State v. Tuua, 250 P.3d 273

Tuua was charged with second-degree assault for striking bouncer Brown with a beer bottle during a bar fight.
Trial centered on who threw the bottle; Brown and Inglish testified Tuua did, Hamayelian testified Tuua held an uncollected bottle but did not see the throw.
A stipulation anticipated Officer Polanco would testify Brown said Ikaika Kawai hit Brown with a bottle.
Tuua and his half brother Carter testified that Carter threw the bottle.
During closing and rebuttal, the deputy prosecuting attorney made statements about Carter’s credibility and about consequences of the verdict; defense objected but the court overruled.
Tuua was convicted of Assault in the Second Degree; the ICA affirmed, and this court granted certiorari to review prosecutorial conduct and related issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prosecutor's rebuttal comments were improper prosecutorial misconduct	Tuua	Tuua argues comments went beyond evidence and commented on consequences; biased the jury	Yes, improper and potentially prejudicial
Whether the improper comments were harmless beyond a reasonable doubt	Tuua	Not harmless; credibility of witnesses pivotal and no curative instruction given	No, not harmless; vacate and remand for new trial
Whether ICA properly reviewed the misconduct and harmlessness standard	Tuua	ICA correctly applied standards but erred in harmlessness assessment	Vacate ICA judgment; remand for new trial
Whether a curative instruction was required and given	Tuua	Curative instruction not adequately issued	Failure to issue curative instruction weighed against harmlessness
Whether the case should be remanded for new trial rather than affirmed	Tuua	Trial record supports conviction if misconduct were harmless	Vacate and remand for new trial

State v. Rogan, 91 Hawai`i 405, 984 P.2d 1231 (1999) (harmless beyond a reasonable doubt standard; factors for assessing misconduct)
State v. Sawyer, 88 Hawai`i 325, 966 P.2d 637 (1998) (definition of harmless error framework)
State v. Kiakona, 110 Hawai`i 450, 134 P.3d 616 (App. 2006) (prosecutorial misconduct review; harmlessness analysis)
State v. McGriff, 76 Hawai`i 148, 871 P.2d 782 (1994) (standard for evaluating improper comments in closing arguments)
State v. Lincoln, 3 Haw.App. 107, 643 P.2d 807 (1982) (early articulation of guidance on counsel arguments not evidence)
State v. Cordeiro, 99 Hawai`i 390, 56 P.3d 692 (2002) (prosecutor may argue witness credibility based on motive if supported by record)
State v. Carvalho, 106 Hawai`i 13, 100 P.3d 607 (App. 2004) (curative/instruction considerations in prosecutorial misconduct contexts)
State v. Maluia, 107 Hawai`i 20, 108 P.3d 974 (2005) (assessment of when prosecutor questions about veracity are harmless)