State v. Willis.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-APR-2024
07:52 AM
Dkt. 88 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ERIK WILLIS, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

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

APRIL 30, 2024

LEONARD, ACTING CHIEF JUDGE, AND HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

Defendant-Appellant Erik Willis (Willis) appeals from
the Amended Judgment of Conviction and Sentence (Amended
Judgment), entered on July 20, 2022, in the Circuit Court of the
First Circuit (Circuit Court).1/ After a jury trial, Willis was
convicted of Attempted Murder in the Second Degree, in violation
of Hawaii Revised Statutes (HRS) §§ 705-5002/ and 707-701.53/

1/
The Honorable Kevin A. Souza presided.
2/
HRS § 705-500 (2014) states, in pertinent part:
Criminal attempt. (1) A person is guilty of an
attempt to commit a crime if the person:
. . . .

(b) Intentionally engages in conduct which, under
the circumstances as the person believes them to
(continued...)
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On appeal, Willis contends that: (1) the Circuit Court
"erred in denying [Willis's] Motion to Dismiss the Indictment for
lack of probable cause"; (2) the Circuit Court "erred in denying
[Willis's] Motion to Suppress Identification of [Willis]"; (3)
"[t]he prosecutor committed multiple, continuing, and egregious
acts of misconduct throughout the course of the trial and
especially during closing arguments that violated [Willis's]
constitutional right to a fair trial"; (4) the Circuit Court
"erred in denying [Willis's] Motion for Judgment of Acquittal";
and (5) the Circuit Court "abused its discretion in denying
[Willis's] Motion for New Trial based on sufficiency of the
evidence and prosecutorial misconduct."
We hold that the Circuit Court did not err in denying
Willis's motion to dismiss the indictment for lack of probable
cause, and in denying Willis's motion to suppress the complaining
witness's (M.K.) identification of Willis as her assailant. In
denying the motion to suppress, the Circuit Court did not clearly
err in determining that M.K.'s identification was sufficiently
reliable for presentation to the jury under the totality of the
circumstances, based on the court's assessment of the factors
established in State v. Kaneaiakala, 145 Hawai#i 231, 450 P.3d
761 (2019), for evaluating an eyewitness identification obtained
through an impermissibly suggestive procedure.
We further hold, however, that the deputy prosecuting
attorney (DPA) committed prosecutorial misconduct4/ during his
closing argument, when he argued to the jury that Willis was

(...continued)
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.
3/
HRS § 707-701.5 (Supp. 2018) states, in pertinent part:

Murder in the second degree. (1) Except as provided
in section 707-701, a person commits the offense of murder
in the second degree if the person intentionally or
knowingly causes the death of another person; provided that
this section shall not apply to actions taken under chapter
327L.
4/
"The term 'prosecutorial misconduct' is a legal term of art that
refers to any improper action committed by a prosecutor, however harmless or
unintentional." State v. Maluia, 107 Hawai #i 20, 25, 108 P.3d 974, 979
(2005).

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depicted in a surveillance video after the attack leaving a work
sink, and "we know from [witness] Edward Leal [(Leal)] that
[Willis] washed his hands and his face because he had blood on
them." The DPA's statement referred to evidence of blood that
was not in the record and misrepresented the testimony of the
identified witness. Another statement by the DPA minutes later –
that "after he stabbed [M.K.], [Willis] got blood on [his t-
shirt]" – also introduced new evidence of blood in closing
argument and amounted to misconduct. Based on the serious nature
of the DPA's conduct, the lack of a curative instruction, and the
heavy dependence of the conviction on M.K.'s credibility, we
conclude that the DPA's improper statements about blood on Willis
and his shirt were not harmless beyond a reasonable doubt, and
his conviction must therefore be vacated. Relatedly, we hold
that the Circuit Court erred in denying Willis's motion for a new
trial based on prosecutorial misconduct in introducing this new
blood evidence in closing argument.
Finally, we hold that the Circuit Court did not err in
denying Willis's motion for judgment of acquittal. Viewing the
evidence as we must in the light most favorable to the
prosecution, there was sufficient evidence to support a prima
facie case so that a reasonable mind might fairly conclude that
Willis was M.K.'s assailant and was guilty beyond a reasonable
doubt of attempted murder in the second degree. This evidence
included M.K.'s testimony regarding the attack and surveillance
videos that largely corroborated M.K.'s description of her
attacker.
Accordingly, we vacate the Amended Judgment based on
prosecutorial misconduct and remand the case for a new trial.

I. Background

On July 8, 2020, at about 1:45 p.m., M.K., then aged
17, was stabbed while lying on her stomach on the beach in Kahala
near 4671 Kahala Avenue. M.K. sustained life-threatening
injuries, lost a significant amount of blood, and was rushed to
the hospital for emergency medical treatment. Fortunately, she
survived the stabbing.

