The opinion
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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2025
08:06 AM
Dkt. 112 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
STEPHEN BROWN, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and Guidry, JJ.)
Defendant-Appellant Stephen Brown (Brown) appeals from
the following judgment and orders entered by the Circuit Court of
the First Circuit1/ (Circuit Court): (1) the December 6, 2023
Judgment of Conviction and Sentence; (2) the December 12, 2023
Order of Restitution; (3) the December 12, 2023 Order Granting
State's Motion for Extended Term Sentencing; and (4) the December
18, 2023 Findings of Fact, Conclusions of Law, and Order Granting
State's Amended Motion for Consecutive Term Sentencing.
Following a jury trial, Brown was convicted of Murder in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§§ 707-701.5 and 706-656 (Count 1); Kidnapping, in violation of
HRS §§ 707-720(1)(c) and/or 707-720(1)(e) (Counts 22/ and 3);
Burglary in the First Degree, in violation of HRS § 708-810(1)(c)
(Count 4); and Criminal Property Damage in the Fourth Degree, in
1/
The Honorable Rowena A. Somerville presided.
2/
On December 6, 2021, the Circuit Court ruled that Counts 1 and 2
merged, based on the jury's findings as to Question 1 of Special Interrogatory
No. 2.
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violation of HRS § 708-823(1) (Count 7). As relevant to this
appeal, Brown was sentenced as follows: "an indeterminate term
of life imprisonment with the possibility of parole in Count 1,
to be served consecutively with Count 3 for twenty (20) years, to
be served consecutively with Count 4 for an extended term of
twenty (20) years, and consecutively with Count 7 for thirty (30)
days with credit for any time served." (Formatting altered.)
On appeal, Brown contends that: (1) "[t]he [C]ircuit
[C]ourt erred in precluding the defense from presenting Dr.
Martin Blinder (Dr. Blinder) as an expert witness"; (2) "[t]he
[C]ircuit [C]ourt abused its discretion in denying Brown's motion
to continue to allow Dr. Blinder to complete his report and to
address whether an extreme mental or emotional disturbance
defense was applicable"; (3) "[t]he [C]ircuit [C]ourt erred in
failing to resolve the jury's inconsistent findings in the
extended term hearing and denying Brown's motion for a new
trial"; (4) "[t]he prosecutor committed misconduct during his
closing argument that deprived Brown of his right to a fair
trial"; and (5) "[t]he prosecutor committed misconduct during his
closing argument in the extended term sentencing hearing that
deprived Brown of his right to a fair trial."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Brown's contentions as follows, and affirm.
(1) Brown contends that the Circuit Court erred in
precluding the defense's proposed testimony of Dr. Blinder.
"Generally, the decision whether to admit expert testimony rests
in the discretion of the trial court. To the extent that the
trial court's decision is dependant upon interpretation of court
rules, . . . such interpretation is a question of law, which [the
appellate] court reviews de novo." Barcai v. Betwee, 98 Hawai#i
470, 479, 50 P.3d 946, 955 (2002) (citations omitted).
Hawai#i Rules of Evidence (HRE) Rule 702 governs the
admission of expert testimony. It states:
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If scientific, technical, or specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise. In
determining the issue of assistance to the trier of fact,
the court may consider the trustworthiness and validity of
the scientific technique or mode of analysis employed by the
proffered expert.
In State v. Fukusaku, 85 Hawai#i 462, 946 P.2d 32
(1997), the Hawai#i Supreme Court, construing HRE Rule 702,
established that "expert testimony must be (1) relevant and (2)
reliable." Id. at 473, 946 P.2d at 43 (citing State v. Samonte,
83 Hawai#i 507, 533, 928 P.2d 1, 27 (1996); State v. Maelega, 80
Hawai#i 172, 181, 907 P.2d 758, 767 (1995)). The court
reiterated:
The critical inquiry with respect to expert testimony is
whether such testimony 'will assist the trier of fact to
understand the evidence or determine a fact in issue .'"
