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NO. CAAP-18-0000591

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

STEVEN C. ALONGI, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CRIMINAL NO. 1CPC-17-0001258)

MEMORANDUM OPINION

(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

Defendant-Appellant Steven C. Alongi, also known as

Steven Clark Alongi, appeals from the "Judgment of Conviction and

Probation Sentence" entered by the Circuit Court of the First

Circuit on June 26, 2018.1 For the reasons explained below, we

affirm the Judgment.

On September 8, 2017, Alongi was charged by felony

information and non-felony complaint with (1) Unauthorized Entry

Into Motor Vehicle in the First Degree and (2) Assault in the

Third Degree. He pleaded not guilty.

Jury trial began on January 17, 2018. The complaining

witnesses were spouses Julia and Anthony. They went through the

Kunia Wendy's drive-thru on April 24, 2017. Julia was driving;

Anthony was sitting in the passenger seat. They got their food. 

Julia reversed into a handicap stall in the parking lot. A

1 The Honorable Paul B.K. Wong presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000591

07-OCT-2022

07:51 AM

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vehicle drove into the parking lot and reversed into the handicap

stall on the passenger side of Julia's car. The man driving the

vehicle stared at them aggressively. Julia stared back at him. 

The man started to film Julia and Anthony. Julia reached for her

phone to film the man. She then realized that she forgot to put

up her handicap placard; she put the placard up and asked the man

if that was the problem. An argument followed. Anthony called

the police.

While Anthony was on the phone, the man walked to their

car, reached in, and started punching Anthony. Julia got out and

walked around the back of her car; however, the man got back into

his car and started it. Julia said, "yeah, that's what I

thought." The man turned off his car, got out, and asked her

"what did you think?" Julia told the man, "that you're a fuckin'

coward." The man punched Julia in the mouth. Julia punched him

back in the mouth. The man punched Julia about four more times

on the left side of her face and she fell to the ground.

Anthony testified that two persons then intervened. 

Julia believed that one was a customer and the other was a

Wendy's employee. The man, however, got in his car and "sped out

of the parking lot."

Julia identified Alongi as the man that assaulted them. 

The deputy prosecuting attorney (DPA) asked Julia: "Are you

certain that the defendant sitting in the courtroom here today is

the man that punched you and your husband on April 24th of 2017?" 

She responded, "You know, there's always that little bit of

doubt."

Anthony also testified that he participated in the

photographic lineup conducted by the police. He told the

officer, "I'm not sure. I -- I don't remember exactly, I can't

identify." At trial, however, Anthony testified that he was

absolutely certain Alongi was the man who reached in the car

window and punched him.

Gabriel Billimon testified at trial. He was working at

Wendy's on the day of the incident. He took out the trash. He

walked past two vehicles — a silver-looking SUV and a grayish

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colored four-door Chevy. There appeared to be one person in the

Chevy and two people in the SUV. Billimon heard "somebody

screaming stop, stop what you doing." He looked back and saw the

driver of the Chevy punching a male in the passenger seat through

the window of the SUV. A woman got out of the driver's side of

the SUV and told the driver of the Chevy to stop what he was

doing. The driver of the Chevy walked toward the woman and began

"blowing the lady[,]" or hitting her with both hands. The driver

of the Chevy hit the woman about six times before she fell to the

ground. A customer then approached the driver of the Chevy and

the woman, and the driver of the Chevy started to back off. 

Billimon walked up behind the driver of the Chevy and hit him in

the thigh while he was getting into his car, to prevent him from

leaving, but he was able to drive off.

Billimon identified Alongi as the driver of the Chevy. 

Billimon had also identified Alongi in the photographic lineup

conducted by the police. He explained that he saw Alongi at

least twice before, "sleeping in the [Wendy's] parking lot in his

car." On those occasions, his boss would instruct him to tell

Alongi he could not park there and Alongi would leave the

premises. Billimon stated he was "[h]undred percent" certain

that Alongi was "the man that [he] had seen on those prior

occasions, the man that [he saw] punching those people, [and] the

same man that [he] identified . . . in court[.]"

The jury found Alongi guilty as charged on both counts. 