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During the course of their investigation, Honolulu
Police Department (HPD) officers recovered surveillance video
footage from 5605 Haleola Street, Bus No. 532, 4671 Kahala
Avenue, 4635 Kahala Avenue, and 948 Pueo Street. The recovered
video footage depicts events recorded on July 8, 2020, at the
following times:5/
• 12:29 p.m.: The video footage from 5605 Haleola
Street shows "a fair[-]skinned man, with dark
curly hair, a blue disposable face mask, a clean
white t-shirt, tan pants, and dark colored shoes
with white striping on the side." HPD Corporal
Matthew Motas (Corporal Motas), who had mentored
Willis during the period from September 2015 to
January 2016, positively identified the man in the
video footage as Willis.
• 1:11 to 1:25 p.m.: Bus 532's video footage shows
"a fair[-]skinned man, with dark curly hair, a
blue disposable face mask, a clean white t-shirt,
tan pants, and dark colored shoes. Bus 532 picks
up the man at about 1:11 p.m. at the bus stop
located at the intersection of Kalanianaole
Highway and Halemaumau Street [and] travels to
Kahala Avenue [before] the man exits the bus at
about 1:25 p.m. at a bus stop located near 4671
Kahala Avenue." Corporal Motas positively
identified the man in the video footage as Willis.
• 1:26 p.m.: The video footage from 4671 Kahala
Avenue shows "a man with dark curly hair, a white
t-shirt, tan pants, and dark shoes with white
marking on the side. The man is walking on a
beach access walkway from Kahala Avenue towards
the beach."
• 1:46 p.m.: The video footage from 4635 Kahala

5/
The corresponding descriptions of the video footage are drawn
primarily from the uncontested findings of fact in the Circuit Court's
March 22, 2021 "Findings of Facts, Conclusions of Law and Order Denying
[Willis's] Motion to Dismiss the Indictment With Prejudice Filed on
November 16, 2020." See State v. Rodrigues, 145 Hawai #i 487, 494, 454 P.3d
428, 435 (2019) (unchallenged findings of fact are binding on appeal).

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Avenue shows "a person with dark curly hair, no
shirt, tan pants, and dark shoes run across a
construction site immediately adjacent to the
property. The man comes running from the
direction of the beach[,] runs to a sink[,] and
appears to wash himself off."
• 3:56 p.m. to 4:00 p.m.: The video footage from
948 Pueo Street shows "a fair[-]skinned man, with
dark curly hair, a blue disposable face mask, a
soiled white t-shirt, tan pants, and dark colored
shoes with white striping on the side." Corporal
Motas positively identified the man in the video
footage as Willis.
• 4:15 p.m. to 4:26 p.m.: Bus 532's video footage
shows "a fair[-]skinned man, with dark curly hair,
a blue disposable face mask, a soiled white t-
shirt, tan pants, and dark colored shoes. Bus 532
picks up the man at about 4:15 p.m. at a bus stop
located on Pueo Street. Bus 532 travels to
Kalanianaole Highway and the man exits the bus at
about 4:26 p.m. at a bus stop located at the
intersection of Kalanianaole Highway and
Halemaumau Street." Corporal Motas positively
identified the man in the video footage as Willis.
• 4:35 p.m.: The video footage from 5605 Haleola
Street shows "a fair[-]skinned man, with dark
curly hair, a blue disposable face mask, a soiled
white t-shirt, tan pants, and dark colored shoes
with white striping on the side." Corporal Motas
positively identified the man in the surveillance
video footage as Willis, who "is depicted walking
toward his grandparents' house."
(Record citations omitted.)
On July 11, 2020, HPD officers arrested Willis at his
grandparents' home in Niu Valley. They did not have permission
or a warrant to enter the home. Once inside, the police came
across shoes and a shirt that matched the suspect's clothing.

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Nearly two hours after arresting Willis, the police seized the
shoes and the shirt from the home.
On July 24, 2020, a grand jury indicted Willis for
attempted murder in the second degree.
On November 16, 2020, Willis filed a motion to dismiss
the indictment with prejudice, a motion to suppress evidence and
statements obtained pursuant to the warrantless entry and search,
and a motion to suppress the identification of Willis as M.K.'s
assailant. The Circuit Court heard the motion to dismiss the
indictment on January 28, 2021, and the motions to suppress on
January 28 and February 23, 2021.
The Circuit Court denied the motion to dismiss the
indictment and the motion to suppress the identification of
Willis, but granted the motion to suppress the shoes, the shirt
and the statements Willis made when he was arrested. The State
appealed from the order granting Willis's motion to suppress.
The Hawai#i Supreme Court accepted the State's application for
transfer and affirmed the order granting the motion to suppress.
State v. Willis, 150 Hawai#i 235, 238, 241, 500 P.3d 420, 423,
426 (2021).
A jury trial began on March 29, 2022. Numerous
witnesses, including M.K. and Corporal Motas, testified for the
State. In her testimony, M.K. recounted the stabbing attack,
described her identification of Willis as her assailant three
days after the attack, and identified Willis in the courtroom as
her assailant. After the State rested, Willis made an oral
motion for a judgment of acquittal, arguing that the evidence was
insufficient to support a prima facie case such that a reasonable
jury could find guilt beyond a reasonable doubt. The Circuit
Court denied the motion.
On April 7, 2022, the jury found Willis guilty as
charged of attempted murder in the second degree.
On April 18, 2022, Willis filed a renewed motion for
entry of a judgment of acquittal or, in the alternative, for a
new trial. He argued that the jury's verdict was not supported
by substantial evidence and that the DPA committed prosecutorial
misconduct by, among other things, arguing from evidence not in

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the record and making arguments that had no factual support in
the record. Following a June 6, 2022 hearing, the Circuit Court
denied the motion.
The Circuit Court entered a Judgment of Conviction and
Sentence on July 14, 2022, and the Amended Judgment on July 20,
2022.
Willis filed a timely notice of appeal.

