CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII ) ) ) ) ) ) ) ) ) ) ) ) DEFENDANT APPELLANT SEAN CONROY S OPENING BRIEF

Transcription

1 Electronically Filed Intermediate Court of Appeals CAAP MAY :51 PM CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII STATE OF HAWAII Plaintiff-Appellee, vs. SEAN CONROY, Defendant-Appellant. CR. NO (4 APPEAL FROM JUDGMENT CONVICTION AND PROBATION SENTENCE; NOTICE OF ENTRY FILED MAY 2, 2012 CIRCUIT COURT OF THE SECOND CIRCUIT The Honorable Richard T. Bissen, Jr.,Judge DEFENDANT APPELLANT SEAN CONROY S OPENING BRIEF STATEMENT OF AUTHORITIES CERTIFICATE OF SERVICE Of Counsel: MATTHEW S. KOHM Hiahia Street Wailuku, Maui, Hawaii ( Office ( Facsimile For Defendant Appellant SEAN CONROY

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii- I. STATEMENT OF THE CASE II. POINTS OF ERROR ON APPEAL III. STANDARD OF REVIEW IV. LEGAL ARGUMENT A. IMPROPER LEGAL ARGUMENT CONSTITUTES PROSECUTORIAL MISCONDUCT AND REQUIRES THE CONVICTION TO BE VACATED V. CONCLUSION ii-

3 TABLE OF AUTHORITIES State v. Balisbisana, 83 Haw. 109, 924 P.2d 1215 ( State v. Marsh, 68 Haw. 659, 728 P.2d , -15- State v. Samuel, 74 Haw. 141, 838 P.2d 1374 ( iii-

4 CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII STATE OF HAWAII Plaintiff-Appellee, vs. SEAN CONROY, Defendant-Appellant. CR. NO (4 DEFENDANT APPELLANT SEAN CONROY S OPENING BRIEF DEFENDANT APPELLANT SEAN CONROY S OPENING BRIEF Comes Now, Defendant Appellant SEAN CONROY (hereinafter referred to as Conroy, or Defendant, and hereby files his Opening Brief pursuant to Hawaii Rules of Appellate Procedure, Rule 28. I. STATEMENT OF THE CASE Defendant Appellant, Sean Conroy (hereinafter "Conroy", case went to trial on March 5, The first witness called on behalf of the Government was witness and complainant Jessica Hein. Hein identified the defendant and told the jury that she was injured on March 14, Transcript "T1" dated 3/5/12. Hein informed the jury that she was assaulted in the parking lot. T1 at 17. She remembers struggling over car keys, being punched, losing consciousness and falling to the hood of her Camaro car. Hein told the jury that she was hit in the face. T1 at 18. Because of her injury she can now only smile on half the side of her face. T1 at 23. She told the jury that she is 5 foot 9 and 120 pounds, while she believes the defendant is and 240 to 250 pounds. T1 at 23. After her injury, Hein went to the doctor and was treated by Dr. Andrew Don. T1 at 25. On cross-examination Hein explained that she was married to Conroy. T2, dated March 6, 2012 at 4. While she was married, Hein was receiving Social Security Disability ("SSI". T2 at 6. Hein agrees that she had an obligation to be truthful to the Social Security Department. T2 at 8-9. Hein agrees that she was not honest to the Social Security Department as she didn't tell them she was married and never informed them that she was convicted of a felony.

