State v. Dulan

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-NOV-2021
07:56 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JUSTIN DULAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Justin Dulan (Dulan) appeals from
the Judgment of Conviction and Probation Sentence (Judgment),
filed on July 19, 2018, by the Circuit Court of the First Circuit
(Circuit Court).1 The Judgment was entered following a jury
trial where Dulan was convicted of Promoting a Dangerous Drug in
the Third Degree in violation of Hawaii Revised Statutes (HRS) §
712-1243 (2014), and sentenced to a four-year term of probation
with a one-year term of imprisonment, subject to early release to
a residential treatment program.
On appeal, Dulan raises a single point of error
contending that the deputy prosecuting attorney (Prosecutor)
committed prosecutorial misconduct in his closing argument by
shifting the burden of proof to the defense.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to

1
The Honorable Fa#auuga To#oto#o presided.
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the arguments advanced and the issues raised by the parties, we
resolve Dulan's point of error, and affirm.
The pertinent background is as follows. On October 23,
2017, Plaintiff-Appellee State of Hawai#i (State) charged Dulan
by Felony Information with Promoting a Dangerous Drug in the
Third Degree in violation of HRS § 712-1243. During the jury
trial, Officer Ming Wang (Officer Wang) testified that he came
upon a car in the Hale#iwa area, and cited it as an abandoned
vehicle. When Officer Wang affixed the ticket to the front
windshield, he noticed a male, later identified as Dulan, in the
rear passenger side of the car. Officer Wang saw that the car
door was ajar, and Dulan's right hand was holding a glass
methamphetamine "ice" pipe. Officer Wang took photographs of
Dulan holding the ice pipe. These photographs were entered into
evidence at trial. After taking the photographs, Officer Wang
observed Dulan put the pipe to his mouth and inhale from it.
Officer Wang then opened the door and asked Dulan to hand over
the ice pipe. Officer Wang submitted the ice pipe to the
evidence locker at the Wahiawā station. The ice pipe was then
submitted for chemical testing, and dusted for fingerprints, but
no usable prints were found. Criminalist Michelle Shinsato
(Shinsato) testified as a qualified expert in the field of drug
analysis and identification and conducted testing confirming the
presence of methamphetamine in the ice pipe.
The jury found Dulan guilty. Dulan timely appealed.
Dulan contends that the State committed prosecutorial
misconduct in its rebuttal, and specifically argues that the
State shifted the burden of proof to Dulan and adversely
commented on Dulan's right not to testify. The State argues that
the Prosecutor's rebuttal was in response to Dulan's closing
argument, and the Prosecutor never commented on Dulan's decision
not to testify. Dulan's contention is without merit.
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.

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State v. Austin, 143 Hawai#i 18, 28, 422 P.3d 18, 28 (2018)
(quoting State v. Sawyer, 88 Hawai#i 325, 329 n.6, 966 P.2d 637,
641 n.6 (1998)) (internal quotation marks omitted).
Prosecutorial misconduct warrants a new trial or the
setting aside of a guilty verdict only where the actions of
the prosecutor have caused prejudice to the defendant's
right to a fair trial. In order to determine whether the
alleged prosecutorial misconduct reached the level of
reversible error, the appellate court considers the nature
of the alleged misconduct, the promptness or lack of a
curative instruction, and the strength or weakness of the
evidence against defendant.

State v. Conroy, 148 Hawai#i 194, 201, 468 P.3d 208, 215 (2020)
(internal quotation marks, brackets and citations omitted).
"As a rule, the prosecution cannot comment on the
defendant's failure to testify because this infringes on the
defendant's right not to be a witness against her- or himself."
State v. Wakisaka, 102 Hawai#i 504, 515, 78 P.3d 317, 328 (2003).
The prosecution's comment on a defendant's failure to testify
will be deemed misconduct if the comment "manifestly intended or
was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused
to testify." Id. (citations omitted).
However, a prosecutor is permitted to draw reasonable
inferences from the evidence during closing arguments, and wide
latitude is allowed in discussing the evidence. See State v.
Clark, 83 Hawai#i 289, 304-05, 926 P.2d 194, 209-10 (1996).
Furthermore, a prosecutor is given wide latitude during rebuttal
to respond to arguments raised by the defense in closing
arguments. See Austin, 143 Hawai#i at 47, 422 P.3d at 47.
First Statement
Dulan contends that the following rebuttal statement by
the Prosecutor shifted the burden to Dulan:
[PROSECUTOR]: Let's talk about things not making
sense. [Defense Counsel] kept saying this doesn't make
sense, that doesn't make sense, this doesn't make sense.
I'll tell you what doesn't make sense. If Officer Wang
wants to show up and lie and frame somebody, why are you
going to take pictures? Why? Why document any of this?
[DEFENSE COUNSEL]: Objection. Burden.