II. Discussion

A. Motion to Dismiss the Indictment

Willis contends that the Circuit Court erred in denying
his motion to dismiss the indictment, because the evidence was
insufficient to establish probable cause as to the elements of
the charged offense. We review de novo a circuit court's order
denying a motion to dismiss an indictment based on sufficiency of
the evidence to support the indictment. State v. Taylor, 126
Hawai#i 205, 215, 269 P.3d 740, 750 (2011).
We have found that similar challenges were rendered
moot by the defendant's subsequent conviction after trial, based
on the supreme court's ruling in In re Doe, 102 Hawai#i 75, 78, 73
P.3d 29, 32 (2003). See, e.g., State v. Torres, 122 Hawai#i 2, 14
n.7, 222 P.3d 409, 421 n.7 (App. 2009), aff'd and corrected on
other grounds, 125 Hawai#i 382, 262 P.3d 1006 (2011). In any
event, based on our review of the record, we reject Willis's
contention that there was insufficient evidence to support the
indictment.

B. Motion to Suppress M.K.'s Identification of Willis

Willis contends that the Circuit Court erred in denying
his motion to suppress identification. Specifically, he argues
that based on the factors set forth in Kaneaiakala, 145 Hawai#i at
242-44, 450 P.3d at 772-74, the eyewitness identification of
Willis by M.K. was unreliable and should have been suppressed.6/
On March 22, 2021, the Circuit Court entered its
"Findings of Facts, Conclusions of Law and Order Denying

6/
Willis does not challenge the denial of his motion to suppress the
identification made by Corporal Motas.

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[Willis's] Motion to Suppress Identification of [Willis] Filed on
November 16, 2020" (FOFs/COLs). The following FOFs are
uncontested and thus binding on appeal,7/ see Rodrigues, 145
Hawai#i at 494, 454 P.3d at 435:

1. On July 8, 2020 at about 1:20 p.m., M.K. went to
the beach fronting 4663 Kahala Avenue by herself . . . .
M.K. sat about two or three car lengths from the girl with
the computer. When M.K. found her spot on the beach, she
laid her pareo on the sand next to a wall and placed her bag
down. After that, she was standing up, using her phone,
looking towards the beach, and just kind of looking around.
While she was looking around, M.K. saw a guy in a t-shirt
and jeans with a blue clinical face mask on, walking down
the beach. M.K. thought the guy's jeans were either a light
gray or a light blue. He was playing with his hands and
putting them in his hair, and rubbing his hands, and putting
them in his pockets. The guy was wearing shoes on the beach.
His skin tone was a whiter tone, a bit pale. M.K. might
have seen the guy at the beach before, but she was unsure.
She had never talked to the guy. The guy stared at the girl
on the computer but then looked in M.K.'s direction. The
guy kept walking towards M.K.'s area and sat down by a bush
about a car length and a half from M.K. At some point, M.K.
turned over and laid on her belly. As soon as M.K. turned
over, she felt a hand cover her mouth and pull her head up.
That's when M.K. saw a knife and it started stabbing her
neck. M.K. tried to block with her left hand and tried to
grab the knife with her right hand. There was a lot of
pressure on her lower back, so when M.K. was squirming she
could not get up. M.K. felt like she was stabbed about 15
times. The last stab, the guy held the knife in M.K.'s neck
longer before pulling it out. Then the guy pushed her head
back down into the sand and M.K. felt the pressure get off
her back. M.K. stood up holding her neck. M.K. looked to
the right and saw the person who stabbed her running away;
he had brown poufy curly hair, white skin, a white t-shirt
and jeans. M.K. remembered the guy was wearing a t-shirt
and jeans because she found it odd he was wearing that
clothing at the beach. She remembered his dark poufy hair
and his really thick eyebrows. M.K. went back to the left
where the girl with computer was and asked for help.
2. [Describing mentoring of Willis by Corporal
Motas]
3. On July 9, 2020, the day following M.K.'s
attack, police recovered surveillance video footage from
4671 Kahala Avenue, which was in close proximity to the
location of M.K.'s stabbing. That surveillance video
captured events at an adjacent beach right-of-way on July 8,
2020 at about 1:26 p.m. That surveillance video depicted a
person of interest with medium length dark hair, a white t-
shirt, tan pants, and dark shoes with markings on the side
walking from Kahala Avenue towards Kahala beach . . . .

