State v. Palisbo

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NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

NO. 29133
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee, v.
LORNE A. PALISBO, Defendant-Appellant

OSL WY 02 Bal 0102

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR... NO. 07-1-0987)

MEMORANDUM OPINION
Presiding Judge, Leonard and Reifurth, JJ.)

Defendant-Appellant Lorne A. Palisbo

from the Judgment of Conviction and Sentence
on April 7, 2008,

(By: Foley,

(Palisbo) appeals

(judgment), entered
im the Circuit Court of the First. Circuit

(Circuit court). Atter a: jury trial,

Palisbo was convicted of
(1) Unauthorized Possession of Confidential Personal Information,

(2) Forgery in the Second Degree, (3) Credit Card Theft, and (4)
Identity Theft in the Third Degree.

On appeal, Palisbo asserts that the circuit court
reversibly erred by admitting "irrelevant and prejudicial
evidence," "failing to give a timely and adequate limiting
instruction" on the prejudicial evidence,

and by "failing to
excuse two jurors for cause."

As explained below, we affirm the
circuit ‘court's judgment .-

I. BACKGROUND
A. The Incident

On May 18, 2007 Palisbo and an unidentified female
companion entered the Codi Club, a Waikiki clothing accessories
store, and attempted to purchase $175.85 worth of merchandise.
When asked for payment,

Palisbo took a credit card from his back

pocket and gave it to the companion who handed it to the store
clerk. The clerk noted that the credit card was issued to Renee
Nakama (Nakama), so she asked Palisbo and his companion for

identification to determine the credit card's owner. Neither

1/

The Honorable Richard W. Pollack presided.

qaud
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Palisbo, nor his companion responded to the request. After the
clerk's third request, Palisbo and his companion simultaneously
stated "that's mine." The companion explained that her
identification was "in the car," while Palisbo said that the
credit card belonged to his ex-wife, whom he could call at
anytime. When asked, Palisbo was unable to recite his ex-wife's
last name.

The clerk and her supervisor processed the transaction
to see if the signature on the credit card and the signature on
the receipt would match. After the credit card was accepted
electronically and a receipt printed, Palisbo signed the receipt
on the signature line above Nakama's name.

Palisbo's signature did not match the signature on the
back of the credit card. The clerk voided the sale and told
Palisbo that she could not return the credit card to him.
Palisbo responded that he "wanted his card back." The clerk
explained that, unless Palisbo produced identification which
confirmed that the credit card was his, she could not give the
credit card back to him. The clerk asked Palisbo to leave the

store and called the police.

B. Detention, Investigation and Arrest

Honolulu Police Officer Brian McDowell (Officer
McDowell) responded to the call and spoke with the clerk, who
identified Palisbo as the person who attempted to use Nakama's
credit card. Officer McDowell approached and detained Palisbo,
then contacted Nakama by phone and requested that she meet with
him at the Codi Club store.

Nakama identified the credit card as hers, and
explained that her car had been broken into earlier in the day
and that the card had been taken from her car at that time.2/
Nakama said that she had never met Palisbo, nor given him
permission to use her credit card. Officer McDowell then

arrested Palisbo for Unauthorized Possession of Confidential

2/ Earlier that day, Nakama had filed an Unauthorized Entry into a
Motor Vehicle (UEMV) report with the Honolulu Police Department (HPD),
contending that her car had been broken into and that some personal items had
been taken.
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Personnel Information (for having Nakama's credit card on his
person), Fraudulent Use of a Credit Card, and Forgery in the
Second Degree (for signing the credit card receipt).

On May 24, 2007 Palisbo was charged by Complaint with
Unauthorized Possession of Confidential Personal Information, in
violation of Hawaii Revised Statutes (HRS) § 708-839.55 (Supp.
2009) (Count I); Forgery in the Second Degree, in violation of
HRS § 708-852 (Supp. 2009) (Count II); Credit Card Theft, in
violation of HRS § 708-8102(1) (1993) (Count III); and Identity
Theft in the Third Degree, in violation of HRS § 708-839.8 (Supp.
2009) (Count IV). °

Cc. Pre-trial Motion

On October 16, 2007 Palisbo's attorney filed a motion
in limine requesting, inter alia, "an Order excluding and
precluding from use at trial evidence relating to any and all
facts or circumstances regarding the uncharged UEMV complaint
made by Complainant Renee Nakama[.]" The State argued that the
break-in evidence was relevant "to show a lack of consent or
absence of mistake by the complaining witness .. . with respect
to the whereabouts of her [credit card]." In addition, the State
did "not intend to go into the specific facts or circumstances of
Ms. Nakama's car break-in[.]"