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THE COURT: Overruled.
[PROSECUTOR]: You heard him testify that this is not
HPD policy. He doesn't have to do this in any way, shape,
or form. He's not required to.
Why not just show up and give you folks a whole bunch
of mumbo jumbo and just leave it up to you as to whether
he's telling the truth or Mr. Dulan is telling the truth?
Why document it with photographs? Doesn't make any sense.
It's not something that a reasonable person would do.

Dulan objected to the statement and, at the bench, asked the
Circuit Court to re-instruct the jury on the burden of proof
based on the alleged improper comments:
[DEFENSE COUNSEL]: And, your honor, based on the
State's rebuttal I would argue that the State was burden
shifting. I would ask for a curative instruction in terms
of the court instructing the jury that it is not defense's
burden to explain why Officer Wang did what he did. It's
the State's burden –-

THE COURT: Mr. Prosecutor.
[DEFENSE COUNSEL]: -- to prove the case.

[PROSECUTOR]: I'm not sure what [Defense Counsel's]
argument is.

THE COURT: Okay. The court has instructed the jury
that the burden is on the State to prove this case beyond a
reasonable doubt and that's sufficient.

The record does not reflect that the Circuit Court gave an
additional curative instruction to the jury, but only noted that
the jury had already been instructed on the burden of proof which
was "sufficient."
Based on our review of the record, the Prosecutor's
comments about Officer Wang's actions directly responded to
Dulan's attacks on Officer Wang's credibility. Dulan's closing
argument stated and implied that Officer Wang was either lying
about the incident, or Officer Wang made up the evidence, and
lacked any credibility, as follows:
[DEFENSE COUNSEL]: . . . This is an officer that's
been on the force for 13 years and he's so shocked, with
his camera in hand, that he can't take a picture of a crime
actually happening. That is reason enough to doubt the
State's case. That's not believable. That doesn't make
sense that the officer would feel shock. He didn't take
any pictures of it because it didn't happen.

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(Emphases added). Defense counsel questioned why Officer Wang
took photographs of the ice pipe in Dulan's hand but failed to
take photographs of Dulan allegedly inhaling from it. Defense
counsel then argued:
[DEFENSE COUNSEL]: It's the State's burden to
present evidence to you. They chose not to. That's not my
fault. That's not [Dulan's] fault. That's reasonable doubt.
That is a reason to doubt. All you have is Officer Wang's
testimony. That is the State's case. Officer Wang is not
credible.
I didn't discredit Officer Wang. Officer Wang
discredited himself with his answers. For example, he
observed [Dulan] smoking the pipe without using a
lighter. Reason and common sense, ladies and
gentlemen. You can't smoke meth without a lighter.
Now why would he say -–

(Emphases added). Dulan made one final attempt to argue that
Officer Wang was untruthful:

[DEFENSE COUNSEL]: I understand being a police
officer is difficult. It's a stressful job. Okay. Life
is hard. That doesn't give Officer Wang an excuse to come
up here and twist the truth and say absurd things like
people smoke meth without lighters, that people hold onto
glass pipes and there's no fingerprints.

[PROSECUTOR]: Objection again, your honor.
THE COURT: Sustained.

(Emphasis added). The Prosecutor concluded his rebuttal with the
following:
[PROSECUTOR]: The State will submit to you that if
something doesn't make sense, it's the defense's argument
that if Officer Wang wants to make something up he's going
to take a slew of photographs to have presented before you,
and then he's going to stand up there and then he's going to
lie about it, or he's going to say things that contradict
what the photographs show. Thank you.

