decision “relates to one question. Is (complaining witness) credible?” (The complaining witness is the alleged victim.)
“She is 80 years old. She was nervous and trembling on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared in the hospital. Even a week and a half later, she was scared, and she was still scared in court. This is consistent with someone who is traumatized.”
The majority believes that the last sentence amounts to prosecutorial misconduct because the prosecutor added new evidence and expressed a personal belief about the alleged victim’s credibility, thereby undermining the suspect’s right to a fair trial.
Zeth Browder was found guilty on March 29, 2022, of two counts of first-degree assault, two counts of third-degree assault, first-degree burglary, kidnapping and tampering with physical evidence.
The July 8, 2019, indictment alleged that Browder sexually assaulted the woman on June 15, 2019, in her tent at Spencer Beach Park in South Kohala, where she was camping.
Browder, represented by Walter Rodby, appealed to the Intermediate Court of Appeals. The ICA quashed Broder’s conviction and ordered a retrial based on other comments made by the prosecutor during her closing remarks.
But the state did not appeal these comments.
Browder appealed the ICA majority decision on the “traumatized” comments, arguing the words did not constitute prosecutorial misconduct.
The majority opinion of the state Supreme Court, composed of Justices Todd Eddins, Sabrina McKenna and Vladimir Devens, disagreed, saying: “There was nothing that could establish ‘trauma’ as a concept or diagnose traumatized the witness could state. There was also no basis for the idea that the complaining witness “remained traumatized when she testified two and a half years after the alleged assault.”
The three-judge opinion cited the state Supreme Court’s recent ruling in State v. Hirata, in which the court overturned Chanse Hirata’s conviction for continuous sexual assault of a minor. However, the Hirata opinion came a year after the Browder trial.
The court ruled that the “traumatized” statement in the Hirata case was misconduct by the same deputy prosecutor in the Browder case, which “eroded the defendant’s constitutional right to a fair trial.”
A dissent from Judge Lisa Ginoza, joined by Recktenwald, said the term “traumatized” was not used “in a manner that inferred a medical or psychological condition;” it ‘was used in its ordinary sense’.
It goes on to say, “The majority decision thus conflicts with this court’s prior decisions holding that expert testimony is not required when the issues are within the jury’s general knowledge,” and they would challenge their “general knowledge of how people operate in the world”. ”, citing other cases.
Unlike the Hirata child sex abuse case, where “expert testimony may be needed to help the jury assess the credibility of witnesses,” a layperson would understand the evidence, the dissent says. The deputy prosecutor’s “traumatized” statement was made to address Browder’s defense theory that the 80-year-old was lying.
It says the accuser gave evidence at four different times: the morning of the alleged attack, that day at the hospital when she was interviewed by a detective, and testifying at trial when she was scared. Witnesses, including police, a nurse and a camper, testified that she appeared as if she were crying, shocked, nervous and tearful.
The prosecutor also pointed to the evidence given at trial about the many physical injuries she suffered as an underlying basis for why she was emotional and scared. trauma in (her) body from the attack.”
The nurse found physical evidence consistent with the alleged assault.
The dissent included many details of the woman’s testimony, and that she had had contact with the 18-year-old before the incident, taking him to the store and to his grandmother’s house.
She testified that she woke up in the early morning hours to find a large person on top of her in her tent, telling her to keep her eyes covered or he would kill her.
The Honolulu District Attorney’s Office, which handled the case because the Hawaii County Prosecutor’s Office had an internal conflict of interest, issued the following statement:
“The Office of the Attorney General disagrees with the majority opinion and agrees with the dissent,” adding that it is “willing to rehear the case.”