When asked by the court for suggestions, the following
colloquy took place:

[Palisbo's attorney]: Your Honor, we would be willing to at
least stipulate that .. . the card was taken.

THE COURT: From where?

[Palisbo's attorney]: See, at this point my biggest- concern
is that we would have to mount a defense or present an alibi or
something to the effect to prove that my client was --

THE COURT: Taken without consent would open up the door that
the jury might speculate that somebody actually broke into her
house. It would seem to the Court that if the evidence is limited
to the fact that the complainant just says that the purse was
taken from her car without her consent, that should satisfy both
counsel.

[Palisbo's attorney]: Okay.

THE COURT: And if you wish to have a limiting instruction or
something of that nature, the Court can give that as well. But it
seems to the Court that that would not be undue focus. [The
Prosecutor] has said he's not calling the particular investigator
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involved. So I think that the way the government is trying to
present it is in the most neutral-way that it can be.

[Prosecutor]: Your Honor, just for clarification then, the
State can elicit from Renee Nakama that her car was broken into on
May 18th; her purse was taken from her car; items that were in her
purse, such as her credit card, were taken from her purse? That's
about as far as the State could go with respect to the incident.

[Palisbo's attorney]: I would still have my objections,
although that is a reasonable offer in terms of -- I understand
the State's position that they have to have something in terms of
presenting when she lost her card.

THE COURT: Not only when she --
[Palisbo's attorney]: Or when it was taken.

THE COURT: No. Both when she lost it, correct, and that it
was taken from her possession without her consent.

[Palisbo's attorney]: And that would be fine.
{U]ltimately I guess that would be acceptable.

[Palisbo's attorney]: Your Honor .. . can I reserve the
right to ask for a limiting instruction? I need to think about
that a little bit.

D. Jury Voir Dire

Palisbo's

regarding

During the voir dire of potential jury members,
attorney questioned a prospective juror (Juror #1)

the State's burden of proof:

[Palisbo's attorney]: [D]lo you think it's fair that
the government has one hundred percent of the burden of
proof here?

[Juror #1]: With all the statements that they have.

[Palisbo's attorney]: You think it's fair that my client
doesn't have to prove that he's innocent? ;

[Juror #1]: No.
[Palisbo's attorney]: You don't think that's fair?
{Juror #1]: He can prove himself.

{[Palisbo's attorney]: Do you think it's fair that he doesn't
have to?

[Juror #1]: No.

[Palisbo's attorney]: I want to go into that. Why don't you
think it's fair that he doesn't have to? The only reason I ask,
the judge will instruct you that the State has one hundred percent
of the burden of proof, meaning like I said, we could sit back
there and not do anything, not put on a case and that can't be
held against my client. So do you think it's fair that that's the
situation?
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[Juror #1]: Well, he can also protect himself. He can
present his side.

[Palisbo's attorney]: Do you understand that he doesn't have
to and you can't hold that against him?

[Juror #1]: Yes.

[Palisbo's attorney]: And you're willing to do that?
[Juror #1]: Yeah.

[Palisbo's attorney]: You can support that?

[Juror #1]: Yes.

Later in the jury selection process, a second
prospective juror (Juror #2) was questioned about her ability to
be impartial during Palisbo's trial in light of the fact that she
was related to two police officers:

THE COURT: Would you be able to put aside any case
that they discussed with you and judge this case based only
on the evidence presented in the courtroom?

[Juror #2]: Yes.

THE COURT: And if a police officer were to testify, would
you judge a police officer's -- give greater weight to the police
officer's testimony simply by the fact they're a police officer?

[Juror #2]: No.

THE COURT: Is there any reason that you know why you could
not be a fair and impartial juror?

{Juror #2]: No.

Palisbo did not challenge either juror, and neither one was

dismissed by the circuit court for cause.

E. Trial Proceedings

During trial, Nakama testified that her car had been
broken into on the morning of May 18, 2007, and that her
schoolbag, containing her wallet, books, and a thumbdrive had
been stolen. Nakama explained that her wallet contained credit
cards, gift cards, cash, checks, and identification, and that one
of the credit cards was the credit card produced by Palisbo at
Codi Club later that day. At the close of the direct
examination, and following defense counsel's election to ask no
questions of Nakama, the circuit court gave the following

limiting instruction: "Members of the jury, you have heard the
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evidence that Miss Nakama's car was broken into. You are not to
‘consider or to speculate as to who the person was who committed
that offense."