5 T2 at 9. At the time of the incident, Hein believes she was struck by both of defendant's fists. T2 at 13. She could not remember the number of times or the location of the first punch. Hein denied that she kicked Conroy and did not recall whether she punched him. T2 at 14. She agreed telling the police officer that she slapped Conroy while they were struggling for the keys. T2 at 20. She agrees that she slapped Conroy in the face before she was punched. The next witness to testify for the Government was Andrew Don, M.D. T1 at 50. Dr. Don is an ear, nose and throat specialist. He first examined Jessica Hein on March 22, Dr. Don testified that Hein had swelling to her left side of her cheek and that her eyes were swollen, as well as her nose. T1 at 55. She also appeared to have a chipped fracture on the front of a tooth, or something of that nature. Dr. Don wanted to obtain an X-ray of Hein's face. T1 at 56. From the X-ray, he determined that she had a nasal fracture stemming from a broken nose in several places, and a minimally displaced cheekbone fracture. T1 at 56. Because the fracture was not displaced, Dr. Don determined that there was no need for any surgical intervention. Dr. Don explained that because of the facial swelling, Hein seemed to have a large blood clot coagulating on the side and it takes time for that kind of injury to subside. T1 at 57. The doctor also explained that scarring to the muscle might restrict facial movement for the smile, but he did not believe it was nerve damage. But if there was nerve damage that it will gradually improve. T1 at 57. Dr. Don also explained that he hadn't been providing any medical follow up for Ms. Hein. T1 at 58. The doctor testified that he could not tell for sure if the situation was permanent. Dr. Don further explained that if there is a residual problem then other steps could be taken like physical therapy or massage to reduce the scar tissue. T1 at 58 Dr. Don testified that the type of injury sustained by Hein would be consistent with being hit by a fist. T1 at 62. The doctor believes that it would be more than one blow to get the facial fractures. Dr. Don believes it was two punches. T1 at 62. In cross-examination Dr. Don testified that he treated Jessica Hein four times and the last time that he saw her was in May T1 at 64. Dr. Don explained that one punch is sufficient to cause the nasal fracture or the cheekbone fracture. T1 at 65. It was his opinion that there were two punches because there was more than one fracture. Because the fractures were not displaced, Dr. Don did not recommend surgery. T1 at 66. He also agreed that there was no brain hemorrhage or brain injury. -2-

6 Paramedic Edward Hill testified next for the Government. T2 at 23. Hill explained that he was on duty on March 14, 2011 and responded to the scene of the incident of this case. T2 at Hein complained of facial pain with possible loss of consciousness after an assault. T2 at 33. The injury was classified as minor. The paramedic testified that Hein had pain to her entire face with swelling to her cheek and eyes with the effect more prominent to her left with pronounced upper lip swelling. T2 at She was given ice and moved to the ambulance. The next witness to testify was police officer William Melton. T2 at 46. Officer Melton arrived at the scene at about 10:45 a.m. and recalls a woman approaching him with a swollen face with cuts. She appeared to be dazed and out of it and pointed to the defendant. T2 at 47. After she I.D.'d Conroy, Conroy waived his right and agreed to talk with the police officer. T2 at Officer Melton testified that Conroy suspected Hein was fooling around on him and they struggled for the car keys. T2 at Conroy got struck on the left side of his temple and he responded by punching Hein twice to the face. T2 at Conroy knocked her backwards on top of the hood of their Camaro car, and she laid there. T2 at 50. He knew that she was dazed. Officer Melton testified that Conroy said he had injuries to the left side of his temple where struck. T2 at 51. Melton observed red layer marking with a kind of purplish coloring to the left side of the temple. Officer Melton could not recall Conroy complaining of any other pain. Officer Melton described Sean Conroy as cooperative and responding appropriately to the questions asked. T2 at 61. While it was his normal practice to document photos as soon as possible, he did not take any pictures of Conroy at the scene. T2 at Upon further consideration, Officer Melton agreed that when he arrived at the scene, he actually spoke to Conroy first and the complainant Hein second. T2 at 66. Officer Melton described Hein as being dazed and not talkative. T2 at 67. She had apparent injuries. T2 at 68. Officer Melton agreed that he classified this as an apparent minor injury. T2 at 69. The next witness to testify for the Government was Jon Brammer. Brammer told the court that he is a neighbor of Conroy. T2 at 71. He remembers seeing Hein after the incident and that his wife wanted nothing to do with it. T2 at 72. When Brammer first saw Hein, he thought she may have hit her head on the steering wheel in an accident. T2 at 73. He went to -3-

