On July 19, 2011, the ICA issued its opinion in State v. Moore, No. 3000 (7/19/11, Unpublished, ICA, Summary Disposition Order, by: Foley, Presiding Judge, Leonard and Ginoza, JJ.). This was an appeal from the Family Court of the First Circuit, Hon. Patrick Border, presiding. On the briefs were Linda C.R. Jameson, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen Tsushima, Esq. for Plaintiff-Appellant.
Defendant was convicted of violating a temporary restraining order. He raised numerous issues, including:
A. The defense did not object when the complainant made references to another "incident" and to another "case" while testifying at trial. No objection made at trial, so reviewed for plain error.
The complainant's first reference to another incident occurred during direct examination by the State. In explaining how she reported the incident with Moore at the bus stop, the complainant testified she first tried to call 911 on the day of the incident, then contacted the prosecutor's office the following Monday, and finally went to the police station located in Honolulu. The prosecuting did solicit any more information about this incident and the family court did not commit plain error by not striking the reference to this other incident and not issuing a cautionary instruction.
The complainant's second reference, this time to another "case," was made during cross-examination by defense counsel. The line of questioning dealt with whether the complainant, who is not a U.S. citizen, was seeking permanent citizenship under the Violence Against Women Act (VAWA). The defense's theory of the case was that the complainant was falsely accusing Moore because she wanted to gain citizenship pursuant to the VAWA, and thus her testimony about another case with her immigration attorney is relevant to this theory. The complainant's reference to the other case was brief and did not contain any specifics. No plain error in not striking the reference to a second case and not issuing cautionary instructions.
Moore also asserts that it was error for the family court to admit into evidence Defense Exhibit D, an email that the complainant sent to people she knew requesting supporting letters for her immigration application for a U-visa under the VAWA. Because this exhibit was central to the defense's theory of the case, the family court did not commit plain error by admitting it.
B. Moore argues that he was denied effective assistance of counsel because his trial counsel failed to object to the complainant's testimony regarding the "other incident" and the "other case," and further, his trial counsel admitted Defense Exhibit D into evidence.
In the instant case, Moore fails to meet his burden in establishing how the complainant's two fleeting references to a separate incident and another case led to either the withdrawal or substantial impairment of any meritorious defense. Rather, evidence that the complainant reported another incident to the police or that she had another case with her immigration attorney were both consistent with the Defendant’s theory of the case.
Additionally, trial counsel's decision to enter Defense into evidence, including the third page, was part of strategy in presenting the defense's theory that the Exhibit D the trial complainant was making the allegations against Moore to obtain a visa under the VAWA. Here, defense counsel sought to challenge the complainant's motive in accusing Moore and utilized complainant's email to demonstrate her alleged motive and did not arise to ineffective assistance of counsel.
C. Finally, Moore takes issue with the following remarks of the deputy prosecutor: "We heard a lotta testimony from [the complainant] yesterday and then today. I think bottom line [she] has absolutely no motive to lie. She has no motive . . . to make up a story that there has been a violation of a temporary restraining order." (Emphasis added). Here, the deputy prosecutor's comment was addressing the defense's theory of the case (i.e., that the complainant made up the incident at the bus stop to obtain citizenship under the VAWA). “Although prosecutors should refrain from stating personal opinions during closing arguments, the single use of the phrase "I think" in this case does not rise to the level of misconduct.”
Affirmed.
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