After the parties rested, the circuit court and the
parties discussed jury instructions. The court offered to
reiterate the limiting instruction that it had provided following
Nakama's testimony. Palisbo's attorney, however, requested that

the instruction not be given:

THE COURT: [T]he court has offered an instruction to
the defense, something to the effect "you are instructed not
to consider or speculate as to the identity of the person
who broke into Ms. Nakama's car or who the person was that
broke into Ms. Nakama's car.[{"] I understand the defense
does not want that instruction?

[Palisbo's attorney]: Correct.

The jury found Palisbo guilty on all counts. , On
April 7, 2008 the circuit court entered the judgment and
sentenced Palisbo to five years of incarceration for each count,
with terms to run concurrently, and to the mandatory minimum of
three years and four months as a repeat offender for Counts I,
Il, and IV.

II. POINTS OF ERROR

Palisbo asserts that "[t]he circuit court reversibly
erred in admitting evidence in violation of [Hawaii Rules of
Evidence (HRE) Rules ] 401, 402, and 403." Specifically, Palisbo
argues that "[t]he circuit court erred in admitting irrelevant
and prejudicial evidence regarding the break-in of Nakama's
vehicle because such evidence was inadmissible under Rules 401,
402, and 403 of the [HRE] ."

Additionally, Palisbo contends that "[t]he circuit
court reversibly erred in failing to give a timely and adequate
limiting instruction." Specifically, Palisbo argues that
"fa]Jlthough the circuit court gave a limiting instruction, it did
so only after the State introduced the incompetent evidence[,]"
and that "the circuit court should have instructed the jury prior
to the introduction of the evidence and during the charge to the
jury. In addition, the limiting instruction failed to adequately
instruct the jury as to the proper and improper use of the

evidence."
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Finally, Palisbo contends that the circuit court
plainly erred in failing to excuse two jurors for cause.
Specifically, Palisbo asserts that Juror #1 should have been
excused for "beliefs, which were contrary to the constitutionally
established principles of the burden of proof and the presumption
of innocence," and Juror #2 should have been excused because of
her "personal relationship with two relatives who were HPD

officers."
ItI. STANDARDS OF REVIEW

A. Admissibility Of Evidence

"A trial court's determination that evidence is
'relevant' within the meaning of HRE Rule 401 (1993) is reviewed
under the right/wrong standard of review." State v. St. Clair,
101 Hawai‘i 280, 286, 67 P.3d 779, 785 (2003). In contrast,
"[Te]videntiary decisions based on HRE Rule 403, which require a
‘judgment call' on the part of the trial court, are reviewed for
an abuse of discretion." State v. Richie, 88 Hawai‘i 19, 37, 960
P.2d 1227, 1245 (1998) (internal quotation marks, citations, and

footnote omitted).

B. Harmless Error

Hawai'i Rules of Penal Procedure (HRPP) provide, in
relevant part, that "[a]ny error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded." Haw. R. Pen. Pro. 52(a). The Hawai‘i Supreme
Court has stated that "[s]uch error, however, should not be
viewed in isolation and considered purely in the abstract. It
must be examined in light of the entire proceedings and given the
effect to which the whole record shows it is entitled." State v.
Sprattling, 99 Hawai'i 312, 320, 55 P.3d 276, 284 (2002)
(internal quotation marks, citation, and brackets in original
omitted) .

Under the harmless error standard, the appellate court
"must determine whether there is a reasonable possibility that
the error complained of might have contributed to the
conviction." State v. Pauline, 100 Hawai‘i 356, 378, 60 P.3d

306, 328 (2002) (internal quotation marks and citation omitted).

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"If there is such a reasonable possibility in a criminal case,
then the error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which it may have been based must be
set aside." State v. Gano, 92 Hawai‘i 161, 176, 988 P.2d 1153,

1168 (1999) (internal quotation marks and citation omitted).