The Judgment was entered on June 26, 2018. This appeal followed.

POINTS OF ERROR

Alongi raises five points of error:

1. "The inadmissible and prejudicial expert/

pseudo-expert opinions on Alongi's guilt

offered by Juror Croucher and Juror Nguyen

tainted the jury";

2. "The Circuit Court abused its discretion in

denying Alongi's first motion for mistrial 

based on the [DPA's] misconduct in adducing

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Detective Carreira's highly prejudicial

comments";

3. "The Circuit Court abused its discretion in

denying Alongi's second motion for mistrial

based on Julia's admitted violation of the

witness exclusionary rule";

4. "Alongi was deprived of his constitutional

right to testify where his stated decision

not to testify was forced upon him by the

[deputy public defender]"; and

5. "There was no substantial evidence to support

Alongi's convictions."

STANDARDS OF REVIEW

1. A trial court has discretion to regulate voir dire

to keep the questioning within reasonable bounds to assist in

impaneling an impartial jury. State v. Churchill, 4 Haw. App.

276, 279, 664 P.2d 757, 760 (1983) (citing Hawai#i Rules of Penal

Procedure Rule 24(a)).

2. and 3. The denial of a motion for mistrial "is

within the sound discretion of the trial court and will not be

upset absent a clear abuse of discretion." State v. Pasene, 144

Hawai#i 339, 365, 439 P.3d 864, 890 (2019) (citing State v.

Furutani, 76 Hawai#i 172, 178-79, 873 P.2d 51, 57-58 (1994)).

4. The validity of a criminal defendant's right to

testify is a question of constitutional law reviewed under the

right/wrong standard. State v. Celestine, 142 Hawai#i 165, 169,

415 P.3d 907, 911 (2018) (citing State v. Gomez-Lobato, 130

Hawai#i 465, 468-69, 312 P.3d 897, 900-01 (2013)). 

5. When a criminal defendant challenges the

sufficiency of the evidence to support a conviction, the evidence

must be considered in the strongest light for the prosecution. 

See State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115

(2010). 

The test on appeal is not whether guilt is established

beyond a reasonable doubt, but whether there was substantial

evidence to support the conclusion of the trier of fact.

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Substantial evidence as to every material element of the

offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion.

Id. (cleaned up).

DISCUSSION

1. The circuit court did not plainly err by

not sua sponte striking voir dire

responses given by two potential jurors.

Alongi argues that during voir dire two potential

jurors — Croucher and Nguyen — impermissibly expressed "expert/

pseudo-expert opinions" that Alongi was guilty. Croucher

disclosed that he was a psychologist and "an active member of the

Center of Law and Science, and that's kind of like bridging

neuropsychology and law." Nguyen disclosed that he grew up "in a

low income neighborhood" and had "seen many things. . . . I

witnessed violence, murder." Both expressed opinions that Alongi

was guilty. Alongi did not object during the voir dire or move

to strike Croucher's or Nguyen's opinions;2 accordingly, we

review for plain error.

After the jury was sworn but before opening statements

were given, the circuit court instructed the jury:

In terms of considering what is evidence and what is

not, again, evidence comes in the form of sworn testimony of

witnesses and any exhibits received into evidence.

A question asked by a lawyer is not evidence. 

Objections made by lawyers also are not evidence. And

questions asked and responses of jurors during jury

selection also are not evidence. The opening statements and

the closing arguments of the lawyers as I told you also are

not evidence. And any testimony that the court may exclude

or strike is also not evidence in the case.

(Emphasis added.) "A jury is presumed to follow the court's 

instructions." State v. Feliciano, 149 Hawai#i 365, 377, 489

P.3d 1277, 1289 (2021) (citation omitted). Nothing in the record

2 Alongi challenged Croucher for cause. The State did not object. 

The circuit court granted the challenge. Alongi also challenged Nguyen for

cause. The circuit court granted the challenge over the State's objection. 

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points to the contrary in this case. On this record, we cannot

conclude that the circuit court committed plain error during jury

voir dire.

2. The circuit court did not abuse its

discretion by denying Alongi's first

motion for mistrial.

