State v. McGhee., 140 Haw. 113

Background

McGhee was charged with second-degree terroristic threatening after an incident at Alley Cat; bench trial where only the complainant (Kearney) and McGhee testified.
Kearney testified on direct that she felt threatened by McGhee and later went outside; on cross she said she was not afraid.
The State rested; defense presented McGhee’s testimony that he waited outside and was not yelling and did not see Kearney.
During rebuttal closing, the prosecutor disclosed and read a portion of a prior written police statement (the “252 Statement”) in which Kearney said “At that time I was afraid and call the police,” although that statement had not been admitted into evidence.
Immediately after the prosecutor read the 252 Statement the district court found McGhee guilty, citing credibility. McGhee appealed; ICA affirmed (summary disposition) but one judge dissented. The Hawai‘i Supreme Court granted certiorari.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (McGhee)	Held
Whether the prosecutor may reference/read a prior out-of-court statement not admitted into evidence during closing argument	The State said any objection was waived and the comment was harmless; subjective fear is not an element of the offense so the 252 Statement was irrelevant	McGhee said reading the 252 Statement in rebuttal introduced inadmissible testimonial hearsay after Kearney left the stand, depriving him of confrontation and cross-examination	It was improper to reference/read the 252 Statement in closing; closing is not a place to introduce new evidence and the statement was outside legitimate argument bounds
Whether a complainant’s subjective fear is relevant in a terroristic threatening prosecution	The State argued a victim’s subjective fear is not itself an element and thus not material; any 252 Statement would be cumulative or irrelevant	McGhee argued the statement was prejudicial and used to bolster credibility when it contradicted in-court testimony on cross	The court held a complainant’s fear (or lack of it) is relevant circumstantial evidence to whether a statement was a “true threat” and to the defendant’s state of mind (intent or reckless disregard)
Whether the error was harmless or requires reversal	The State claimed any error was harmless beyond a reasonable doubt given other evidence and claimed waiver	McGhee argued the untimely disclosure was highly prejudicial because the case turned on credibility and he had no opportunity to confront the statement	The court found plain error that affected substantial rights: prosecutor’s misconduct was not harmless (factors considered: nature of conduct, lack of cure, weak/contested evidence). Conviction vacated and remanded for further proceedings

Key Cases Cited

State v. Nofoa, 135 Hawaiʻi 220, 349 P.3d 327 (prosecutor may not introduce facts not in evidence in closing; timing can preclude defense response)
State v. Basham, 132 Hawaiʻi 97, 319 P.3d 1105 (closing argument is not the place to introduce new evidence)
State v. Quitog, 85 Hawaiʻi 128, 938 P.2d 559 (closing argument may draw inferences but must be consistent with evidence)
State v. Nakachi, 7 Haw. App. 28, 742 P.2d 388 (actual terrorization is not an element but is evidence of the material elements; assess whether threats were uttered in reckless disregard of risk of terrorizing)
State v. Valdivia, 95 Hawaiʻi 465, 24 P.3d 661 (constitutional requirement that a "true threat" be objectively capable of inducing reasonable fear)