7/
We reject Willis's contention in his Reply Brief that by
challenging the Circuit Court's evaluation of Kaneaiakala factors 2, 4, 6, 8,
10, and 11, which the Circuit Court addressed in COLs 13, 17, 21, 23, 27, and
29, respectively, Willis challenged the Circuit Court's FOFs. See Hawai #i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Additionally, Willis makes
no argument that any specific FOF is clearly erroneous. See HRAP Rule
28(b)(7) ("Points not argued may be deemed waived.").

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4.[-6. Describing, among other things, additional
surveillance video footage recovered by the police]

7. On July 10, 2020 at about 8:47 p.m., Todd
Kalahiki ("Todd") was with M.K. at the Queen's Medical
Center's Intensive Care Unit. Todd is M.K.'s father. M.K.
was unable to speak and unable to use her hands due to the
injuries that she sustained in the stabbing. Todd received
a text message on his cellular phone from an auntie that
contained a surveillance video obtained through social media
of a possible suspect. Todd showed M.K. the video on his
phone. When Todd showed M.K. the video of the stabbing
suspect, she mouthed the word "maybe." The video that Todd
showed M.K. was the surveillance video footage from 4671
Kahala Avenue. Todd's auntie is not a police officer or a
law enforcement officer. The police never directed Todd to
show that video to M.K.

8. [Describing, among other things, additional
surveillance video footage recovered by the police]
9. On July 11, 2020 at about 2:30 p.m. HPD
Detective Neil Pang and two other detectives met with M.K.
and conducted a blind sequential photographic lineup at the
Queen's Medical Center's Intensive Care Unit. M.K. could
not talk. She wiggled her right foot to answer "yes," she
wiggled her left foot to answer "no," and she blinked to
answer "maybe." M.K. could not positively identify anyone
in the blind sequential photographic lineup.
10. After the sequential photographic lineup,
Detective Pang conducted an interview with M.K. M.K.
indicated that on July 8, 2020 at 1:45 p.m. she was at the
beach. M.K. further indicated that she had been at that
beach more than twenty times. M.K. indicated that she was
laying on her stomach with her feet facing the ocean and her
head facing a wall. M.K. related she had seen the man that
attacked her three or four times in the area but had never
spoken to the man or had any contact with the man. She
related that the man had a white short sleeve t-shirt on and
that he was wearing pants. She believed his pants were
light blue. She related that the man sat down about ten feet
away and was to her left as she was laying down. M.K.
related that as she was laying on her stomach looking at her
phone, the man jumped on her back and stabbed her. She
related that the man covered her mouth with one hand and
stabbed her neck maybe five times, maybe more.

11. At the conclusion of that approximately thirty
minute long interview, M.K. asked Todd, her father, to come
into her hospital room and show the police the video that
Todd showed M.K. the day before (July 10, 2020). At that
time, M.K. communicated to the police that the man with
medium dark hair, a white t-shirt, tan pants, and dark shoes
depicted in the video was the person that stabbed her. The
police never instructed Todd to show M.K. any surveillance
video or conduct any investigation related to M.K.'s
stabbing.

12. [Describing, among other things, additional
surveillance video footage obtained by the police]

(Record citations omitted; emphasis added.)
Based on these FOFs, the Circuit Court concluded that
constitutional due process guarantees were not implicated by

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M.K.'s identification of Willis as her assailant, because the
identification did not result from any improper or suggestive
conduct by the police, i.e., from any "state action." The
Circuit Court also concluded that even if a pretrial review of
reliability and admissibility were required, the procedure by
which M.K. identified Willis was reliable and not the product of
an improperly suggestive procedure. Finally, the Circuit Court
concluded that even if the identification was the result of an
impermissibly suggestive procedure, the identification was still
sufficiently reliable for presentation to the jury under the
totality of the circumstances, based on the court's assessment
of: (1) the thirteen factors set forth in Kaneaiakala and Hawai#i
Standard Jury Instruction 3.19 regarding show-up identifications;
and (2) the effect of the suggestiveness of the identification
procedure on the reliability of the identification.
Willis does not dispute the Circuit Court's findings
that the police did not direct Todd to show M.K. the video at
issue and that Todd's auntie, who supplied Todd with the video,
is not a police officer. Nevertheless, Willis contends that
M.K.'s identification of Willis arose from the functional
equivalent of a police show-up because only one person was
depicted in the video, it contains a date and time stamp
immediately preceding the attack, and the State adopted M.K.'s
identification from the video after she could not make an
identification from the blind sequential photographic lineup that
police showed her.
We assume without deciding the "state action" issue
that M.K.'s identification of Willis was obtained through an
impermissibly suggestive procedure that was subject to the
admissibility requirements established in Kaneaiakala. We
therefore review the Circuit Court's evaluation of the
Kaneaiakala factors, applying the clearly erroneous standard to
related factual determinations made by the Circuit Court and the
right/wrong standard to the court's conclusions of law. See 145
Hawai#i at 240, 450 P.3d 770.
Willis challenges the Circuit Court's evaluation of
Kaneaiakala factors 2, 4, 6, 8, 10, and 11 as to M.K.'s

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identification, which correspond to COLs 13, 17, 21, 23, 27, and
29, respectively. We address each of the Kaneaiakala factors
below, as Willis appears to argue that the Circuit Court
discounted or disregarded the challenged factors in relation to
others in making its totality-of-the-circumstances determination.

