NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000468

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

DONALD P. MCFEE, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(2CPC-17-0000346(1))

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Chan and Wadsworth, JJ.)

Defendant-Appellant Donald P. McFee (McFee) appeals

from the May 23, 2018 Judgment of Conviction and Sentence entered

by the Circuit Court of the Second Circuit (Circuit Court),1

following a jury trial wherein McFee was found guilty of the

charge of Terroristic Threatening in the First Degree (TT1), in

violation of Hawaii Revised Statutes (HRS) § 707-716 (2014).2 

1 The Honorable Rhonda I.L. Loo presided.

2 § 707-716 provides, in relevant part,

(1) A person commits the offense of terroristic threatening

in the first degree if the person commits terroristic threatening:

. . . .

(e) With the use of a dangerous instrument[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000468

29-MAY-2020

08:01 AM
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On appeal, McFee contends that the Circuit Court erred

and abused its discretion in denying McFee's motion for mistrial

based on prosecutorial misconduct, failing to give appropriate

curative instructions, and failing to strike impermissible

introduction of prior bad acts. 

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve McFee's points of error, and affirm.

On appeal, we "evaluate[] claims of improper statements

by prosecutors by first determining whether the statements are

improper, and then determining whether the misconduct is

harmless." State v. Tuua, 125 Hawai#i 10, 14, 250 P.3d 273, 277

(2011) (citations omitted). If a prosecutor makes improper

statements, we consider "the following criteria in assessing

whether a prosecutor's improper comments are harmless: (1) the

nature of the conduct; (2) the promptness of a curative

instruction; and (3) the strength or weakness of the evidence

against the defendant." Id. at 15-16, 250 P.3d at 278-79

(internal quotation marks omitted). The harmless beyond a

reasonable doubt standard "requires an examination of the record

and a determination of whether there is a reasonable possibility

that the error complained of might have contributed to the

conviction." State v. Rogan, 91 Hawai#i 405, 412, 984 P.2d 1231,

1238 (1999) (internal quotation marks and citations omitted).

Here, the Deputy Prosecuting Attorney (DPA) improperly

made a comment about a tattoo on McFee's chest during opening

statements, which constituted prosecutorial misconduct. However,

based on the record in this case which includes a timely curative

instruction striking the DPA's improper comment and the strong

evidence against McFee, we conclude the DPA's improper statement

was harmless.

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An Indictment filed on May 23, 2017, charged McFee with

TT1 as follows:

That on or about the 15th day of May, 2017, . . .

[McFee], with the intent to terrorize, or in reckless

disregard of the risk of terrorizing Deborah Waltrip

(Waltrip), did threaten, by conduct, to cause bodily

injury to Deborah Waltrip, with the use of a dangerous

instrument, to wit, a large hunting knife[.]

Prior to jury trial, the Circuit Court heard the State and

McFee's motions in limine. McFee sought specific exclusion of,

inter alia, "[a]ny evidence relating to tatoos [sic] on the

Defendant's body[.]" No party objected to the other's in limine

requests and the court granted both parties' motions. 

On January 9, 2018, the first day of trial, the State

began its opening statement as follows:

This case is about a former tenant and a knife.

On May 15th, 2017, Deborah Waltrip was watching

television at her house. . . . She was watching

television with her other tenant, Brandon Telles.

About 7:30 p.m., Deborah heard some loud yelling

and screaming near the front part of her residence.

She lives on the second floor so she had to come down

the stairs. She wanted to check to see what was going

on, who was doing the yelling and why was that person

yelling.

So she approaches the front part of her house.

There's a gate there -- her entire house or property

is fenced in, and you'll see photographs of the fence.

It's just a wire fence but there's a big gate -- and

as she approaches the gate, she hears this person

yelling. She hears this person screaming. She can't

quite make out who it is until she gets a little bit

closer. As soon as she gets closer, she sees that

it's her former tenant Donald McFee, the defendant

right here.

She recognizes him and she also sees distinctive

tattoos on the front of his chest. She recognizes the

tattoo. It says, "Fuck the police" right on his

chest, so she knows it's Donald McFee.

Now, a few months earlier, Deborah had to tell

Donald to please leave the residence because he was

doing some damage to a room that he was renting in her

house so she asked him to leave, and that happened in

March of 2017, so about two months earlier.

She sees the defendant. She tells him, you're

not welcome here. Leave. You are not welcome.