HRE Rule 702. Generally, in order to so assist the jury an
expert must base his or her testimony upon a sound factual
foundation; any inferences or opinions must be the product
of an explicable and reliable system of analysis ; and such
opinions must add to the common understanding of the jury."
See HRE Rule 703.
Id. (ellipsis and brackets omitted) (quoting Maelega, 80 Hawai#i
at 181, 907 P.2d at 767).
Brown first contends that the Circuit Court erred in
precluding Dr. Blinder's proposed testimony "to explain the
nature of Brown and [Defendant-Appellee Hailey Dandurand
(Dandurand)]'s relationship . . . ." He argues that "Dr. Blinder
would have supported the defense theory that Dandurand was the
one in control in their relationship and made all the decisions,
including causing the death of [Thelma] Boinville on her own."
The record, however, does not establish that Dr.
Blinder's proposed testimony regarding the relationship between
Brown and Dandurand was "the product of an explicable and
reliable system of analysis." Fukusaku, 85 Hawai#i at 473, 946
P.2d at 43 (emphasis omitted). The Circuit Court addressed this
deficiency, as well as other issues regarding Dr. Blinder's
proposed testimony, in the court's December 28, 2022 order
limiting his testimony (Order Limiting Dr. Blinder's Testimony).
The Circuit Court found, and Brown does not dispute, that Dr.
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Blinder's opinion regarding the relationship dynamic between
Brown and Dandurand was based entirely on (a) his two psychiatric
examinations of Brown, with Dr. Blinder "rel[ying] solely on
. . . Brown's self-reporting and version of the incident[,]" and
(b) Dr. Blinder's review of three letters written by the court-
appointed examiners of Dandurand.3/ Dr. Blinder was not privy to
Dandurand's medical records and did not examine her.
On this record, the Circuit Court did not err in
concluding that "Dr. Blinder cannot, under the guise of expert
testimony, testify as a hearsay conduit to present otherwise
inadmissible hearsay to the jury." See State v. Davis, 53 Haw.
582, 589-590, 499 P.2d 663, 669 (1972). Further, on this record,
the Circuit Court did not err in concluding that "Dr. Blinder is
precluded from testifying about [Brown]'s out-of-court,
self-serving version of the facts, as there is nothing to
guarantee the reliability of the statements, and they are
inadmissible hearsay." In these circumstances, the Circuit Court
did not err or otherwise abuse its discretion in precluding Dr.
Blinder's proposed testimony regarding the relationship between
Brown and Dandurand.
Brown next contends that the Circuit Court erred in
precluding Dr. Blinder's proposed testimony that "Brown did not
have a predilection for mutilation and murder unlike Dandurand
who . . . may be regarded as a sociopath." The source of this
proposed testimony appears to be a December 23, 2022 two-page
letter from Dr. Blinder to Brown's counsel, in which Dr. Blinder
also stated that he saw "little clinical support for a
conventional mental defense." There is no indication in the
letter (or in Brown's opening brief) as to the basis for Dr.
Blinder's opinion regarding Brown's lacking "predilection" for
murder and Dandurand's alleged sociopathy. The Circuit Court
concluded that Dr. Blinder's proposed testimony, among other
things, was not reliable and sought to present inadmissible
hearsay to the jury, and amounted to inadmissible testimony about
3/
Unchallenged findings of fact are binding on appeal. State v.
Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019).
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Brown's credibility. On this record, particularly given the
absence of any stated basis for Dr. Blinder's opinion, we cannot
say that the Circuit Court erred or otherwise abused its
discretion in precluding his proposed conclusory testimony
comparing Brown and Dandurand's relative "predilections."
(2) Brown contends that the Circuit Court erred in
denying his motion for a trial continuance in order to allow Dr.
Blinder to complete his report. Brown argues that "[his] defense
was severely prejudiced because [he] did not have adequate time
to prepare, as . . . Dr. Blinder[] informed defense counsel and
the circuit court in his supplemental two-page letter that his
evaluation, especially to the questions that defense counsel had
requested him to explore and evaluate, was a 'work in progress.'"
