State v. Hauge11/18/2003
ent based on evidence adduced at trial . . . [and that, d]uring the closing argument, the trial court asked counsel to approach, on five occasions, and admonished counsel at the bench not to misstate evidence or mislead the jury.
Conceding that the circuit court misspoke in correcting the DPD, the prosecution argues that the error was "only to a minimum degree" and that "the trial judge's remarks were harmless beyond a reasonable doubt," inasmuch as the court "'maintain an attitude of fairness and impartiality" notwithstanding [the defense] counsel's repeated disregard of the judge's admonitions." (citing State v. Pokini, 55 Haw. 640, 663, 526 P.2d 94, 113 (1974); accord State v. Nomura, 79 Hawaii 413, 414, 903 P.2d 718, 719 (App. 1995)). Lastly, the prosecution argues that the circuit court "made a single misstatement . . . [that] did not have the effect of demeaning counsel or his client, even if the judge could have found counsel's conduct improper or even annoying."
The prosecution wrongly interprets HRE Rule 1102 as allowing trial courts to comment on the evidence, so long as the commentary does not occur in the course of instructing the jury. Indeed, the plain language of HRE Rule 1102, which is entitled, "Jury instructions; comment on evidence prohibited," establishes that the prohibition against judicial comment on the evidence is not limited to jury instructions. See HRE Rule 1102, supra note 9 (emphasis added). In that connection, the Commentary on Rule 1102 unequivocally states that " he present rule precludes 'comment on upon the evidence' in all cases," without limitation. Commentary on HRE Rule 1102 (emphasis added). Therefore, HRE Rule 1102 does, indeed, apply to the circuit court's interjected comment in the present matter.
Nevertheless, the circuit court's instructions to the jury cured the impropriety, such that the court's comment on the evidence was not prejudicial to Hauge. In particular, the circuit court instructed the jury, inter alia, as follows:
You must disregard any remark I may have made unless the remark was an instruction to you. If I have said or done anything which has suggested to you that I am inclined to favor the claims or positions of any party or if any expression or statement of mine has seem to indicate an opinion relating to which witnesses are or are not worthy of belief, or what facts are or are not established, or what inferences should be drawn therefrom, I instruct you to disregard it.
(Emphases added.)
This court has repeatedly adhered to the construct that the "jury is presumed to have followed the [circuit] court's instructions." Cordeiro, 99 Hawaii at 413, 56 P.3d at 715 (quoting State v. Balanza, 93 Hawaii 279, 289, 1 P.3d 281, 291 (2000) (brackets in original); see also State v. Culkin, 97 Hawaii 206, 228 n.23, 35 P.3d 233, 255 n.23 (2001); State v. Haanio, 94 Hawaii 405, 415, 16 P.3d 246, 256 (2002); State v. Webster, 94 Hawaii 241, 248-49, 11 P.3d 466, 473-74 (2000); State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000) (quoting State v. Knight, 80 Hawaii 318, 327, 909 P.2d 1133, 1142 (1996)). Thus, notwithstanding the impropriety of the circuit court's comment on the evidence, the jury instruction cured any prejudice against Hauge.
We therefore hold that the circuit court's improper comment on the evidence did not amount to reversible error or grounds for a new trial, inasmuch as the court's jury instruction was sufficiently curative.
D. HRS §§ 706-662(1) Is Not Unconstitutional
Hauge argues that HRS §§ 706-662(1), part of Hawaii's extended term sentencing statute, is unconstitutional in light of the United States Supreme Court's dec
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