1. Opportunity to Observe (COLs 11 and 38)

The Circuit Court found that M.K. had an opportunity to
observe her assailant both before and after the attack, and set
forth the details of M.K.'s observations at those times. In sum,
"M.K. saw the guy that stabbed her both before and after the
stabbing; she clearly remembered aspects of the guy's attire, his
distinctive hairstyle, and his skin tone. She saw the guy from a
relatively close distance in an area with ample lighting; it was
the middle of the day."
Willis does not dispute this evaluation of factor 1.

2. Stress at Time of Observation (COL 13)

The Circuit Court found that M.K. was under some stress
before the attack and under immense stress during and after the
attack. Willis contends, without elaboration, that the Circuit
Court "improperly discounted" this factor.
It appears, however, that the Circuit Court considered
this factor and ultimately determined that M.K. clearly observed
her assailant before the attack, as well as seeing him flee after
the attack, findings that are supported by the testimony adduced
at the motion to suppress hearing. We "will not pass upon the
trial judge's decisions with respect to the credibility of
witnesses and the weight of the evidence, because this is the
province of the trial judge." Kaneaiakala, 145 Hawai#i at 240,
450 P.3d at 770 (quoting State v. Eastman, 81 Hawai#i 131, 139,
913 P.2d 57, 65 (1996)).

3. Ability to Describe the Person (COL 15)

Willis does not dispute the Circuit Court's finding
that it was "unclear to what extent M.K. could provide a
description of the person that stabbed her[,]" given the effects

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of her wounds, and she was finally able to communicate to the
police that her assailant was wearing a white t-shirt and pants.

4. Extent to Which Willis Fit the Description (COL 17)

The Circuit Court found that Willis was wearing a white
t-shirt and long pants in the various surveillance videos, and it
was "difficult to evaluate M.K.'s description beyond that because
it was very difficult for her to communicate with the police."
Willis contends that the Circuit Court "disregarded" that M.K.
provided a description of Willis "that was somewhat at odds (blue
jeans vs. khaki pants) with what was depicted in surveillance
videos . . . ."
However, the record does not establish that the Circuit
Court failed to consider this fact in evaluating the totality of
the circumstances. Indeed, the court acknowledged in COL 15 that
M.K. "believed the man's pants were light blue."

5. Cross-Racial or Ethnic Identification (COL 19)

Willis does not dispute the Circuit Court's finding
that it was unclear to what extent M.K.'s identification of
Willis was cross-racial.

6. Capacity to Make an Identification (COL 21)

The Circuit Court found that M.K. "had the capacity to
make an identification." Willis disagrees, arguing that "[t]here
was evidence that she was under the influence of drugs and had
just suffered life-threatening injuries and significant blood
loss." Willis argues, without any citation to the record, that
M.K. was "under the influence of methamphetamine and
benzodiazepines which would affect both her ability to perceive
and to remember events."
The record does not establish, however, that the
Circuit Court failed to consider these alleged factors in
evaluating the totality of the circumstances. Although M.K. was
told at the hospital that a report on her urine sample showed
traces of methamphetamine and benzodiazepine, there was no
evidence presented that M.K. was under the influence of drugs to

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an extent that would affect her ability to perceive and remember
the events surrounding the attack. There was also no evidence
presented that M.K.'s injuries and blood loss impaired her
ability to perceive events. Accordingly, the court found in COL
38 that "[t]here is no evidence that M.K. was impaired at the
time that she observed the guy that stabbed her." Based on our
review of the record, this finding is not clearly erroneous.

7. Ability to Identify Other Participants (COL 22)

Willis does not dispute the Circuit Court's conclusion
that this factor is inapplicable to M.K.

8. Ability to Identify Willis in a Lineup (COL 23)

The Circuit Court found that M.K. could not identify
anyone in the photographic lineup that she reviewed on July 11,
2020. Willis contends, without elaboration, that the court
"erroneously discounted" this factor.
However, the record does not establish that the Circuit
Court failed to consider this factor, as evidenced by COL 23
itself, or otherwise "discounted" this factor in evaluating the
totality of the circumstances.

9. Period of Time Between the Stabbing and the
Identification (COL 25)

Willis does not dispute the Circuit Court's finding
that M.K.'s identification of Willis occurred three days after
the stabbing and that this delay may have been due to the extent
of M.K.'s injuries and her resulting hospitalization.

10. Prior Contacts (COL 27)

The Circuit Court found that prior to July 8, 2020,
"M.K. had seen the guy that stabbed her three or four times in
the area around the beach but had never spoken to the man or had
any contact with the man." Willis contends, without elaboration,
that the court "disregarded" this factor.
However, the record does not establish that the Circuit
Court failed to consider this factor, as evidenced by COL 27
itself, in evaluating the totality of the circumstances.

