STATE OF HAWAII, Petitioner/Plaintiff-Appellee, vs. TIMOTHY A. WALSH, Respondent/Defendant-Appellant. (Assault in the Second Degree)
Attorney(s) for Petitioner/Plaintiff-Appellee:
Benjamin M. Acob, Peter A. Hanano
Attorney(s) for Respondent/Defendant-Appellant:
John M. Tonaki, Craig W. Jerome
NOTE: Order assigning Circuit Court Judge Karl K. Sakamoto, due to a vacancy, filed 9/29/10.
NOTE: Order accepting Application for Writ of Certiorari, filed 10/25/10.
COURT: MER, CJ; PAN, SRA, JED, JJ; Circuit Court Judge Karl K. Sakamoto, due to a vacancy.
Petitioner State of Hawaii (State) applied for a writ of certiorari to review the judgment of the Intermediate Court of Appeals (ICA) entered pursuant to the ICA’s May 26, 2010 published opinion in State v. Walsh, 123 Hawaii 284, 231 P.3d 1001 (2010). The ICA vacated the judgment of the Circuit Court of the Second Circuit, which convicted Timothy Walsh (Walsh) of Assault in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707-711(1)(b) (Supp. 2009) and remanded for retrial.
The State contends that the ICA gravely erred by holding that 1) the prosecutor’s closing argument during trial improperly accused Walsh of tailoring his testimony to other evidence at trial; and 2) the alleged error was noticeable as plain error. The State also argues that, even if the prosecutor’s statements were improper and are noticeable as plain error, they were harmless beyond a reasonable doubt because the evidence against Walsh was overwhelming.