Alongi argues that the circuit court erred by denying

his first motion for mistrial because "the [DPA] engaged in

misconduct by adducing Detective Carreira's irreparably

prejudicial comments that informed the jurors that he deal[t]

with 'Major Crimes' and felonies."

Alongi's first motion for mistrial was based upon

testimony given by Detective Carreira. On direct examination,

Detective Carreira testified:

Q Mr. Carreira, what do you do for a living, sir? 

A I'm a detective with the Honolulu Police

Department. 

Q How long have you been employed with HPD? 

A Um -- going on 14 to 15 years. Q Are you assigned to a particular division? 

A Yes, Major Crimes Detail.

Q As a detective with the Major Crimes Detail,

what are some of your general duties and responsibilities? 

A Investigate cases, go to scenes, interview

witnesses. You know, basic -- basically investigate any

kind of criminal case, normally a felony level.

[DEFENSE COUNSEL]: Objection, Your Honor.

(Emphasis added.)

Alongi did not object to the questions that elicited

the allegedly improper testimony; he objected only to Detective

Carreira's answers. The circuit court sustained the objection. 

The following exchange then took place:

THE COURT: How do you want me to cure? An

instruction or leave it alone? Because he can't -- he's

investigated felonies, doesn't necessarily mean that this

one is a felony.

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[DEFENSE COUNSEL]: Yeah. I don't know how to remedy

it. Does the court have a preference?

THE COURT: Well, if I try to give a curative

instruction now, I think it's gonna be obvious and it draws

attention to it.

[DEFENSE COUNSEL]: I don't know, Judge.

THE COURT: But maybe I make -- but I may direct the

prosecutor to ask whether or not he investigates all kinds

of criminal offenses.

[DEFENSE COUNSEL]: Okay.

THE COURT: But I'll hear your thoughts.

[DPA]: Judge, that was an unanticipated response. 

However, if defense counsel would and the court would like

me to cure it, I'll do what I can to cure that. And then

plus, I mean, that taken together with the fact that he

works for Major Crimes I think further complicates the

issue.

THE COURT: And I guess the fir --

[DEFENSE COUNSEL]: I don't want a mistrial. 

(Indiscernible).

THE COURT: So my first question is do you want me to

[give] a curative instruction? My first thought would be

no. But if you want me to, I'll give one.

[DEFENSE COUNSEL]: I think I have to, I have to ask

for a curative instruction.

THE COURT: So I'm going to strike testimony?

[DEFENSE COUNSEL]: Yeah, just to strike I guess,

yeah, the last response without repeating it should be

stricken and not to -- they are not to consider it in their

-- I guess in their evaluation of the facts of this case or

in deliberation of this case.

THE COURT: Okay. I'll give a curative instruction.

The next thing I'm going to order is when they're

talking, when you ask Detective Carreira about his jobs, his

duties, and his responsibilities that you lead so that he

stays away from major crimes and from felony-level offenses.

[DPA]: Judge, I'll move on beyond the whole issue,

beyond his background at this point, if that's beneficial to

the court. But if the court would like me to clarify that

he investigates all types of crimes, I'm happy to do that as

well.

[DEFENSE COUNSEL]: I think that would just draw more

attention (indiscernible) --

[DPA]: I'll just --

[DEFENSE COUNSEL]: -- alleged crimes or whatever.

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[DPA]: I'll just move on, if that's okay.

[DEFENSE COUNSEL]: Okay.

(Emphasis added.) The circuit court then gave the following

curative instruction:

Ladies and gentlemen of the jury, Detective Carreira's last

two answers are stricken from the record. You are not to

consider it during your deliberations of this case in any

way.

Nevertheless, Alongi later moved for a mistrial. The

circuit court denied the motion. Because the jury is presumed to

follow the court's instructions, it cannot be said that Alongi

was prejudiced by Detective Carreira's statements. State v.

Acker, 133 Hawai#i 253, 279, 327 P.3d 931, 957 (2014). The

circuit court did not abuse its discretion in denying Alongi's

first motion for mistrial.

3. The circuit court did not abuse its

discretion by denying Alongi's second

motion for mistrial.