The Prosecutor's rebuttal statements were not improper;
the statements were not a personal opinion about the credibility
of Officer Wang, nor a comment on Dulan's right not to testify.
The statements were made in direct response to Dulan's attempt to
discredit and accuse Officer Wang of being untruthful, and did
not shift the burden of proof. See Austin, 143 Hawai#i at 47,
422 P.3d at 47 (holding that the prosecutor's rebuttal was not

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misconduct because the rebuttal was in response to the
defendant's closing arguments and within the wide latitude that
prosecutors have in their rebuttal to closing arguments); State
v. Mars, 116 Hawai#i 125, 142–43, 170 P.3d 861, 878–79 (App.
2007) (observing that the prosecutor may respond to closing
arguments raised by the defense).
Second Statement
Dulan also contends that the following rebuttal
statement shifted the burden of proof to Dulan because it implied
that Dulan was required to come up with a "better excuse":
[PROSECUTOR]: I'll tell you what is reasonable that
we learn at the earliest age when we're caught doing
something wrong: Wasn't me. I didn't have it. I didn't do
it. I don't know how it got there. That's the first thing
that we learn: It wasn't me. Oh, somebody saw me doing it?
Well, I don't know. Whatever it is, it wasn't me.
I'm laying in the car. My hand's in that position,
but that's -- I don't have any meth on me. I don't have a
pipe on me. It's the oldest excuse in the book.

This statement was in response to the following closing argument
by Dulan that he did not have possession of any ice pipe or
methamphetamine:
[DEFENSE COUNSEL]: So at the beginning I told you
that [Dulan] did not possess any methamphetamine, did not
possess any pipe to smoke methamphetamine, and did not
possess any other things that might be associated with
smoking methamphetamine, and because of that he was not in
possession of meth in any amount and therefore he was not
guilty.

(Emphasis added).
[DEFENSE COUNSEL]: Also we're still -- going back to
the photographs. Officer Wang never took any photographs of
this pipe at the location. The only photograph of this pipe
is some undisclosed time later at the police station. Why
didn't Officer Wang take a picture of the pipe on the scene?
He took other pictures of the car which you're going to have
in evidence. Well, he didn't do that because there was no
pipe.

(Emphasis added).

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[DEFENSE COUNSEL]: If [Dulan] was in possession of
this, was smoking this, where are -- where's the other
paraphernalia, where's the other stuff associated with it?
Why didn't Officer Wang find that? Well, he didn't find
that because [Dulan] was never in possession of any pipe.

(Emphasis added).
At trial, Officer Wang testified that he saw Dulan with
the ice pipe in his right hand; the jury saw photographs of Dulan
holding the pipe; and Shinsato testified that the ice pipe tested
positive for methamphetamine. The record does not indicate that
the Prosecutor commented on Dulan's right not to testify, nor do
the statements shift the burden of proof. The Prosecutor's
rebuttal statements were responsive to Dulan's closing arguments
— that Dulan did not have possession of the pipe and
methamphetamine — and were drawn from inferences based on the
evidence adduced at trial. See Austin, 143 Hawai#i at 47, 422
P.3d at 47; Mars, 116 Hawai#i at 142–43, 170 P.3d at 878–79. The
Prosecutor's rebuttal did not constitute prosecutorial
misconduct. See Austin, 143 Hawai#i at 47, 422 P.3d at 47; State
v. Mattson, 122 Hawai#i 312, 345, 226 P.3d 482, 515 (2010)
(noting that under Hawai#i law, the prosecution is permitted to
discuss the evidence and inferences from the evidence so long as
it does not infringe on the defendant's constitutional rights).
Therefore, IT IS HEREBY ORDERED that the Judgment of
Conviction and Probation Sentence, filed on July 19, 2018, by the
Circuit Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawaii, November 16, 2021.
On the briefs:
/s/ Katherine G. Leonard
Loren J. Thomas Presiding Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee /s/ Keith K. Hiraoka
Associate Judge
Jon N. Ikenaga
for Defendant-Appellant /s/ Karen T. Nakasone
Associate Judge

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