Cc. Jury Instructions, Not Objected To At Trial (Criminal)

The standard of review for jury instructions that were
not objected to at trial was clarified in State v. Nichols, 111
Hawai'i 327, 141 P.3d 974 (2006), where the Hawai‘i Supreme Court
held that

although as a general matter forfeited assignments of error
are to be reviewed under the HRPP Rule 52(b) plain error
standard of review, in the case of erroneous jury
instructions, that standard of review is effectively merged
with the HRPP Rule 52(a) harmless error standard of review
because it is the duty of the trial court to properly
instruct the jury. As a result, once instructional error is
demonstrated, we will vacate, without regard to whether
timely objection was made, if there is a reasonable
possibility that the error contributed to the defendant's
conviction, i.e., that the erroneous jury instruction was
not harmless beyond a reasonable doubt.

Td. at 337, 141 P.3d at 984 (footnote omitted). Thus, the
appellant must first demonstrate instructional error by rebutting
the "presumption that unobjected-to jury instructions are
correct." Id. at 337 n.6, 141 P.3d at 984 n.6; accord State v.
Eberly, 107 Hawai‘i 239, 250, 112 P.3d 725, 736 (2005). If the
appellant is able to rebut this presumption, the burden shifts to
the State to prove that the error was harmless beyond a

reasonable doubt because

fe]rroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.
However, error is not to be viewed in isolation and
considered purely in the abstract. It must be examined in
the light of the entire proceedings and given the effect
which the whole record shows it to be entitled.

Nichols, 111 Hawai‘i at 334, 141 P.3d at 981 (brackets in
original omitted) (quoting State v. Gonsalves, 108 Hawai‘i 289,
293, 119 P.3d 597, 601 (2005)). If the State cannot demonstrate
that the error was harmless beyond a reasonable doubt, the
conviction must be vacated. Nichols, 111 Hawai‘i at 337, 141

P.3d at 984.
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D. Plain Error

HRPP states that "[p]llain errors or defects affecting
substantial rights may be noticed although they were not brought
to the attention of the court." Haw. R. Pen. Pro. 52(b).
Therefore, an appellate court "may recognize plain error when the
error committed affects substantial rights of the defendant.”
State v. Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999)
(internal quotation marks and citation omitted).

The appellate court "will apply the plain error
standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial

proceedings, to serve the ends of justice, and to prevent the

denial of fundamental rights." Nichols, 111 Hawai‘i at 334, 141
P.3d at 981 (quoting State v. Sawyer, 88 Hawai‘i 325, 330, 966
P.2d 637, 642 (1998)). An appellate court's "power to deal with

plain error is one to be exercised sparingly and with caution
because the plain error rule represents a departure from a
presupposition of the adversary system--that a party must look to
his or her counsel for protection and bear the cost of counsel's
mistakes." Nichols, 111 Hawai‘i at 335, 141 P.3d at 982 (quoting
State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993)).

E. Removal Of Juror For Cause (Abuse Of Discretion)

An appellate court reviews the trial court's decision
to pass a juror for cause under the abuse of discretion standard.
State v. Kauhi, 86 Hawai'i 195, 197, 948 P.2d 1036, 1038 (1997)

(citation omitted).
V. DISCUSSION

A. The Circuit Court Did Not Abuse Its Discretion In Admitting
Testimony Regarding The Unauthorized Entry Of Nakama's Motor
Vehicle

Palisbo asserts that "[t]he circuit court erred in
permitting the State to introduce evidence regarding the break-in
of Nakama's vehicle" (the break-in evidence) because it was
irrelevant and overly prejudicial. The record reflects, however,
that Nakama's testimony regarding the break-in of her automobile

and the theft of personal items, including the credit card used
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by Palisbo, was relevant, and its probative value was not

substantially outweighed by its prejudicial effect.

1. The evidence of the car break-in was relevant

Relevant evidence is generally admitted. Haw. R. Evid.
402. Relevant evidence is excluded, however, "if its probative
value is substantially outweighed by the danger of unfair
prejudice[.]" Haw. R. Evid. 403. Thus, the evidence of the
break-in and theft of Nakama's personal items, including the
credit card used by Palisbo, is admissible if it is relevant and
not overly prejudicial .2/

"'tRelevant evidence' means evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Haw. R. Evid. 401. Here, the
break-in evidence was relevant to show, among other things, the
absence of mistake or consent on the part of Nakama. The absence
of consent is a necessary element for the charges in Counts I and
III. See Haw. Rev. Stat. § 708-839.55(1) ("[a] person commits
the offense of unauthorized possession of confidential personal
information if that person intentionally or knowingly possesses,
without authorization, any confidential personal information of
another") (emphasis added); and Haw. Rev. Stat. § 708-8102 (1)
("[a] person who takes a credit card from the person, possession,
custody, or control of another without the cardholder's consent
or who, with knowledge that it has been so taken, receives the
credit card with intent to use it") (emphasis added).