7 approach Hein to see what was happening and he observed her to be swearing at Conroy. T2 at 73. Brammer testified "I noticed Sean, he's walking behind. She's swearing at him. He's defending himself. Obviously, it turns out she says, "You hit me." Sean says, "Well, you hit me."" T1 at 73. Brammer explained that he thought that Hein had been drunk driving again and this was the result of it. Brammer describes that while he was trying to assist Hein with her injuries, that she and Conroy continued to have a heated exchange. T2 at He explained that there was arguing and swearing going back and forth between the two. Brammer testified that he's known Conroy for 5-1/2 years as his neighbor. T2 at 81. When they were outside of his apartment on the day of the incident he saw and heard Hein swearing at Conroy. T2 at 83. Brammer described Conroy's behavior as defensive. He described Hein as having a cut and swollen side of her face with some blood. He rendered first aid to help her with the bleeding. T2 at 84. Brammer's wife Kelly had gone inside the unit because she didn't want anything to do with more drama. T2 at 86. The Court then took up the issue of considering admissibility of 404(b material. T2 at 90. The parties had reserved these arguments from the motions in limine. The first incident considered was from December 25, 2010 when John and Kelly Brammer had a dinner party where Ms. Hein back-kicked Conroy's hand which struck the door, and resulted in a broken metacarpal in his right hand. T2 at 90. The Government objected to the evidence on the basis that the issue of first aggressor was not yet relevant. T2 at 91. Defendant argued the evidence would be admissible because the issue of who was the initial aggressor is relevant. T2 at The trial court recognized that the evidence is the type that a defendant would use to argue selfdefense and whether the defendant's actions were an appropriate response. T2 at 94. The Government then argued that defendant would have to be the first aggressor because the first act of aggression would be trying to take the keys from Ms. Hein. T2 at 95. The trial court explained that the issue of who is the first aggressor would be open to argument of the attorneys. T2 at 96. The start of aggression could have been the physical striking or blow, after a heated argument. It was up to the jury to decide what constitutes the first strike, or first blow, to constitute the first aggressor. T2 at 97. The trial court denied defendant's request to submit evidence of a September 2010 incident when Hein tried to hit him with a frying pan. T2 at 107. The trial court reasoned that it would open up other areas of why the event took place and what led to the argument. The Court -4-

8 was concerned that such evidence may remove the focus of the issues of the particular incident in this trial. T2 at The trial court held that it could not see the relevance to the case and therefore denied the evidence over the objection of the defense. T2 at 108. Defense counsel explained that the prior bad acts involving the complainant Hein would go towards the reasonableness of Conroy's apprehension of immediate harm. T2 at 108. Over the Government's objection, the Court allowed the defense to offer evidence of an incident occurring March 16, 2009 and allowing No. "3," in the motion in limine, where Hein kicked Conroy s hand and broke a metacarpal bone. R at 34. After the Government finished its case, the defense recalled Jon Brammer as a witness. T2 at 129. Brammer explained that Conroy was his neighbor and an acquaintance that he would see weekly. T2 at 130. Conroy and Hein would come to his house for lunch or dinner. It is his opinion that Sean Conroy is a peaceful person. T2 at 131. Brammer testified that in the evening of Christmas 2010 he saw an incident happen between Conroy and Hein. T2 at 132. The incident happened in his unit's bathroom when Hein kicked Conroy in his hand twice. T2 at Brammer explained that Hein was on her back and she was drunk and she kicked out at Conroy. Sean Conroy, 44 yearls old, testified in his own defense. At the time of the incident he was working full time doing equipment maintenance at the airport. T2 at 137. He also worked part time on charter boats. Conroy explained that he married Hein in Arizona and they came back to live in Maui. T2 at 138. On March 16, 2009 they were sitting next to each other on the couch in his living room. T2 at 140. They got into a verbal argument regarding the mail and Hein grabbed the TV remote control which she broke on the side of his head. She hit him in the head at least three times. T2 at 140. The third hit was into the side of his face which took out a tooth. T2 at 141. He did not hit or touch Hein. Conroy explained that at this point they kind of lived more like roommates. Hein did her own thing and had her own bedroom. On the day of the incident in this case, Conroy got up in the morning first and was on the couch watching TV. T2 at 142. Hein came out of her bedroom and was getting herself ready to go out. She came up to Conroy and said, "Move the truck." T2 at 142. When Conroy went outside he saw his Igloo cooler in the backseat of the Camaro driven by Hein. T2 at 143. Conroy testified that he felt like Hein was saying she could do whatever she wanted with his stuff. T2 at Conroy also saw his personal sheets in the back of the car, so he grabbed -5-