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11. Certainty of the Identification (COL 29)

The Circuit Court found that: (a) on July 11, 2020,
M.K., doing her best to communicate with her injuries, informed
the police that the man depicted in the video shown to her by
Todd was the person that stabbed her; and (b) at the later
suppression hearing, M.K. testified that when she made the
identification, the person depicted in the video looked like the
person that stabbed her. Willis contends that the Circuit Court
"disregarded" that M.K. "was uncertain . . . when she was [first]
shown [the video by Todd] and the sequential photographic line-
up."
However, the record does not establish that the Circuit
Court failed to consider these facts. In FOF 7, the Circuit
Court found that when Todd initially showed M.K. the video at the
hospital, she mouthed the word "maybe." In FOF 9, the Circuit
Court found that when the photographic lineup was conducted on
July 11, 2020, she could not positively identify anyone.
Nothing in the record indicates that the Circuit Court failed to
consider these facts in evaluating the totality of the
circumstances.

12. Identification By Own Recollection (COL 31)

Willis does not dispute the Circuit Court's finding
that "[b]ased on M.K.'s credible testimony, her identification of
the person depicted in the surveillance video was the product of
her own recollection."

13. Any Other Evidence (COL 33)

Willis does not dispute the Circuit Court's conclusion
that this factor does not appear to be applicable.

14. Effect of Suggestiveness (COL 35)

The Circuit Court found that the police themselves did
not employ any suggestive identification procedures, because Todd
was acting on his own accord in showing M.K. the video, and there
was no evidence that Todd encouraged or pressured M.K. to

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identify the person depicted in the video. Although Willis
challenges the identification as the functional equivalent of a
police show-up, he does not contest the court's findings that
Todd's auntie was not a police officer, the police did not direct
Todd to show M.K. the video, and Todd did not encourage or
pressure M.K. to identify the person depicted in the video as her
assailant. The Circuit Court properly considered these factors
in evaluating the effect of the suggestiveness of the procedure
used to obtain M.K.'s identification of Willis.
The Circuit Court then assessed the "dispositive"
Kaneaiakala factors that contributed to the court's totality-of-
the-circumstances determination that M.K.'s identification was
sufficiently reliable for presentation to the jury. Based on our
review of the evidence adduced at the motion to suppress hearing,
we conclude that the Circuit Court did not clearly err in making
this determination. See 145 Hawai#i at 241, 450 P.3d 771.

C. Prosecutorial Misconduct

Willis contends that the DPA engaged in multiple acts
of misconduct that violated Willis's constitutional right to a
fair trial. We focus on one set of statements in the DPA's
closing argument that we find dispositive. Willis argues that
the DPA "committ[ed] deliberate misconduct by arguing to the jury
in closing, without evidence or basis in the record," that: (1)
after the attack on M.K., Willis was at the white sink depicted
in State's Exhibit 4, washing blood off his hands and face and
white t-shirt;8/ and (2) Willis's white t-shirt was blood stained
when he returned to Niu Valley some three hours after the attack.
During closing arguments, the DPA in fact made the
following statements:

Taylor Gray said when she saw the man who was on
[M.K.'s] back get up, she took a look at him, she saw him,

8/
State's Exhibit 4 was the surveillance video footage recovered by
the police from 4635 Kahala Avenue, which was close to where M.K. was stabbed.
At about 1:46 p.m. on the day of the attack, "the surveillance video depicted
a light skinned person with medium length curly hair, shirtless, tan pants,
and shoes running from the direction of the beach to a white utility work
sink. The light skinned person appeared to wash himself in the work sink and
then ran away." (Record citations omitted.)

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saw part of him, but she noticed that there was something on
his white shirt. She didn't explain what it was, but there
was something on the white shirt. But up to this point,
there's been nothing on the defendant's white shirt. So
what could it be? Blood? There was plenty of blood. Sand?
It's on a beach. We don't know.
But if you're the defendant, what do you do if you
have blood on your shirt? What do you do if you have blood
on your hands?
State's Exhibit 4.

Ladies and gentlemen, this is State's Exhibit 4. And
the time is 1:46:22. First of all, before we go, notice
defendant is here. No shirt because it's soiled. Pants,
light colored pants. Shoes, looks like some sort of marking
on the side of it.
Okay. Please run it to 1:46:43 and then stop it.
Okay. Stop.
Notice something in his left hand. Looks white. Most
likely it's his shirt.
Go to 45 please.

You notice he's turning, leaving the sink, and he's
got something behind his back curled up. It's white. State
submits that's his shirt. So we don't know whether he
washed the shirt at the sink, but we know from Edward Leal
that he washed his hands and his face because he had blood
on them.

(Emphasis added.) Minutes later, the DPA showed the jury State's
Exhibit 6, the surveillance video footage recovered from 5605
Haleola Street. The DPA argued:

Shirt is soiled. So what happened was that after the
defendant arrived to the beach with a clean white [t]-shirt,
after he stabbed [M.K.], he got blood on it, possibly sand.
Tried to wash it out, and disappeared for two hours.

