No. SCWC-23-0000013, Tuesday, June 18, 2024, 2 p.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. OSCAR CARDONA, Petitioner/Defendant-Appellant.  

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The above-captioned case was set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument was also livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorneys for Petitioner OSCAR CARDONA:

     Myles S. Breiner, Sean Fitzsimmons, Kyle T. Dowd, and Andrew Strand of the Law Office of Myles S. Breiner & Associates, ALC

Attorney for Respondent STATE OF HAWAI‘I:  

     Brian Vincent, Deputy Prosecuting Attorney  

NOTE:     Order accepting Application for Writ of Certiorari, filed 05/07/24.

COURT:     Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This case involves an altercation among strangers on Kuhio Beach that ended in the stabbing death of one of them.   Petitioner/Defendant/Appellant Oscar K. Cardona, Jr. (“Cardona”) was charged with, tried for, and convicted of murder in the second degree. 

On appeal to the Intermediate Court of Appeals (“ICA”), Cardona raised prosecutorial misconduct and instructional error.  Specifically, Cardona asserted the deputy prosecuting attorney (“DPA”) improperly (1) repeatedly asked leading questions of state witnesses; (2) asked Cardona to demonstrate what happened during the altercation with a pen because the DPA “didn’t want to give [Cardona] the knife”; (3) suggested to the jury in closing argument that Cardona was a liar; and (4) inserted his personal opinion about Cardona’s eyesight, among other things, in closing argument.  Cardona also argued that the trial court erred in (1) providing a “Voluntary Act” jury instruction; and (2) failing to provide a State v. Gabriel limiting instruction concerning how the jury was to interpret testimony that police officers have had prior contacts with a defendant.  The ICA affirmed Cardona’s conviction and sentence in a summary disposition order (“SDO”).

Cardona timely filed an application for writ of certiorari presenting the following questions:

A. Did the [ICA] gravely err in its [SDO] by relying upon facts not in evidence to rationalize and otherwise justify the DPA’s improper conduct, and did the ICA gravely err in its SDO by analyzing the DPA’s misconduct out of context?

B. Did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by offering his personal opinions on witness credibility, and did the ICA gravely err in its SDO by concluding that the DPA did not commit prosecutorial misconduct by attacking Petitioner’s credibility based on his defendant party status?

C. Did the ICA gravely err in its SDO by concluding that although the DPA’s contumacious and repeated use of leading questions was “improper,” the same was “harmless beyond a reasonable doubt” and by also concluding that “the DPA’s remarks were either ‘benign statements,’ or ‘reasonable inferences.’ that could be drawn from the record facts?”

D. Did the ICA gravely err in its SDO by concluding that the trial court did not commit reversible error by failing to provide a State v. Gabriel limiting instruction?

E. Did the ICA gravely err in its SDO by concluding the trial court did not commit reversible error by sua sponte providing the “Voluntary Act” jury instruction?