"A motion for continuance is addressed to the sound
discretion of the trial court, and the court's ruling will not be
disturbed on appeal absent a showing of abuse of that
discretion." State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279,
1281 (1993) (citing State v. Gager, 45 Haw. 478, 488, 370 P.2d
739, 745 (1962)). In evaluating whether a motion for continuance
should have been granted, the relevant factors are: "(1) whether
counsel below exercised due diligence in seeking to obtain the
[evidence or] witness; and (2) whether the [evidence or] witness
provides relevant and material testimony that benefits the
defendant." State v. Williander, 142 Hawai#i 155, 163-64, 415
P.3d 897, 905-06 (2018); see also State v. Villiarimo, 132
Hawai#i 209, 223, 320 P.3d 874, 888 (2014) (Nakayama, J.,
concurring) (explaining that the Hawai#i Supreme Court has used
due diligence and materiality factors to determine whether the
trial court abused its discretion in denying a motion to continue
to obtain testimony of a witness).
As to the first Williander factor, the Order Limiting
Dr. Blinder's Testimony sets forth the relevant procedural
history, including the following: (1) on January 11, 2022, the
court appointed Brown's trial counsel; (2) the court subsequently
granted Brown's multiple requests for continuances; (3) on
September 26, 2022, the court approved litigation expenses for
Dr. Blinder; (4) on December 7, 2022, following Brown's request
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for a fourth trial continuance, the court ordered that Dr.
Blinder complete his report by December 14, 2022, and later
extended the deadline, at Brown's request, to December 16, 2022;
(5) on December 21, 2022, (a) defense counsel sent an email to
the court indicating that Dr. Blinder had not completed his final
report and it was "still a work in progress," (b) during a later
telephone status conference, the court ordered Dr. Blinder to
provide the full report by December 23, 2022, (c) shortly after
the status conference, defense counsel forwarded Dr. Blinder's
December 15, 2022 report to the court, and (d) after receiving
and reviewing the report, the court indicated that it considered
the report final; (6) on December 23, 2022, Brown's counsel
informed the parties via email that he had received a two-page
letter from Dr. Blinder "explaining, among other things, that his
evaluation 'is very much a work in progress'"; and (7) on
December 27, 2022, a week before the scheduled start of trial,
Brown filed a motion to continue the trial. None of this history
is disputed. See Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435.
Brown's motion to continue was based on Dr. Blinder's
December 23, 2022 letter describing his report as a "work in
progress," and defense counsel's further statement that, "[w]hile
Dr. Blinder has answered some of counsel's questions, he also
appears to have neglected to address all issues such as whether
there is a[n] Extreme Mental or Emotional Disturbance Defense."4/
Brown failed to show, however, what efforts he made, i.e., that
he exercised due diligence, in seeking to obtain Dr. Blinder's
final report, such that he could testify at trial.
As to the second Williander factor, Brown appears to
have made no proffer as to the relevance and materiality of any
anticipated later opinion or proposed testimony of Dr. Blinder.
Indeed, on December 20, 2022, defense counsel informed the State
via email that he did not expect to call Dr. Blinder "to support
4/
In fact, Dr. Blinder's December 23, 2022 letter stated in relevant
part: "I see little clinical support for a conventional mental defense. Of
course this could all change right up to the day of trial as I continue to
work on and think about the complexity in this matter. I have already changed
my mind twice and might do so again."
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a mental defense, 'diminished capacity', or extreme mental or
emotional disturbance defense." Moreover, at Brown's extended
term sentencing hearing, Dr. Blinder definitively testified that
he "concluded that there was no mental defense." On this record,
Brown has failed to show the relevance and materiality of any
anticipated later opinion or proposed testimony of Dr. Blinder.
Without a proffer as to the efforts made by Brown to
obtain Dr. Blinder's final report and the materiality of Dr.
Blinder's anticipated testimony, we cannot say the Circuit Court
abused its discretion in denying Brown's motion to continue the
trial.