The circuit court invoked Rule 615 of the Hawaii Rules

of Evidence (HRE), commonly referred to as the "witness exclusion

rule," before the start of Alongi's trial.

Exclusion of witnesses. At the request of a party the court

shall order witnesses excluded so that they cannot hear the

testimony of other witnesses, and it may make the order of

its own motion.

Rule 615, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised

Statutes (2016). "The purpose of HRE Rule 615 is to prevent the

shaping of testimony by one witness to match that of another, and

to discourage fabrication and collusion." State v. Elmaleh, 7

Haw. App. 488, 492, 782 P.2d 886, 889 (1989) (cleaned up).

Alongi allegedly punched complaining witness Anthony as

Anthony was seated in his car. Alongi then allegedly punched 

complaining witness Julia after Julia confronted Alongi about

punching Anthony. Immediately after the incident, Anthony was

not able to identify Alongi in a photographic lineup. During the

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trial, Julia identified Alongi as the person who punched her and

Anthony. After Julia testified, but before Anthony testified,

Julia told Anthony that she had identified Alongi in court as the

person who assaulted her.

When Anthony testified he identified Alongi as the

person who punched him. Anthony admitted that he was shown a

photographic lineup, was able to narrow the suspects down to two

photographs, but was unable to identify Alongi as the person who

punched him. At the conclusion of the direct examination,

Anthony stated he was "[a]bsolutely" certain that Alongi was the

man "[t]hat reached through the car window and punched [him.]"

On cross-examination, defense counsel questioned

Anthony as follows: 

Q . . . And you and your wife [Julia], you guys

drove here together today, correct? 

A Yes.

Q Okay. And you and your wife during these

recesses, during lunch you guys are together, correct? 

A Correct.

Q And you guys are sitting in a witness room out

here together, correct? 

A Correct. 

Q Okay. And you were in there when your wife came

out from after she testified, correct? 

A Yes.

Q Okay. And she was upset, right?

A First time.

Q I'm sorry?

A First time because she coming out twice.

Q Okay. First time she was upset?

A Yeah. Crying and. 

Q Okay. And she told you that she ID'd my client

in court? 

A Yeah. She told me.

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The State, on re-direct examination, addressed defense counsel's

line of questioning: 

Q Well, I just want to ask about the implications

of [defense counsel]'s questions. 

A Okay.

Q Your wife, did she tell you that she saw the guy

who assaulted you in court today? 

A Actually, I ask her did you see him? She say

yes. 

Q Okay. My question to you is you've identified

the defendant here in court, right?

A Yes.

Q Are you identifying this defendant based on your

own recollection? 

A On my recollection.

Q You're not doing so -- 

A Nah, nah, no, no. 

Q Let me finish the question. 

A Uh-huh.

Q Are you identifying the defendant because your

wife told you that he was in the room?

A No.

Q All right. [Anthony], why are you saying this

is the man that beat you through the window on April 24th?

A I recognize now. 

Q In person?

A In person. I don't recognize in picture.

On re-cross examination, defense counsel revisited the

issue: 

Q Well, you heard . . . [the DPA] ask you about

when you went back and talked to your wife, correct?

A Yes. 

Q Okay. And you said you asked her was he in

there and she said yes, correct?

A Yes. 

Q Okay. 

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A No, I ask her did you rec -- did you see him.

 Q Okay. And then she said yes, -- 

A Yes. 

Q -- correct? 

And then you're now in court and you're identifying

Mr. Alongi -- 

A Yes.

Q -- as the person who as [sic] assaulted you,

correct?

A. Correct.

Alongi orally moved for mistrial while the jury was in

deliberation: 

[DEFENSE COUNSEL]: Your Honor, at this time defense

would make a motion for a mistrial based on a violation of

the Court's rule. Under HRE Rule 611 [sic], . . . the

witness exclusionary rule will always be in effect from the

hearing on any motions and/or jury selection until and

including closing arguments. 

