No. SCWC-22-0000267, Thursday, March 21, 2024, 10 a.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. ZETH BROWDER, 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, 2^nd 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 ʻŌlelo53.

Attorney for Petitioner/Defendant-Appellant ZETH BROWDER:

     Walter J. Rodby

Attorney for Respondent/Plaintiff-Appellee STATE OF HAWAI‘I:

     Donn Fudo, Deputy Prosecuting Attorney  

NOTE:  Order accepting Application for Writ of Certiorari, filed 02/22/24.

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

Brief Description:

The State alleges Petitioner/Defendant-Appellant Zeth Browder (Browder) broke into the Complaining Witness’s (CW) camping tent and sexually assaulted her.  The State charged Browder with two counts of Sexual Assault in the First Degree, two counts of Sexual Assault in the Third Degree, one count of Burglary in the First Degree, one count of Kidnapping, and one count of Tampering with Physical Evidence.  After a jury trial in the Circuit Court of the Third Circuit, Browder was found guilty on all counts.

Browder appealed to the Intermediate Court of Appeals (ICA) and raised various issues, including that the Deputy Prosecuting Attorney (DPA) made improper statements during closing argument that constituted prosecutorial misconduct.  In a Memorandum Opinion issued on October 20, 2023, a majority of the ICA panel vacated Browder’s conviction on grounds that certain statements by the DPA were improper, but also concluded it was not prosecutorial misconduct when the DPA stated with regard to CW’s conduct after the incident that: “This is consistent with someone who’s been traumatized.”  In a concurring opinion, Associate Judge Katherine G. Leonard wrote that she agreed with vacating Browder’s conviction but would rely on the additional basis that the DPA committed prosecutorial misconduct by making the “traumatized” remark during closing argument, concluding the DPA’s remark and the circumstances were not distinguishable from State v. Hirata, 152 Hawai‘i 27, 520 P.3d 225 (2022).  The ICA’s judgment on appeal was entered on November 21, 2023.

Browder filed an application for writ of certiorari to this court, which we accepted.  The issue before this court is whether the ICA majority erred in concluding that the DPA’s “traumatized” remark did not constitute prosecutorial misconduct.