(3) Brown contends that "[a] new trial on the extended
term sentencing should have been granted 'in the interest of
justice,' . . . as the jury's verdicts/findings clearly reflected
a 'misunderstanding of the charge of the court on the part of the
jury.'" In particular, Brown argues that "the jury's findings on
whether the prosecution proved beyond a reasonable doubt that it
was necessary for the protection of the public to extend Brown's
sentences were inconsistent."
The Hawai#i Supreme Court has made clear that "courts
should attempt to first reconcile seemingly-inconsistent verdicts
before vacatur." State v. Perry, 153 Hawai#i 185, 189, 528 P.3d
524, 528 (2023) (quoting State v. Bringas, 149 Hawai#i 435, 443,
494 P.3d 1168, 1176 (2021)).
[I]f there's 'a reasonable way to reconcile' a jury's
findings, then a conviction stands. Bringas, 149 Hawai #i at
443, 494 P.3d at 1176 (explaining "the requirement that an
appellate court search for any reasonable way to reconcile a
jury's verdicts serves to avoid speculation into the jury's
confidential deliberations and to safeguard the result of
those deliberations, if at all possible.")
Id. (original brackets omitted); see Bringas, 149 Hawai#i at 442,
494 P.3d at 1175 ("[T]he court must first 'search for a
reasonable way to read the verdicts as expressing a coherent view
of the case, and must exhaust this effort' before it vacates the
jury's verdict and remands the case for a new trial." (quoting
Carr v. Strode, 79 Hawai#i 475, 489, 904 P.2d 489, 503 (1995))).
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At the extended term sentencing hearing, the jury found
that the State had proved beyond a reasonable doubt that Brown
was a multiple offender in that he was being sentenced for two or
more felonies. As to whether the State had proved beyond a
reasonable doubt that it was necessary for the protection of the
public to extend Brown's sentences, the jury answered "yes" with
respect to Counts 1, 2, and 4, and "no" with respect to Count 3.
Count 3 was the offense of kidnapping the minor child (MBE).
Based on these findings, on February 3, 2023, Brown
filed a motion for directed decision regarding extended term
sentencing, or motion for new trial (Motion for New Trial).
Following briefing and a hearing, the Circuit Court denied the
motion. The court's April 5, 2023 "Findings of Fact, Conclusions
of Law, and Order Denying [Brown's Motion for New Trial]"
explained the court's reasoning in part as follows:
CONCLUSIONS OF LAW
. . . .
. . . .
12. There are reasonable ways to read the jury's findings
as expressing a coherent view of the case. The jury's
findings as to each count reflect a careful and
independent consideration as to the need of an
extended term of imprisonment for the protection of
the public as to that count.
13. There is nothing irreconcilable about the jury's
factual findings. Without question, there was an
evidentiary basis for the jury to make a 'necessary
for the protection of the public' finding as to counts
1, 2, and 4. There is also a factual basis for the
jury to decline to make the same finding as to count
3.
14. The same facts do not apply to each count. The
absence of physical injury to [MBE], coupled with
defense counsel's emphasis on this point, provide a
factual explanation for why the jury found as it did.
There is nothing irreconcilable about this finding
that demands a new extended term sentencing hearing.
During the March 1, 2023 hearing of the motion, the court further
observed that "[the jury] obviously found, and as [defense
counsel] himself argued, that . . . Brown did not physically harm
[MBE] in the way that Ms. Boinville was harmed."
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We conclude that the Circuit Court's analysis is a
"reasonable way to read the [jury's findings] as expressing a
coherent view of the case" and the extended term sentencing
proceeding. Bringas, 149 Hawai#i at 442, 494 P.3d at 1175
(quoting Carr, 79 Hawai#i at 489, 904 P.2d at 503). The Circuit
Court did not abuse its discretion in denying the Motion for New
Trial.
(4) Brown contends that the deputy prosecuting attorney
(DPA) committed misconduct when he "offered his personal opinion
as to MBE's credibility during his closing argument[.]"