9 the Igloo cooler and other stuff. T2 at 145. He placed these items in his truck. Hein then told him he was stupid and started pulling stuff out of the truck. They then took turns as Conroy pulled the stuff out of the car she would put it back in. T2 at 147. Finally, Conroy asked her to give him the keys to the truck, house and mailbox and Camaro. T2 at 148. Hein held the keys out and dangled them in front of him challenging Conroy to take them from her. T2 at 149. Conroy was about 2 to 3 feet from Hein near the hood of the Camaro. T2 at 150. Hein then kicked Conroy in his groin, bending him over. T2 at 152. After she kicked him, she hit him in his left temple. T2 at 153. Conroy responded by punching out at her twice. After punching, Conroy saw Hein on the hood of the Camaro car. T2 at 154. Conroy described her as dazed and swearing (cussing. Hein had landed on her back and he believes that she wasn't able to stand up afterwards. T2 at 158. Conroy testified that he got shaken from seeing her and realizes he hit her face. The total incident took less than three minutes. When a police officer came to the scene, Conroy immediately went to speak with him. T2 at 159. Police Officer Melton spoke with both of them. T2 at 160. Conroy testified that his groin was sore and that he had pain in his left eye area. He had a slight vision problem. T2 at 161. Conroy recalls that the police officer took two photos of him at the police station and they were taken about 45 to 50 minutes after they left the residence. He also remembers that two photos were taken at the scene of him. T2 at 164. On cross-examination Conroy agrees that he re-broke a finger bone when he hit Hein. T2 at 164. Conroy explained that it was the metacarpal bone in his pinky. Conroy explained that Hein used a front kick to kick him in his groin. T2 at 165. When she kicked him in the groin, it was hard enough to double him up. T2 at 170. This is when she hit him in the head too. Conroy explained that it was his natural reaction to punch out after he was kicked in the groin and doubled up. T2 at 171. He did not step into the punch. Conroy explained that she was the loud angry person and he was more calm. T2 at 172. After each side rested its case, the parties settled jury instructions. T2 at 187. The Court denied J.I T2 at The Court held that the jury instruction was not triggered because its used when there are separate or distinct multiple episodes, which the Court felt was not involved in the present case. The jury instruction was denied over objection of the defense. In its closing argument that Government told the jury that the case was about jealousy and that Jessica was seeing another man. T3, Transcript dated March 7, 2012, T3 at

10 The prosecutor argued, you can see and you heard from the evidence the Defendant is immensely larger than Jessica, but she was just trying to get him to leave her alone. At that point, the Defendant retaliated with all his six foot five inch or +250-pound power, he punched the nine--five-foot-nine, 120-pound Jessica in the face. At that point, I would submit he s finally unleashing all of the anger, the frustration, the jealousy, the rage that he had because she no longer wanted to be with him. T3 at 26. He went on to argue, you know, if it was just one point of fracture, if it was just one break, I think maybe you can say maybe it was a lucky punch. But two. Two power punches at least. Id. Their marriage was going down. Jessica no longer gave the defendant nature s smile, so he was going to make sure that she didn t get that smile to any other man, and she won t. She can t. T3 at The prosecutor then stated, he was going to teach her a lesson, a lesson that she would never, could never forget, a lesson she would remember every time she looked in a mirror. Look at Jessica s eyes. What do you see in those eyes? Resignation, defeat, a woman that s learned her lesson. We should teach her a new lesson. I say we teach her that there is justice in the world. I say we teach her that there can be justice in this--. T3 at 27. Defense counsel asserted an objection which was sustained by the trial court. Defense counsel then told the jury that they are an instrument of justice when they evaluate the facts, and that they should be that instrument of justice. T3 at 27. The deputy prosecutor then told the jury that if they find the defendant guilty of assault and first-degree, they do not have to go any further down the list. T3 at 28. In other words, you don t look at all the charges and say, oh, let me pick which and see which one is appropriate. The prosecutor next told the jury, consider that, you know, when Defendant broke Jessica s face, when you look at the way she testified, consider her demeanor, pictures of her after the scene. He broke something inside of her as well. T3 at 32. We all want Jessica spirit to heal even if her face won t but in order for that to happen there has to be justice done. Id. He asked the jury to consider, why there are no tears on Defendant s face when he is testifying. T3 at In his rebuttal closing argument, the deputy prosecutor started out by saying, you break my heart, I break your face. That s what this case is about. T3 at 48. Defense counsel entered an objection and media motion to strike which was granted by the trial court. The jury -7-

