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High court vacates wife assault conviction

In 3-2 decision, case was sent back for retrial

A Kihei man’s conviction for assaulting his then-wife was vacated by the state Supreme Court, which found that a deputy prosecutor’s improper statements to the jury violated the defendant’s right to a fair trial.

In a 3-to-2 opinion published Tuesday, the court ordered that Sean Conroy’s case be sent back to 2nd Circuit Court for a new trial.

In a 2012 trial, Conroy was found guilty of a lesser charge of second-degree assault for punching his wife in the face after they argued and struggled over keys on March 14, 2011, in the parking lot of their Southpointe apartment in Kihei. Her nose was fractured on both sides, her cheekbone also was fractured and her tooth was chipped. The swelling on her face caused a large blood clot that permanently restricted the movement of the left side of her face, according to trial testimony.

Conroy testified he was defending himself after his wife punched him in the temple and kicked him in the groin.

Originally charged with first-degree assault, Conroy was found guilty of second-degree assault. In May 2012, he was sentenced to a 60-day jail term as part of five years’ probation, but the jail term was suspended while he appealed the case.

Attorney Matthew Kohm handled the appeal, which focused on the prosecutor’s closing argument.

The state Supreme Court majority opinion, written by Justice Michael Wilson, said the prosecutor tried to convince the jury “that Conroy’s intent was not to defend himself but to manifest his anger and jealousy by making ‘sure that she didn’t give that smile to any other man.’ ”

The opinion said “it is apparent the prosecutor committed misconduct at least eight times in violation of Conroy’s right to a fair trial — specifically during closing argument.”

“The nature of the misconduct committed by the prosecutor was one of repeated improper appeal to the jury to find Conroy guilty based on sympathy for (his wife) and the need to heal her — and to improperly call for the jury to deliver justice not based on the facts, but on the need to provide revenge in the form of a guilty verdict,” the opinion said. “Eight times improper statements were made to the jury. In particular, the prosecutor continued to improperly explain to the jury that they should provide justice to (Conroy’s wife) after the court had previously sustained the objection to those same arguments.”

In one statement, the prosecutor said, “You break my heart, I break your face. That’s what this case is about.”

The court opinion said that statement, which the judge ordered the jury to disregard, “lacked any evidentiary support.”

Before the Supreme Court opinion was issued, the Intermediate Court of Appeals had determined that only one of the prosecutor’s statements constituted misconduct and concluded any related error was harmless.

To determine whether the misconduct was harmless, the court considered three factors — the nature of the alleged misconduct, the promptness or lack of a curative instruction to the jury and the strength or weakness of the evidence against the defendant.

The Supreme Court opinion said the first two factors weighed in favor of finding the error was harmful.

The opinion said “the prosecutorial misconduct was protracted, repeated and extensive in nature” and “the trial court’s attempts to cure the effects of the misconduct were insufficient.”

As for the strength of the evidence, the opinion said there were no witnesses to the altercation other than Conroy and his wife and the credibility of his testimony depended on whether she had slapped and kicked him.

“The strength of the evidence in support of self-defense, the protracted nature of the prosecutorial misconduct, and the ineffective curative instructions of the court cause us to conclude that the misconduct was not harmless beyond a reasonable doubt,” the opinion said.

Justices Sabrina McKenna and Richard Pollock joined Wilson in the majority.

In a dissenting opinion, Chief Justice Mark Recktenwald agreed that the prosecutor’s statements were improper but said “the statements were harmless beyond a reasonable doubt.”

“Quite simply, there was overwhelming evidence that the amount of force Conroy used was not ‘immediately necessary’ for his self-protection, and there is no reasonable possibility that the prosecutor’s improper statements might have contributed to his conviction,” Recktenwald’s opinion said.

“Contrary to the suggestion of the majority, this was not a mere credibility contest,” the opinion said.

The opinion noted the disparity in size between Conroy, who was 6-foot-4 to 6-foot-5 and weighed 240 to 250 pounds, and his wife, who was 5 feet 9 inches tall and weighed 120 pounds. “Additionally, Conroy punched (his wife) twice with enough force to break her nose in several places and fracture her cheekbone, breaking his own hand in the process,” the opinion said.

The minority opinion found “overwhelming evidence” both of Conroy’s guilt and disproving his self-defense claim.

“In Conroy’s case, proper application of the three-part test makes clear that the evidence against Conroy was overwhelming, and the nature of the misconduct was not so egregious as to require a new trial,” the opinion said.

Justice Paula Nakayama joined Recktenwald in dissenting.

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