Although Willis 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 weakness of the
evidence against the defendant, a reviewing court will vacate a
conviction if there is a reasonable possibility that the conduct

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might have affected the trial's outcome.'" Id. (quoting Riveira,
149 Hawai#i at 431, 494 P.3d at 1164).
In applying this standard of review, we first address
whether the DPA's statements constituted misconduct. During
closing argument, a prosecutor "is permitted to draw reasonable
inferences from the evidence." State v. Basham, 132 Hawai#i 97,
112, 319 P.3d 1105, 1120 (2014) (ellipsis omitted) (quoting State
v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996)).
However, [p]rosecutors are . . . forbidden from introducing new
information or evidence in closing argument." Hirata, 152 Hawai#i
at 33, 520 P.3d 231 (citing Basham, 132 Hawai#i at 113, 319 P.3d
at 1121 ("Closing arguments are not the place to introduce new
evidence outside the safeguards of the Hawai#i Rules of
Evidence.")); see also State v. Yip, 92 Hawai#i 98, 111, 987 P.2d
996, 1009 (App. 1999) ("In closing arguments, it is improper to
refer to evidence which is not in the record or has been excluded
by the court.").
Here, the DPA went well beyond drawing reasonable
inferences from the evidence in arguing to the jury that, after
the attack on M.K., Willis was at the white sink washing blood
off his hands and face. We first note that at trial, Leal, who
testified that he saw a man washing his face and arms in the sink
sometime between one and two p.m. that day, did not identify
Willis as the person depicted in Exhibit 4, and Corporal Motas,
who had mentored Willis, was asked but was not able to identify
Willis as the person depicted in Exhibit 4. In any event, Leal
did not testify that Willis "washed his hands and his face
because he had blood on them." (Emphasis added.) He stated only
that the man he saw that day "was washing his arms, here, and
also wash[ed] his face a little." The DPA's statement to the
jury thus referred to evidence of blood on Willis that was not in
the record and, indeed, misrepresented evidence that was in the
record. This misstatement constituted misconduct.
The DPA's statement minutes later, "So what happened
was that after [Willis] arrived to the beach with a clean white
[t]-shirt, after he stabbed [M.K.], he got blood on it,"
piggybacked on the misstatement of Leal's testimony and also

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introduced new evidence of blood in closing argument. Based on
our review of the record, it appears that the State presented no
evidence that the stains on the white t-shirt depicted in the
videos at issue were or even appeared to be blood. We thus
conclude the DPA's statement that "after he stabbed [M.K.],
[Willis] got blood on [his t-shirt]" also amounted to misconduct.
We turn now to determining whether there is a
reasonable possibility that this misconduct "might have affected
the trial's outcome." Hirata, 152 Hawai#i at 33, 520 P.3d at 231
(quoting Riveira, 149 Hawai#i at 431, 494 P.3d at 1164). We
consider three factors in applying this standard: (1) the nature
of the DPA's misconduct; (2) the promptness or lack of a curative
instruction; and (3) the strength or weakness of the evidence
against Willis. Id. at 34, 520 P.3d at 232.
In considering the first factor, we note again that the
DPA misrepresented Leal's testimony and referred to evidence of
blood on Willis and on his shirt that was not in the record.
This blood evidence was woven into the State's case to
incriminate Willis, and clearly could have been viewed by the
jury as circumstantial evidence that Willis stabbed M.K. The
harm from this inference "cannot be overstated" given that the
State presented no evidence that the stains were blood and, if
blood, that it was M.K.'s blood. State v. Pitts, 146 Hawai#i 120,
133, 456 P.3d 484, 497 (2019). The seriousness of the misconduct
is also exacerbated by the State's presumed knowledge that: (1)
no blood was recovered from the white sink, which had been seized
and analyzed by the HPD; and (2) a white shirt belonging to
Willis had been suppressed, having been seized in an illegal
search, and when analyzed, was found not to have blood on it.9/

9/
Defense counsel attested to these facts in a declaration filed in
the Circuit Court, and the State does not dispute them. Instead, the State
argues that there is no evidence that the white shirt seized in the illegal
search was the same shirt Willis was wearing when he allegedly stabbed M.K.,
and that even if it was, it could easily have been washed clean of any DNA
evidence before it was discovered in the illegal search. This misses the
point. The State presented no evidence that the stains on the white t-shirt
depicted in the videos were blood. By waiting until closing argument to
present this "evidence" to the jury, the State precluded Willis from
confronting it. Further, because the illegally seized shirt was suppressed,
the State could not offer explanations as to why it did not contain evidence
of blood.