11 was told to disregard the last statement. The deputy prosecutor then went on to say, anyway, I defy anyone to show that two quick jabs are going to cause the kind of injuries that we saw in the evidence in this case. T3 at 49. Now, the defense says that the Defendant s testimony was more credible, that he had no duty to testify, but he did to tell you what happened. But I would submit that he had to. T3 at 50. Defense counsel entered an objection stating it was an improper comment. The objection was overruled and the trial court informed deputy prosecutor that he was using the word I, too much. Id. The Government attorney went on to argue, if it was a kick to his right testicle and he was bent over in excruciating pain, he would not have been able to hit anybody. I think that s part of, certainly for the guys here--. T3 at 53. Defense counsel entered an objection which was sustained and her motion to strike was granted. After receiving the case and going into deliberations, the jury returned a guilty verdict to the lesser included charge of assault in the second degree substantial bodily injury. T3 at The Defendant had a sentencing hearing on May 2, See transcript S dated 5/2/2012. A number of people came forward to testify on behalf of Sean Conroy. A former Maui County Police Officer Bonnie Burke testified to Conroy s good character. S at A person by the name of his Kat Johnson testified that she had known Sean for nine years and lived only two doors down from him. She stated, I have known Sean for nine years, and unlike all the other people here, I live two doors down from him. So I was privy to a lot of things, heard a lot of things, saw a lot of things that you and Sean doesn t know about. I would like to say that I was here during the trial. I listen to it. And the way that the district attorney presented the information and the lack of information that was not given to--excuse me, the jury was just really disconcerting for me. When you take someone who is his size and then you take a woman who is 5 foot 9, and they Saying she s 120 pounds, she s this little flower, she didn t do anything when, in fact she knows martial arts. I ve seen her attack him. I ve seen her abuse him. I ve seen all of it. And somehow that wasn t portrayed to the jury. I was just blown away. S at 30. She s a drug addict. She s an alcoholic. She s an abuser. It just shocked me, and I was so angry when none of this was brought up. It s not like this man all of a sudden one day just -8-

12 punched her. He was abused over and over and over and over again. And he called the police and they showed up and they laughed at him and said suck it up and be a man. The police wouldn t do anything. Battered man syndrome, the police wouldn t do anything. Absolutely blows my mind. S at 31. Kat Johnson testified that Conroy had a natural reaction in punching out at Hein, because she had hit him in his groin. S at The trial court stated in sentencing that it believed complainant had kicked Conroy in the groin, because that s the only way she could reach the top of his temple to hit him, because he was bent down. S But even though Conroy was hit first, the jury found that it wasn t enough to rise to the level of self-defense. S at 40. After considering all of sentencing factors, the trial court stated that defendant is particularly likely to respond to a program of restitution and a probationary sentence. S at 43. The trial court then sentenced Conroy to a period of five years probation, with a term of imprisonment of 60 days, and other terms and conditions. S at 44. The trial court granted the defense s motion to stay the sentence, and held that he was not a danger to the community or a flight risk. S at 46. II. POINTS OF ERROR ON APPEAL 1. The Government engaged in prosecutorial misconduct when improper arguments and insinuations were made to the jury during closing argument. The prosecutor made arguments that the jury could find Defendant guilty based upon an assessment of the plight of complainant. T3 at 26. The prosecutor argued, We should teach her a new lesson. I say we teach her that there is justice in the world. I say we teach her that there can be justice in this--. T3 at 27. Defense counsel asserted an objection which was sustained by the trial court. Defense counsel s objection was sustained. Id. In his rebuttal closing argument, the deputy prosecutor started out by saying, you break my heart, I break your face. That s what this case is about. T3 at 48. Defense counsel entered an objection and media motion to strike which was granted by the trial court. The Government attorney went on to argue, if it was a kick to his right testicle and he was bent over in excruciating pain, he would not have been able to hit anybody. I think that s part of, certainly for the guys here--. T3 at 53. Defense counsel entered an objection which was sustained and her motion to strike was granted. The entire closing argument contains a stream of characterizations offered to raise and inflame the passions of the jury, and not based upon the evidence adduced at trial. T3 at & T3 at It is submitted that such constitutes -9-