Ultimately, the break-in evidence was relevant because
it made the fact that the credit card in question was used and
possessed by Palisbo without Nakama's consent more probable than
it would have been without the evidence. Accordingly, the
circuit court correctly found that the evidence was relevant.

See St. Clair, 101 Hawai‘i at 286, 67 P.3d at 785 (the

right/wrong standard is used to determine relevance).

a/ Palisbo does not argue on appeal that the introduction of the
break-in evidence amounted to introduction of character, other crimes, wrongs
or acts under HRE Rule 404. This is appropriate as "other crimes, wrongs, or
acts" under Rule 404(b) are ordinarily those of the defendant. In this case,
the State does not argue that Palisbo committed the break-in, but that the
evidence is necessary to prove the victim's lack of consent.

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2. The probative value of the evidence was not
substantially outweighed by the danger of unfair
prejudice

Relevant evidence may nevertheless be excluded "if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Haw. R. Evid.
403. "If probative value is great, the evidence will be admitted
even though equally great prejudice must be risked." Addison M.
Bowman, Hawaii Rules of Evidence Manual, 4-14 (2008-09 ed.). For
example, in State v. Sawyer, the Hawai‘i Supreme Court dismissed
defendant's objection that the court erred in permitting the
display of gruesome photographs. Sawyer, 88 Hawai‘i at 329 n.7,
966 P.2d at 641 n.7 (approving receipt of fourteen color
photographs depicting injuries inflicted with a broken vodka
‘bottle to the face and head of an attempted murder victim, noting
that "[c]lourts, traditionally, have great discretion in admitting
such evidence"). See also Best Place, Inc. v. Penn America Ins.
Co., 82 Hawai‘i 120, 141, 920 P.2d 334, 355 (1996) (declining to
consider prejudice upon concluding that the evidence was "clearly
probative" of facts of consequence in the case).

To balance the probative value and the prejudicial
effect of evidence, Hawai‘i courts examine "the need for the
evidence, the efficacy of alternative proof, and the degree to
which the evidence will probably rouse the jury to overmastering
hostility." State v. Uyesugi, 100 Hawai‘i 442, 463, 60 P.3d 843,
864 (2002) (internal quotation marks omitted). "[T]he
determination of the admissibility of relevant evidence under HRE
fRule] 403 is eminently suited to the circuit court's exercise of
its discretion because it requires a cost-benefit calculus anda
delicate balance between probative value and prejudicial
effect[.]" Uyesugi. 100 Hawai‘i at 463, 60 P.3d at 864 (quoting
State v. Janto, 92 Hawai‘i 19, 31, 986 P.2d 306, 318 (1999)).

"The responsibility for maintaining the delicate balance between
probative value and prejudicial effect lies largely within the

discretion of the trial court." Kaeo v. Davis, 68 Haw. 447, 454,

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719 P.2d 387, 392 (1986) (quoting State v. Iaukea, 56 Haw. 343,
349, 537 P.2d 724, 729 (1975)).

Here, evidence of the break-in was necessary to
establish when Nakama's credit card was taken, that it was taken
without her consent, and a lack of mistake by Palisbo, in order
to satisfy the elements of Counts I and III. In addition, the
circuit court was concerned that if the jury was not informed as
to the circumstances of how Nakama was dispossessed of her credit
card, "the jury might speculate that somebody actually broke into
her house[,]" and thus unwarrantedly attribute further bad acts
to Palisbo.

Although Palisbo offered to stipulate that the credit
card was taken, the prosecution is under no obligation to accept
such a stipulation. United States v. Chambers, 918 F.2d 1455,
1462 (9th Cir. 1990) (court did not abuse its discretion in
allowing evidence over defendant's offer to stipulate). In
addition, the offer to stipulate that the card "was taken" did
not address the State's need to establish that the card was taken
without consent or mistake, or the circuit court's concern that,
without some explanation of the circumstances, the jury might be
misled into speculating about the methodology. Moreover, because
the proffered evidence dealt with a crime for which Palisbo was
not charged, the danger of overriding prejudice was substantially
decreased. See State v. Cordeiro, 99 Hawai‘i 390, 418, 56 P.3d
692, 720 (2002) (the danger of unfair prejudice was significantly
diminished because the evidence related to a dissimilar crime).