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See Willis, 150 Hawai#i at 238, 241, 500 P.3d at 423, 426
(affirming suppression of the shirt).
We next consider whether the court gave prompt curative
instructions. Riveira, 149 Hawai#i at 433, 494 P.3d at 1166.
Here, the defense did not object to the challenged statements by
the DPA, and the Circuit Court did not step in and give a
curative instruction. The State appears to argue that the
Circuit Court's general instruction to the jury to consider only
the evidence presented, and that statements by lawyers are not
evidence, cured any prejudice caused by the DPA's challenged
statements. However, the general instructions given to the jury
did not neutralize the DPA's misconduct. See id.
Finally, we conclude that the evidence of Willis's
guilt, though sufficient to support the verdict (see infra), was
not overwhelming. No forensic evidence was presented of blood
found on Willis or the clothing he was wearing. Because M.K. was
the only person that positively identified Willis as her
assailant, the case depended heavily on the credibility of M.K.
These considerations weigh against a finding of harmlessness.
See State v. Pitts, 146 Hawai#i 120, 133, 456 P.3d 484, 497
(2019); State v. Underwood, 142 Hawai#i 317, 329, 418 P.3d 658,
670 (2018) ("When a conviction is largely dependent on a jury's
determination as to the credibility of a complainant's testimony,
we have held that the evidence of the offense is not so
'overwhelming' that it renders the prosecutor's improper
statements harmless beyond a reasonable doubt.").
Based on our evaluation of the three relevant factors,
we conclude that the DPA's improper statements about blood on
Willis and his shirt were not harmless beyond a reasonable doubt.
Accordingly, there is a reasonable possibility that the
misconduct may have contributed to Willis's conviction, and the
conviction must be vacated.

D. Motions for Judgment of Acquittal and for New Trial

Willis contends that the Circuit Court erred in denying
his motion for judgment of acquittal because "[n]o reasonable
juror could fairly conclude guilt beyond a reasonable doubt from

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the evidence presented by the State even when viewed in the light
most favorable to the State[.]" He similarly contends that the
Circuit Court erred in denying his motion for a new trial because
"the conviction was not supported by substantial or sufficient
evidence" and the court ignored the alleged prosecutorial
misconduct. Willis argues that the State presented no evidence
of motive for the attack, did not recover a weapon used in the
attack, and presented no forensic evidence linking Willis to the
attack. He also challenges the reliability of M.K.'s
identification of Willis as her assailant.
We review a ruling on a motion for judgment of
acquittal by applying the same standard as the trial court,
namely, "whether, upon the evidence viewed in the light most
favorable to the prosecution and in full recognition of the
province of the trier of fact, the evidence is sufficient to
support a prima facie case so that a reasonable mind might fairly
conclude guilt beyond a reasonable doubt." State v. Angei, 152
Hawai#i 484, 492, 526 P.3d 461, 469 (2023) (quoting State v. Jhun,
83 Hawai#i 472, 481, 927 P.2d 1355, 1364 (1996)). "The granting
or denial of a motion for new trial is within the sound
discretion of the trial court and will not be disturbed absent a
clear abuse of discretion." State v. Williams, 149 Hawai#i 381,
391, 491 P.3d 592, 602 (2021).
In order to convict Willis of attempted murder in the
second degree, the State was required to prove beyond a
reasonable doubt that he intentionally engaged in conduct that
was a substantial step in a course of conduct intended or known
to cause M.K.'s death. See HRS §§ 705-500, 707-701.5. The
primary dispute at trial centered on identification of Willis as
M.K.'s assailant. "The testimony of one percipient witness can
provide sufficient evidence to support a conviction." State v.
Pulse, 83 Hawai#i 229, 244, 925 P.d 797, 812 (1996) (citing
Eastman, 81 Hawai#i at 141, 913 P.2d at 67). Appellate courts
"give 'full play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable inferences
of fact.'" Angei, 152 Hawai#i at 492, 526 P.3d at 469 (quoting
Juhn, 83 Hawai#i at 481, 927 P.2d at 1364).

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M.K., who appears to be the only eyewitness who saw her
assailant in close proximity both before and after the attack,
identified the person depicted in Todd's video as her attacker,
and later identified Willis at trial. The surveillance videos
presented by the State largely corroborated M.K.'s description of
her attacker.
Viewing the evidence in the "light most favorable to
the prosecution and in full recognition of the province of the
trier of fact," there was sufficient evidence to support a prima
facie case so that a reasonable mind might fairly conclude that
Willis was M.K.'s assailant and was guilty beyond a reasonable
doubt of attempted murder in the second degree. See Angei, 152
Hawai#i at 492, 526 P.3d at 469. The Circuit Court's denial of
Willis's motion for judgment of acquittal was not erroneous.
As to the denial of Willis's motion for a new trial,
the evidence, when viewed in the light most favorable to the
State, was sufficient to support Willis's conviction. However,
the Circuit Court erred in denying Willis's motion for a new
trial based on prosecutorial misconduct, for the reasons
previously discussed. See Williams, 149 Hawai#i at 397, 491 P.3d
at 608.
III. Conclusion
For the reasons discussed above, we vacate the Amended
Judgment of Conviction and Sentence, entered on July 20, 2022, in
the Circuit Court of the First Circuit, and remand this case for
a new trial.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Eric A. Seitz,
Della A. Belatti,
Jonathan M.F. Loo, and /s/ Keith K. Hiraoka
Kevin Yoklen Associate Judge
for Defendant-Appellant

Brian Vincent, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee

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