13 prosecutorial misconduct which is not harmless beyond a reasonable doubt. III. STANDARD OF REVIEW Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction. State v. Balisbisana, 83 Haw. 109, 114, 924 P.2d 1215, 1220 (1996. Factors to consider are: (1 the nature of the conduct; (2 the promptness of a curative instruction; and (3 the strength or weakness of the evidence against the defendant. State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378 (1992. (citations omitted. [applied to issue 1"] IV. LEGAL ARGUMENT A. IMPROPER LEGAL ARGUMENT CONSTITUTES PROSECUTORIAL MISCONDUCT AND REQUIRES THE CONVICTION TO BE VACATED The case law of Hawaii holds that a prosecutor may not engage in improper suggestions, insinuations and assertions of personal knowledge in closing argument. State v. Marsh, 68 Haw. 659, 728 P.2d Such improper argument gives the impression that such legal argument carries weight, when it should not. As stated in Marsh, when the pivotal issue involves the credibility of the witnesses, and the jury must decide whether to believe the complainant or the defendant, improper remarks from a prosecutor may influence the jury s decision in this critical choice. Id. 661, P.2d When the Court cannot conclude beyond a reasonable doubt that the remarks were harmless beyond a reasonable doubt, then the defendant is entitled to appellate relief. Factors to consider are: (1 the nature of the conduct; (2 the promptness of a curative instruction; and (3 the strength or weakness of the evidence against the defendant. State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378 (1992. When the prosecutor continually asserts argument that is not supported by the evidence, he is seeking to inflame the passions of the jury. The government attorney started his argument seeking to emphasize a claim of jealousy and rage in the relationship: Defendant is immensely larger than Jessica, but she was just trying to get him to leave her alone. At that point, the Defendant retaliated with all his six foot five inch of +250-pound power, he punched the [sic] nine--five-foot-nine, 120-pound -10-

14 Jessica in the face. At that point, I would submit he s finally unleashing all of the anger, the frustration, the jealousy, the rage that he had because she no longer wanted to be with him. T3 at 26. (Emphasis added. Yet the testimony by both parties was that while married, they lived as roommates. The actions that precipitated the domestic dispute were Hein s taking and using Conroy s personal possessions and their disagreement. Neither prosecutor or defense counsel asked Hein any questions about anger, frustration, jealousy, rage, other relationships or a boyfriend. Nor did the complainant Hein volunteer such testimony. Rather, Hein testified that Conroy assaulted her in the parking lot and the dispute had to do with a struggle over keys. T1 at 17 and T2 at Hein admitted that she struck Conroy first. T2 at 20. It is not clear if this is the premise upon which prosecutor argued that she was just trying to get him to leave her alone. Rather then basing his argument on evidence, the prosecutor sought to inflame the passions of the jury and suggest that defendant s actions all stemmed from a response to infidelity and a bad marriage relationship. There marriage was going down. T3 at 26. argued: The argument was then shifted to the extent of Hein s injury. The prosecutor Jessica no longer gave the defendant nature s smile, so he was going to make sure that she didn t give that smile to any other man, and she won t. She can t. T3 at There was no testimony that Conroy s actions stemmed from a jealousy, or that his intent was calculated, to inflict a permanent injury, if there even was a permanent injury. Dr. Don testified that the problem with Hein s smile was likely scarring to muscle that would subside, and might benefit from massage or physical therapy. T1 at There was no expert medical evidence that Hein would be unable to ever smile for another man, or had a permanent injury. The jury s rejection of 1st Degree Assault also supports a view that such evidence was lacking. The prosecutor then shifted his argument that Conroy was seeking to teach Hein a lesson that she would never forget. He told the jury: He was going to teach her a lesson, a lesson that she would never, could never forget, a lesson she would remember every time she looked in a mirror. Look at Jessica s eyes. What do you see in those eyes? Resignation, defeat, a woman that s learned her lesson. T3 at 27. The deputy prosecutor seeks to insinuate a purposeful intention on the part of the -11-