The basis for my motion is the testimony of

Mr. Anthony Szaraz, who testified that after his wife, Julia

Szaraz, had testified, she came back into the room where

they were seated together, where they had been together the

whole morning. She came in. He asked her specifically if

[Alongi] was in the courtroom and she answered yes, after

which [Anthony] came into the courtroom. And after not

being able to identify [Alongi] as the person who assaulted

him in the sequential six-pack lineup, he points to [Alongi]

with what he said was a hundred percent certainty that this

was the man who assaulted him through the window. 

Also [Julia] did talk about a phone call she got from

Detective Carreira. However, I believe that that is an

indirect violation of the witness exclusionary rule as

invoked by the Court through its Rule 611 order. 

THE COURT: It's a direct violation.

[DEFENSE COUNSEL]: Well, direct violation. And based

on -- you know, the rule itself is one of sequestration such

that it's in place in order to protect one witness from kind

of molding or shaping their testimony in order to align with

the testimony of another witness. And I believe that's what

happened here in court, regardless of what [Anthony] says --

excuse me -- may have testified to on the stand.

 As such I believe that it prejudices [Alongi] such

that he's not able to get a fair trial. And that's the

basis for our motion, Your Honor.

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(Emphasis added.) The circuit court heard further argument, then

denied the motion for mistrial. The court explained:

THE COURT: After taking judicial notice of the

records, files, and proceedings, in 1CPC-17-0001285, given

the arguments of counsel and considering the testimony

that's been provided in the case, Court has a couple of

comments on the witness exclusionary rule. The prosecutor's

right. It is a rule of sequestration to prevent the shaping

of testimony between witnesses. That being said, whether or

not there's actual collusion or actual shaping of testimony

is a determination to be made by the finder of fact. And as

long as the finder of fact has all of the circumstances of

that violation before them to consider, they have the proper

information with which to come to that conclusion.

 So what the Court is really finding is when reviewing

the testimony of [Anthony], he was cross-examined vigorously

with all of the facts of the violation of the in limine

order and the witness exclusionary rule. He was

cross-examined on the statements that his wife made, the

statements that he learned, and whether or not it impacted

him when he made his in-court identification. 

If the jury ultimately finds that it undermines his

credibility and his testimony, the jury has the information

to make that conclusion. The jury also has the relevant and

all of the information with respect to the violation of the

sequestration rule to make the adequate credibility

determination for all of the witnesses. 

So given that, because he was subjected to

cross-examination and the totality of the violation of the

sequestration rule was brought to the jury's attention, the

Court cannot conclude that now the technical violation of

the rule resulted in the deprivation of [Alongi]'s right to

a fair trial. 

So based on those findings and conclusions, Court

respectfully denies the motion for mistrial.

"[T]he sanctions which a court chooses to attach to the

violation of its sequestration order is a matter within the

discretion of the court." Elmaleh, 7 Haw. App. at 493, 782 P.2d

at 889 (original brackets omitted) (citing Harkins v. Ikeda, 57

Haw. 378, 384, 557 P.2d 788, 792 (1976)). Noncompliance with HRE

Rule 615 does not require a new trial "unless the court's

decision to allow the allegedly tainted testimony was an abuse of

discretion or resulted in prejudice to the defendant." Id. at

493, 782 P.2d at 890 (citation omitted). "The defendant has the

burden of proving that there was either prejudice or an abuse of

discretion." Id. at 493-94, 782 P.2d at 890 (cleaned up). 

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In Elmaleh, we held that the violation of the

sequestration order was harmless because the complaining witness 

admitted on cross-examination that she was present during the

conference between the prosecuting attorney and one of the

State's witnesses (a police officer). Id.

Similarly, in State v. Steger, 114 Hawai#i 162, 158

P.3d 280 (App. 2006), we concluded that a witness's viewing of an

exhibit previously marked by other witnesses was harmless beyond

a reasonable doubt because, among other reasons, "the circuit

court took sufficient remedial action by permitting [the

defendant] to cross-examine [the witness] about his viewing of

[the exhibit]." Id. at 175, 158 P.3d at 293 (citing Elmaleh, 7

Haw. App. at 494, 782 P.2d at 890). The defendant's ability to

cross-examine the police officer, we noted, "not only alerted the

jury to what had happened but also permitted [the defendant] to

attack [the witness]'s credibility by arguing that [the witness]

had been influenced by his exposure to the previously-marked

diagram." Id. "[T]he jury was able to judge for itself the

extent to which [the witness]'s testimony may have been

improperly influenced by his viewing of [the exhibit]." Id.