Specifically, Brown challenges the following statements made by
the DPA:
First, the defendant admitted to [MBE] that he and
Hailey Dandurand killed her mother. [MBE] testified last
week that when the boy with the green hair scooped her out
of the back of the car, he told her, "We killed your mom."
In evaluating [MBE]'s testimony, consider her age and
experience, her candor and appearance on the witness stand,
the manner she was able to answer the questions, the
vocabulary that she used, and an objective assessment of her
leads you to the only conclusion; that she is credible.
How do you know? During the investigation of this
case she told her father that it was a boy with green hair
and a girl with pink hair who were responsible. Eventually
her father [KE] received this social media post on his cell
phone which he in turn showed to [MBE]. She was asked
during her examination last week, "How sure are you that the
boy and girl in that picture are the same boy and girl who
tied you up?" "One hundred percent" was her answer.
The reason why it was one hundred percent is because
she is the only one who has firsthand knowledge of what
happened to her. And she testified credibly based on her
age, her experience, the manner in which she presented
herself, her candor, her vocabulary she used.
Although Brown did not object during trial to any of
these statements, in prosecutorial misconduct cases, "there is no
difference between the plain error and harmless beyond a
reasonable doubt standards of review." State v. Hirata, 152
Hawai#i 27, 31, 520 P.3d 225, 229 (2022) (citing State v.
Riveira, 149 Hawai#i 427, 431 n.10, 494 P.3d 1160, 1164 n.10
(2021)). "[O]nce the defense establishes misconduct - objection
or no objection - appellate review is the same: 'After
considering the nature of the prosecuting attorney's conduct,
promptness or lack of a curative instruction, and strength or
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weakness of the evidence against the defendant, a reviewing court
will vacate a conviction if there is a reasonable possibility
that the conduct might have affected the trial's outcome.'" Id.
(quoting Riveira, 149 Hawai#i at 431, 494 P.3d at 1164).
We conclude that the challenged statements by the DPA
did not constitute prosecutorial misconduct. Viewed in context,
the DPA's remarks did not express a personal opinion about MBE's
credibility. Rather, the DPA explained the factors that the jury
may consider when evaluating a witness's credibility and cited
specific evidence relevant to one or more of those factors that
supported the DPA's assertion about MBE's credibility. Brown's
contention is without merit.
(5) Brown contends that the DPA committed prosecutorial
misconduct during the extended term sentencing hearing by
referring to the jury as "the voice of the public" and "the voice
of the community[.]" Specifically, Brown challenges the
underlined portions of the following two statements made by the
DPA during his closing argument:
Statement 1
So what is this proceeding all about? It is for you,
as the voice of the public, to make this decision. Is it
necessary for the protection of the public to extend
defendant Stephen Brown's sentence in Count 1 from a
possible life sentence to a definite life sentence of
imprisonment? That's what this proceeding is all about.
Statement 2
On more than one occasion Dr. Blinder said that he
didn't have a crystal ball and could not, with complete
assurance, opine whether Mr. Brown will ever reoffend.
That's true. No one has that crystal ball. But you are
empowered to make a decision today that will ensure the
protection of the public. And that's your responsibility.
The prosecution calls upon you to reject Dr. Blinder's
paradox, regardless of how enticing it may seem. He said
that the paradox is that statistics of which he is aware
confirm that people who commit the most grievous crimes are
unlikely to reoffend, while those who commit rather
low-level crimes, such as the shoplifting example that he
gave, are much more likely to reoffend. You need not accept
this paradox as the reason for your decision. Yours is the
voice of the community in this case.
(Emphases added.)
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Although Brown did not object to the first statement,
he did object to the underlined portion of the second statement
during the hearing. The Circuit Court sustained the objection
and instructed the jury to "disregard the prosecutor's last
statement. You are not to consider it in your deliberations."
The Circuit Court later denied Brown's Motion for a New Trial
based on the "voice of the community" statement, ruling that the
jury is presumed to have followed the court's instruction to
disregard it, after which "the State never returned to this line
of argument."