15 defendant to inflict injury, as part of a plan, that does not exist in the evidence put forth in the trial. The argument suggests she is a battered woman, suffering domestic abuse on a regular and continual basis, and there was more then a physical confrontation. There was no evidence from Hein s testimony (let alone Conroy, that would support any argument that this event was to have broader meaning in their relationship, or that Hein was resigned or defeated. Rather, the Government s argument is made to anger the jury and draw out their sympathies, which is improper argument. The prosecutor continued to argue that, We should teach her a new lesson. I say we teach her that there is justice in the world. I say we teach her that there can be justice in this--. T3 at 27. Defense counsel asserted an objection which was sustained by the trial court. The prosecutor next told the jury, consider that, you know, when Defendant broke Jessica s face, when you look at the way she testified, consider her demeanor, pictures of her after the scene. He broke something inside of her as well. T3 at 32. We all want Jessica spirit to heal even if her face won t but in order for that to happen there has to be justice done. Id. He asked the jury to consider, why there are no tears on Defendant s face when he is testifying. T3 at This argument seeks to convince the jury to base its decision on personal matters such as Jessica Hein s spirit, or the lack of tears when Conroy testifies. This is again a tactic seeking to inflame the passions of the jury. In the rebuttal closing argument, the prosecutor continued improper argument: You break my heart, I break your face. That s what this case is about. T3 at 48. Defense counsel entered an objection and made a motion to strike which was granted by the trial court. Id. The jury was told to disregard the last statement. The deputy prosecutor then went on to say, anyway, I defy anyone to show that two quick jabs are going to cause the kind of injuries that we saw in the evidence in this case. T3 at 49. Now, the defense says that the Defendant s testimony was more credible, that he had no duty to testify, but he did to tell you what happened. But I would submit that he had to. T3 at 50. Defense counsel entered an objection stating it was an improper comment. The objection was overruled and the trial court informed deputy prosecutor that he was using the word I, too much. Id. In fact the prosecutor used the word I some 15 time in legal argument. See T3 at The Government attorney went on to argue, if it was a kick to his right testicle -12-

16 and he was bent over in excruciating pain, he would not have been able to hit anybody. I think that s part of, certainly for the guys here--. T3 at 53. Defense counsel entered an objection which was sustained and her motion to strike was granted. There are numerous and continuous improper argument, focused on inflaming the passions of the jury. The Government attorney takes tremendous liberties in argument, and stating things that have no basis in the evidence put forth. The first prong of the standard is the nature of the conduct. It is submitted that the above synopsis shows repeated purposeful conduct where the government prosecutor seeks to inflame the passions of the jury in an improper manner. By inference and innuendo, the prosecutor seeks to suggest a concerted, calculated and planned effort on the part of defendant, when the record was devoid of such evidence. His argument is telling the jury to feel sorry for the scope of the injury to the complainant and convict Conroy on that basis. Such a tactic is improper. In considering the second prong, there were several objections by defense counsel which were sustained. However, these did not each involve a motion to strike, and the jury was only advised twice to disregard the improper argument. (See T3 at 48 and 53. There is a cumulative effect from repeated misconduct. In this regard, the jury was not given prompt curative instructions, and there is a real risk that the argument was not harmless beyond a reasonable doubt and influencing the jury s decision. The third prong evaluates the strength or weakness of the evidence against the defendant. The analysis of this issue should focus on the claim of self defense. It was Conroy s defense that he was kicked in the groin and punched in the head before he lashed out. There were multiple incidents where Hein attacked and injured Conroy in the past. She hit him with a TV remote control in his head and knocked out a tooth. T2 at Hein also kicked his hand and broke a finger in a prior incident. T2 at Hein admitted she struck Conroy first in this incident. The trial court stated in sentencing that it believed complainant had kicked Conroy in the groin, because that s the only way she could reach the top of his temple to hit him, because he was bent down. S A neighbor of Conroy s testified at the Sentencing Hearing that there were repeated problems with Hein s aggressive actions. Kat Johnson testified that she had known Sean for nine years and lived only two doors down from him. She stated, I have known Sean for nine years, and unlike all the other people here, I live two doors down from him. So I was privy to a lot of things, heard a lot of -13-