Alongi, like the defendants in Elmaleh and Steger,

failed to show that he was prejudiced or that the circuit court

abused its discretion by denying his motion for mistrial. The

record shows that defense counsel extensively cross-examined

Anthony on his interactions with Julia in the witness room. The

circuit court, consistent with the record, recognized that

"[Anthony] was cross-examined on the statements that [Julia]

made, the statements that he learned, and whether or not it

impacted him when he made his in-court identification." Defense

counsel "alerted the jury" to Anthony's discussion with Julia in

the witness room and "permitted [Alongi] to attack [Anthony]'s

credibility[.]" See Steger, 114 Hawai#i at 175, 158 P.3d at 293. 

As in Steger, Alongi's jury was able to judge for itself the

extent to which Anthony's testimony may have been improperly

influenced by his discussions with Julia in the witness room. On

the record before us, we cannot say that the circuit court abused

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its discretion in denying the motion for mistrial based on

Anthony's and Julia's violation of the witness exclusion rule.

4. The circuit court did not deprive Alongi

of his constitutional right to testify.

Alongi contends he "was deprived of his constitutional

right to testify where his purported waiver of that right was the

result of coercion by [his defense counsel]." He acknowledges

that the circuit court engaged him in an appropriate Tachibana

colloquy,3 and that the alleged conduct of his defense counsel is

"not reflected in the record of the proceedings herein[.]" We

therefore decline to address this issue, without prejudice to

Alongi's right to file a Hawai#i Rules of Penal Procedure Rule 40

post-conviction petition. 

5. The evidence was sufficient to support

Alongi's conviction.

Alongi contends there was insufficient evidence to

identify him as the perpetrator. In support of his argument,

Alongi asserts that Julia, Anthony, and Billimon "provided

conflicting, tainted and biased identifications of Alongi as the

alleged perpetrator[, which] did not constitute substantial

evidence[.]"

Alongi first argues that Julia's identification was not

credible because she twice failed to identify Alongi in

photographic lineups and she agreed on cross-examination that she

was "not a hundred percent certain" about her in-court

identification of Alongi.

Alongi next argues that Anthony's testimony was not

credible because he twice failed to identify Alongi in

photographic lineups and was only able to identify Alongi in

court after Julia told him she had identified Alongi during her

testimony, in violation of the witness exclusion rule.

3 See Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).

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Finally, Alongi argues that Billimon's testimony was

biased and not credible because: (1) his testimony concerning his

unobstructed view of the incident and whether he punched or

kicked the perpetrator was contradicted by objective evidence

presented at trial; (2) his identification of Alongi as the

driver of the Chevy was colored by his prior encounters with

Alongi; and (3) he admitted to speaking alone with the deputy

prosecuting attorney about the case and also having a pending

drunk driving case that was being prosecuted by the office of the

prosecuting attorney.

Julia, Anthony, and Billimon all identified Alongi at

trial. Although Alongi challenges their credibility, "it is

within the jury's purview" to determine witness credibility. 

State v. Williams, 149 Hawai#i 381, 399, 491 P.3d 592, 610 (2021)

(citing State v. Jhun, 83 Hawai#i 472, 483, 927 P.2d 1355, 1366

(1996) ("In a jury trial, the jury is the trier of fact and,

thus, is the sole judge of the credibility of the witnesses and

the weight of the evidence.")). There was substantial evidence

adduced at trial to support Alongi's conviction.

CONCLUSION

For the foregoing reasons, the Judgment of Conviction

and Probation Sentence entered by the circuit court on June 26,

2018, is affirmed.

DATED: Honolulu, Hawai#i, October 7, 2022.

On the briefs:

Thomas Waters,

Law Office of Thomas Waters,

for Defendant-Appellant.

 

Brian R. Vincent,

Deputy Prosecuting Attorney,

City and County of Honolulu,

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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