Any prejudicial effect of admitting the break-in
evidence was mitigated by the circuit court's limiting
instruction that the jurors were "not to consider or to speculate
as to who the person was who committed that offense." See State
v. Jhun, 83 Hawai‘i 472, 482, 927 P.2d 1355, 1365 (1996) (stating
that "[a]s a rule, we presume that the jury followed all of the
trial court's instructions"). Therefore, we conclude that the
circuit court did not abuse its discretion in finding that the
probative value of the evidence surrounding the loss of Nakama's
credit card was not substantially outweighed by its prejudicial

effect. See Richie, 88 Hawai'i at 37, 960 P.2d at 1245 (holding

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that the abuse of discretion standard is used when balancing

probative value and prejudicial effect of evidence).

3. Any error with regard to admission of the evidence was
harmless
Ultimately, "[ilf there is a plethora of overwhelming

and compelling evidence tending to show the defendant guilty
beyond a reasonable doubt, errors in the admission or exclusion
sof evidence will be deemed harmless." State v. Buffalo, 4 Haw.
App. 646, 650, 674 P.2d 1014, 1018 (1983) (abrogated on other
grounds by State v. Sanchez, 82 Hawai'i 517, 923 P.2d 934 (App.
1996). In light of the overwhelming evidence showing that
Palisbo was guilty of the charged offenses beyond a reasonable
doubt, any error in admitting the evidence was harmless.

The record shows that Palisbo had possession of
Nakama's stolen credit card without her consent, that he
attempted to use it to purchase merchandise without
authorization, that when questioned he stated that the credit
card was his, and that he signed the receipt above Nakama's name
without her permission. Moreover, the disputed break-in evidence
was of an offense for which Palisbo was not charged with, and the
jury was specifically instructed not to speculate that Palisbo
was the one who committed the offense.

When examined in light of the entire proceedings, and
giving the disputed break-in evidence the effect to which the
whole record shows it is entitled, it cannot be said that there
was a reasonable possibility that the introduction of the break-
in evidence contributed to Palisbo's conviction. See Pauline,
100 Hawai‘i at 378, 60 P.3d 306, 328 (2002) (stating the harmless
error standard). The evidence of Palisbo's guilt in this case
was overwhelming; accordingly, the circuit court did not commit
reversible error in admitting the break-in evidence.

B. The Circuit Court's Limiting Instruction Was Both Timely And
Adequate

Following introduction of the break-in evidence and the
theft of the credit card, the circuit court admonished the jury
that they were "not to consider or to speculate as to who the

person was who committed that offense." Palisbo asserts that the

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limiting instruction "was plainly erroneous,"4/ specifically that
the circuit court's limiting instruction "should have been given
prior to the introduction of the evidence and during the charge
to the jury[,]" and that it "failed to adequately inform the jury
on the proper and limited use of the evidence."

-A limiting instruction must be given upon request if
evidence is admissible as to one party or for one purpose, but
not as to another party or another purpose, or if the evidence
was admitted to show character, other crimes, wrongs or acts.
Haw. R. Evid. 105, 404. Palisbo, however, did not request a
limiting instruction, and the evidence was admitted for a
specific purpose unrelated to HRE Rule 404. See, supra, n.3.
Nevertheless, a limiting instruction "may also be necessary to
prevent potential prejudice to a defendant." State v. Murray,
116 Hawai'i 3, 18-19, 169 P.3d 955, 970-71 (2007) (citing State
v. Konohia, 106 Hawai‘i 517, 528, 107 P.3d 1190, 1201 (App.
2005). While the circuit court's decision to provide a limiting
instruction was appropriate under the circumstances, the
assertion of error is without merit because we conclude that the

limiting instruction was both timely and adequate.

1. Timeliness of the instruction
Palisbo contends that the circuit court's instruction
was untimely because the court should have given the instruction

prior to Nakama's testimony and during the charge to the jury .2/

a/ Although Palisbo did not object to the limiting instruction, under
Nichols, 111 Hawai‘i at 337, 141 P.3d at 984, the standard of review is not
strictly "plain error." See part III.C supra, for discussion.

3/ Palisbo references a single Nevada case in support of the

proposition. In Tavares v. State, 117 Nev. 725, 30 P.2d 1128 (2001) the
Nevada Supreme Court concluded that limiting instructions must be given
immediately prior to the admission of the evidence and during final jury
instructions.