17 things, saw a lot of things that you and Sean doesn t know about. I would like to say that I was here during the trial. I listen to it. And the way that the district attorney presented the information and the lack of information that was not given to--excuse me, the jury was just really disconcerting for me. When you take someone who is this size and then you take a woman who is 5 foot 9, and they Saying she s 120 pounds, she s this little flower, she didn t do anything when, in fact she knows martial arts. I ve seen her attack him. I ve seen her abuse him. I ve seen all of it. And somehow that wasn t portrayed to the jury. I was just blown away. S at 30. She s a drug addict. She s an alcoholic. She s an abuser. It just shocked me, and I was so angry when none of this was brought up. It s not like this man all of a sudden one day just punched her. He was abused over and over and over and over again. And he called the police and they showed up and they laughed at him and said suck it up and be a man. The police wouldn t do anything. Battered man syndrome, the police wouldn t do anything. Absolutely blows my mind. S at 31. Kat Johnson testified that Conroy had a natural reaction in punching out at Hein, because she had hit him in his groin. S at The issue becomes whether Conroy had a justifiable apprehension of Hein s conduct, such that he responded in a manner which would constitute self defense. When evaluating prosecutorial misconduct, the Court must evaluate whether there was a proper consideration of the evidence, such that the jury could find that the Government disproved Defendant s claim of self defense, with all the improper arguments made by prosecutor. While a jury must always consider whether an accused s use of force exceeded a reasonable belief that such use of force was immediately necessary, such jury evaluation may have been clouded by the prosecutor s arguments aimed at passion, sentiment and prejudice. In applying the proper evaluation to a claim of prosecutorial misconduct, the Court must carefully evaluate any prejudice to defendant s right to a fair trial. Conroy submits that the nature of the prosecutorial conduct was extreme and offensive because the closing and rebuttal closing argument cited to prosecutorial strategy, it s (the prosecutor s actions, the allegation of other defendant improprieties; and the innuendo of complicity and bad conduct on behalf of the defendant. Such argument does not even stem remotely from the factual record and/or the prosecutor failed to develop any evidence to allow it to make such arguments. Even though defense counsel objected, the trial court overruled the some of the objections. Even the -14-

18 Marsh court recognized that a trial judge has the obligation in the interest of fairness and justice to stop a prosecutor from delivering a greatly prejudicial argument sua sponte. Id. at 661, P.2d 1303, citing to Viereck v. United States, 318 US 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943. Finally, given the inconsistencies of the government witnesses and the context of the chaotic nature of the event, the evidence was by no means clearly in favor of the Government. The use of the improper argument in closing and rebuttal closing argument sought to bolster the Government s position and inflame the passions and prejudice of the jury is improper. It is submitted that the Government s actions constitutes prosecutorial misconduct in violation of Conroy s right to a fair trial. V. CONCLUSION Defendant Appellant SEAN CONROY requests that this Court find error and vacate his conviction and remand the matter to the circuit court for a new trial. DATED: Wailuku, Maui, Hawaii, May 3, MATTHEW S. KOHM ATTORNEY FOR DEFENDANT SEAN CONROY -15-

19 CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII STATE OF HAWAII Plaintiff-Appellee, vs. SEAN CONROY, Defendant-Appellant. CR. NO (4 STATEMENT OF RELATED CASES STATEMENT OF RELATED CASES Defendant Appellant and Counsel are unaware of any related cases to this action. DATED: Wailuku, Maui, Hawaii, May 3, MATTHEW S. KOHM ATTORNEY FOR DEFENDANT-APPELLANT -16-

20 CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII STATE OF HAWAII Plaintiff-Appellee, vs. SEAN CONROY, Defendant-Appellant. CR. NO (4 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that the foregoing Opening Brief, was served via JEFS the Prosecutor s Office on today's date: RICHARD MINATOYA, DPA Office of Prosecuting Attorney 150 South High Street Wailuku, Maui, HI DATED: Wailuku, Maui, Hawaii, May 3, MATTHEW S. KOHM