HONOLULU — A Hawai‘i Supreme Court majority opinion filed Wednesday ordered a new trial for a Hawai‘i island man, tried and convicted by a Kona Circuit Court jury for sexually assaulting in 2019 a visiting 78-year-old woman camping at a South Kohala beach park. He was 18 years old at the time of the attack.
Three justices are of the opinion that the prosecuting attorney’s closing remarks constituted prosecutorial misconduct, with one dissenting justice joined by Chief Justice Mark Recktenwald.
During the state’s closing argument at trial in March 2022, the prosecution told the jury its decision “comes to one question. Is (complaining witness) believable?” (The complaining witness is the alleged victim.)
“She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She was scared even a week and a half later, and she was still scared in court. This is consistent with someone who’s been traumatized.”
The majority opinion is 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, undermining the defendant’s right to a fair trial.
Zeth Browder was found guilty March 29, 2022, on two counts of first-degree sexual assault, two counts of third-degree sexual assault, first-degree burglary, kidnapping and tampering with physical evidence.
The July 8, 2019, indictment alleged Browder sexually assaulted the woman 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 set aside Broder’s conviction and ordered a new trial based on other comments the prosecutor made during her closing remarks.
But the state did not appeal its decision on those comments.
Browder appealed the ICA’s majority decision on the “traumatized” comments, that those words did not constitute misconduct by the prosecutor.
The state Supreme Court majority opinion of Justices Todd Eddins, Sabrina McKenna and Vladimir Devens disagreed, saying: “There was nothing to establish ‘trauma’ as a concept or to diagnose the witness with being traumatized. Nor was there foundation for the idea that the complaining witness remained “traumatized when she testified two and a half years after the alleged sexual assault.”
The three justices’ opinion cited the recent state Supreme Court decision in State v. Hirata, in which the court vacated the conviction of Chanse Hirata for the continual sex assault of a minor. The Hirata opinion, however, came a year after the Browder trial.
The court found the “traumatized” statement in the Hirata case was misconduct by the same deputy prosecutor in the Browder case that “eroded the defendant’s constitutional right to a fair trial.”
A dissenting opinion by Justice Lisa Ginoza, with Recktenwald joining, says that the term “traumatized” was not used “in a manner inferring a medical or psychological condition;” it “was used in its ordinary sense.”
It further says, “The majority decision thus conflicts with this court’s prior decisions holding that expert testimony is not required when the issues are within the common knowledge of the jury,” and they should use their “general knowledge of how humans operate in the world,” citing other cases.
Unlike the Hirata child sex assault case, where “expert witness testimony may be necessary to help guide a jury’s ability to assess witness credibility,” a lay person would understand the evidence, the dissenting opinion 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 prosecutor gave evidence of four different times — the morning of the alleged attack, at the hospital that day, when she was interviewed by a detective, and testifying at trial when she was scared. Witnesses, including police, a nurse and a camper, testified she appeared like she was crying, shaken, nervous, tearful.
The prosecutor also pointed to evidence provided during the trial of the multiple physical injuries she had, which were an underlying basis for why she was emotional and scared, even recounting the incident when testifying over the following days and years, that she was going over the trauma in (her) body from the attack.”
The nurse found physical evidence consistent with the alleged sexual assault.
The dissenting opinion included much of the details of the woman’s testimony, and that she had interacted with the 18-year-old before the incident, driving him to the store and to his grandmother’s house.
She testified she awoke in the early morning hours to find a large person in her tent on top of her, and told her to keep her eyes covered or he would kill her.
The Honolulu Prosecutor’s Office, which handled the case due to the Hawai‘i County Prosecutor’s Office having an internal conflict of interest, issued the following statement:
“The Department of the Prosecuting Attorney disagrees with the majority opinion and agrees with the dissenting opinion,” adding it is “prepared to try the case again.”