Therefore, to maximize the effectiveness of the instructions, we
hold that the trial court should give the jury a specific
instruction explaining the purposes for which the evidence is
admitted immediately prior to its admission and should give a
general instruction at the end of trial reminding the jurors that
certain evidence may be used only for limited purposes.

117 Nev. at 733, 30 P.2d at 1133. The Tavares court went further, though, and

concluded that a defense request that a limiting instruction not be given
should govern. According to the court, "in unusual circumstances, the defense

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Although this court has strongly suggested that trial courts give
a cautionary instruction prior to and during the charge to the
jury, see State v. Chong, 3 Haw. App. 246, 254, 648 P.2d 1112,
1118 (1982), the Hawai‘i Supreme Court has clarified that there
is no bright-line rule, and that the trial court has considerable
discretion in determining whether and when to issue a limiting
instruction. Cordeiro, 99 Hawai‘i at 418-19, 56 P.3d at 720-21
(trial court's decision to issue a single limiting instruction at
the conclusion of the trial did not jeopardize the defendant's
right to a fair trial).

The record shows that the circuit court gave the
limiting instruction immediately after Nakama's testimony, and
that Palisbo's counsel affirmatively declined thereafter to have
the court issue a further instruction. In light of that, and the
fact that trial courts are afforded significant discretion over
whether and when to issue a limiting instruction; that the court
offered, and Palisbo refused, a break-in specific limiting
instruction at the close of the case; that the court
reincorporated its earlier instructions as part of a general
instruction at the close of the case; and that the objected-to
testimony carried with it only a limited potential for prejudice;
we conclude that the court did not abuse its discretion, and that
Palisbo was not deprived of his fundamental right to a fair

trial.

2. Content of the instruction
Palisbo did not object at trial to the court's failure
to incorporate instructions on the uses to which the break-in
evidence could be put in its limiting instruction to the jury.
The law requires only that "[e]vidence which is admissible as to
one party or for one purpose but not admissible as to another

party or for another purpose is admitted, the court, upon

may not wish a limiting instruction to be given for strategic reasons. In
those circumstances, the desire of the defendant should be recognized as he is
the intended beneficiary of the instruction and is in the best position to

evaluate its consequence." 117 Nev. at 731, 30 P.2d at 1132 (footnote
omitted) (emphasis added). Here, Palisbo's counsel refused a further limiting
instruction as part of the final jury instructions. See, supra, discussion at

section I.E.

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request, shall restrict the evidence to its proper scope and
instruct the jury accordingly." Haw. R. Evid. 105 (emphasis
added). The Hawai‘i Supreme Court has stated that when there is
no objection to a jury instruction, it is the duty of the
‘appellant to demonstrate instructional error by rebutting the
"presumption that unobjected-to jury instructions are correct[.]"
Nichols, 111. Hawai‘i at 337 n.6, 141 P.3d at 984 n.6.

Palisbo argues that the circuit court's limiting
instruction was inadequate because it "failed to specify in what
manner the jurors were able to use the evidence[,]" and "did not
instruct the jurors that it could not hold the evidence against
Palisbo in anyway [sic]." In support, Palisbo contends that the
jury "could have inferred from the evidence that Palisbo was a
person of bad character, and thus, the State's witnesses were
more credible."

Palisbo understates the force of the circuit court's
. prohibition against using Nakama's testimony as a basis from
which to speculate who committed the break-in. The instruction
prohibited jurors from attributing the break-in to Palisbo, and,
hence, from attributing it to Palisbo's character or propensity.
As the jury was not allowed to consider who perpetrated the acts,
all that remained was the fact that the break-in happened and
that Nakama's personal items, including the credit card, were
taken.

We reiterate our recommendation that trial courts give
a cautionary instruction regarding the restrictive use of "other
crimes, wrongs or bad acts" evidence prior to and during the
charge to the jury. &/ Chong, 3 Haw. App. at 254, 648 P.2d at
1118. In the instant case, however, the given instruction (to
not speculate as to who might have committed the break-in) had
the effect of limiting the uses to which the break-in testimony
could be put. Most significant, it prevented the jury from

speculating that Palisbo might have committed the break-in. See

s/ In Chong, we recommended that the initial instruction be offered
before introduction of the evidence. 3 Haw. App. at 254, 648 P.2d at 1118.
Our recommendation today is less specific, more consistent,with the Supreme
Court's ruling in Cordeiro, and allows the trial court the discretion to
determine the precise timing of the initial instruction.

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Jhun, 83 Hawaii at 482, 927 P.2d at 1365 (Hawai'i appellate
courts will "presume that the jury followed all of the trial
court's instructions.")