Relying on State v. Apilando, 79 Hawai#i 128, 900 P.2d
135 (1995), Brown argues that the DPA's references to "the voice
of the public" and "the voice of the community" "diverted the
jury from its duty to decide the case on the evidence, by
injecting issues broader than determining whether an extended
term was appropriate." (Brackets omitted.) In Apilando, the
prosecutor asked the jury to "send a message to the defendant
that his actions were wrong, they're not to be tolerated by this
community. You have an authority to do that, ladies and
gentlemen, and I'm asking you to find him guilty." Id. at 142,
900 P.2d 149 (brackets omitted.) The supreme court held that
"the prosecutor's plea that the jury send a message to the
defendant that his conduct would not be tolerated by the
community was improper." Id. The court stated that "[i]t is
true that the jury represents the community," but as to the
improper "plea," there was "a significant risk that the jury
might find the defendant guilty simply based on its view that the
conduct the defendant is accused of committing is intolerable,
even though it has not been proved beyond a reasonable doubt or
otherwise fails to support a conviction of the charged offense."
Id.
In contrast, here, the DPA did not urge the jury to
"send a message" to Brown or to determine the relevant sentencing
issues without regard to the evidence or the State's burden of
proof. In the first challenged statement, the DPA sought to
explain "what . . . this proceeding [is] all about" and to focus
the jury on the issue of whether an extended sentence on Count 1
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was "necessary for the protection of the public." The second
challenged statement followed the DPA's detailed assessment of
Dr. Blinder's testimony, including on whether Brown was likely to
re-offend, in relation to whether "an extended term is necessary
for the protection of the public." The DPA reminded the jury
that "Dr. Blinder said that he didn't have a crystal ball and
could not, with complete assurance, opine whether Mr. Brown will
ever reoffend." The DPA continued: "No one has a crystal ball.
But you are empowered to make a decision today that will ensure
the protection of the public." It was in this context that the
DPA urged the jury, as "the voice of the community," to reject
Dr. Blinder's recidivism "paradox." It was an argument urging a
common-sense view of evidence that a juror could consider
speculative.
In any event, we conclude there is no reasonable
possibility that the "voice of the community" statement might
have affected the outcome of the hearing. See Hirata, 152
Hawai#i at 33, 520 P.3d at 231 (quoting Riveira, 149 Hawai#i at
431, 494 P.3d at 1164). First, as discussed above, the statement
did not ask the jury to determine the relevant sentencing issues
without regard to the evidence or the State's burden of proof.
Additionally, after Brown's objection was sustained, the State
did not return to the "voice of the community" language. Second,
the Circuit Court gave a prompt curative instruction telling the
jury to disregard the remark and not to consider it in
deliberations. The jury is presumed to have followed this
instruction. See State v. Acker, 133 Hawai#i 253, 278, 327 P.3d
931, 956 (2014). Third, having reviewed the entire record, we
conclude that strong evidence supported the jury's findings
regarding extended term sentencing, i.e., (1) Brown was a
multiple offender in that he was being sentenced for two or more
felonies, and (2) it was necessary for the protection of the
public to extend Brown's sentences as to Counts 1, 2, and 4.
Brown's final contention is therefore without merit.
For the reasons discussed above, we affirm the
following, entered by the Circuit Court of the First Circuit:
(1) the December 6, 2023 Judgment of Conviction and Sentence; (2)
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the December 12, 2023 Order of Restitution; (3) the December 12,
2023 Order Granting State's Motion for Extended Term Sentencing;
and (4) the December 18, 2023 Findings of Fact, Conclusions of
Law, and Order Granting State's Amended Motion for Consecutive
Term Sentencing.
DATED: Honolulu, Hawai#i, April 30, 2025.
On the briefs:
/s/ Katherine G. Leonard
James S. Tabe Acting Chief Judge
for Defendant-Appellant.
Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Kimberly T. Guidry
Associate Judge
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