As such, Palisbo fails to overcome the presumption that
the jury followed the logical consequences of the court's
instruction. Having not objected to or requested a more specific
limiting instruction at trial, Palisbo fails also to rebut the
presumption that the unobjected-to jury instruction was correct.
Therefore, the circuit court did not reversibly err in failing to
enumerate the permissible uses of HRE Rule 403 evidence.

Cc. The Circuit Court Did Not Plainly Err In Failing To Excuse
Two Jurors For Cause

Palisbo contends that the circuit court "plainly erred
in failing to excuse two jurors for cause." Specifically,
Palisbo argues that, even though he failed to object to either
juror, the circuit court should have sua sponte removed
prospective Juror #1 for beliefs "which were contrary to the
constitutionally established principles of the burden of proof
and the presumption of innocence," and prospective Juror #2 for

her "personal relationship with two relatives who were HPD

officers." Palisbo's arguments are without merit.
Palisbo cites to Kauhi, 86 Hawai‘i 195, 948 P.2d 1036
for support. In Kauhi, however, the court had refused a defense

objection for cause to the seating of a prosecution employee as a
juror. As a result, the defense used its final peremptory
challenge, and was unable to challenge other subsequent jurors.
Id. at 198, 948 P.2d at 1039. The fact that Palisbo made no
objection to either juror below, and that he retained unused
peremptory challenges at the close of voir dire, fundamentally
distinguishes this case from Kauhi. A defendant "cannot sit in
silence and accept a juror as unprejudiced and fair and then
subsequently allege error in the retention of the same juror."
State v. Graham, 70 Haw. 627, 634, 780 P.2d 1103, 1107-08 (1989)
(internal quotation marks omitted); see also State v. Iuli, 101
Hawai‘i 196, 205, 65 P.3d 143, 152 (2003) (defendant failed to
meet his burden to establish that his right to exercise a

peremptory challenge was denied or impaired, having made "no

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proffer that he would have excused another prospective juror,"
and having not requested additional peremptory challenges).

Although Juror #1 initially stated that she thought it
unfair that Palisbo did not have to prove his innocence, when
asked if she would be willing to support the fact that Palisbo
‘did not have to prove his innocence and whether she understood
that she could not hold it against him, Juror #1 responded "yes."
Additionally, despite Palisbo's assertion that Juror #2 was
biased because of her personal relationship with two HPD
officers, when asked if she would give greater weight to
testimony proffered by police officers and if there was any
reason that she could not be impartial, Juror #2 stated "no."

It is axiomatic that the court is "not bound by a
prospective juror's statement that he or she will be fair and
impartial." Kauhi, 86 Hawai‘i at 199, 948 P.2d at 1040. Unlike
the case in Kauhi, however, where the appearance of impropriety
was evident in the juror's employment relationship, the record of
voir dire here is more similar to that in Graham, where the

Hawai‘i Supreme Court observed that

the record reflects the ambiguous and at times contradictory
responses of the challenged juror to queries regarding her
willingness to lay aside impressions or opinions formed from
earlier media accounts. Still, this is not unusual on voir dire
examination . . . . Her opinions could hardly be characterized as
strong and deep impressions which close the mind against the
testimony that may be offered in opposition to them.

70 Haw. at 634-35, 780 P.2d at 1108 (internal quotation marks,
citation, and footnote omitted).

"When a juror is challenged on grounds that [they have]
formed an opinion and cannot be impartial, the test is whether
the nature and strength of the opinion are such as in law
necessarily raise the presumption of partiality." Id. at 633,
780 P.2d at 1107 (internal quotation marks and ellipsis omitted).
"(T]he reviewing court is bound by "the proposition that findings
of impartiality should be set aside only where prejudice is
manifest." Id. at 634, 780 P.2d at 1107 (citation and internal
quotation marks omitted). In the instant case, the evidence of
prejudice is ambiguous and certainly not manifest; consequently,

the court did not err in failing to excuse the jurors for cause.

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V. CONCLUSION
The April 7, 2008 Judgment of Conviction and Sentence

entered in the circuit court is affirmed.

DATED: Honolulu, Hawai‘i, April 20, 2010.

On the briefs:

George A. Burke
for Defendant-Appellant.

Stephen K. Tsushima,

Deputy Prosecuting Attorney,
City & County of Honolulu
for Plaintiff-Appellee.

Associate Judge

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