Defendant has a knife on his waist.

(Emphases added.) 

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McFee requested a bench conference and moved for a

mistrial due to the DPA mentioning McFee's tattoo:

[Counsel for McFee]: According to the motion in

limine is to -- I thought I had a motion in limine

precluding the State from mentioning any tattoos.

[DPA]: I don't remember that, Judge, because he

brought up the tattoos on his voir dire.

[Counsel for McFee]: Yeah, but that's not

coming into evidence. My statements are not in

evidence.

THE COURT: Any evidence related to tattoos on

the defendant's body.

[Counsel for McFee]: I move for a mistrial.

[DPA]: I don't remember seeing that, Judge.

THE COURT: I'll ask the jury to disregard and

have that comment stricken.

[Counsel for McFee]: I submit that they cannot

disregard, "Fuck the police." That's the -- that is

in --

THE COURT: I'll tell the jury to disregard and

have the matter stricken from the record.

Immediately thereafter, the Circuit Court instructed the jury to

"disregard the remark made by [the DPA] regarding the tattoos on

the defendant's chest and the wording. It will be so stricken

from the record." 

Later, during the evidentiary portion of trial, McFee

revisited his motion for mistrial, emphasizing, for the record,

that he was prejudiced at the outset when the DPA mentioned the

"Fuck the police" tattoo in the opening statement, while in voir

dire McFee did his best to be vague about the nature of McFee's

tattoos, which also covered his face and neck. In addition,

McFee asserted that the trial court's curative instruction was

insufficient to remove the prejudice caused by the DPA's

misconduct. 

Regarding the first factor in assessing whether the

DPA's misconduct was harmless, it was clearly improper for the

DPA to comment on McFee's "Fuck the police" tattoo during his

opening statement in light of the Circuit Court's ruling to

preclude any evidence regarding McFee's tattoos. Even though 

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McFee's counsel had mentioned tattoos in voir dire, those

comments related to McFee's visible tattoos on his face. We do

note that the prosecutor's comment was an isolated statement in

the State's opening argument; it was not presented as evidence,

and the jury was instructed that "[s]tatements or arguments made

by lawyers are not evidence." The jury was also instructed they

are not "to decide whether Mr. McFee is a good person or a bad

person[,]" and this case does not involve conduct by McFee

against a police officer. However, opening statement "provides

an opportunity for counsel to advise and outline for the jury the

facts and questions in the matter before them." State v.

Simpson, 64 Haw. 363, 369, 641 P.2d 320, 324 (1982). The DPA

should not have made comment on McFee's chest tattoo given that

no evidence about the tattoo would be admissible and given the

content of the tattoo. Thus, the first factor -- the nature of

the alleged prosecutorial misconduct -- weighs in favor of McFee.

As to the second factor, after McFee's objection during

the bench conference, the Circuit Court promptly gave an

instruction to the jury to "disregard the remark made by [the

DPA] regarding the tattoos on the defendant's chest and the

wording" and ordered the remark to be stricken. No further

reference to the particular tattoo or any others was made. The

court's immediate instruction dissipated the risk of prejudice to

McFee because a jury is presumed to follow the instructions it is

given by the court. State v. Acker, 133 Hawai#i 253, 278, 327

P.3d 931, 956 (2014) (citing State v. Knight, 80 Hawai#i 318,

327, 909 P.2d 1133, 1142 (1996) ("[A]s a rule, juries are

presumed to . . . follow all of the trial court's

instructions.")). Accordingly, the second factor, the promptness

or lack of a curative instruction, weighs against McFee.

Regarding the third factor, the evidence elicited at

trial strongly supported the jury's guilty verdict on the charge

of TT1. Waltrip testified she was McFee's former landlord and 

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had given McFee forty-five days' notice in March 2017 to leave

her property. On the night in question, Waltrip went downstairs

in her residence to investigate a commotion outside and noticed a

person crouched between a trailer and Waltrip's SUV near the gate

of a hog-wire fence that surrounded her property. When Waltrip

recognized that the person was McFee, she became fearful and

repeatedly asked him to leave. McFee yelled and swore at Waltrip

from the other side of the fence. Waltrip then made a

non-emergency call to the police. Initially, she did not see

McFee carrying a weapon but later, from about three feet away as

Waltrip was on the phone with the police, McFee brandished a

large knife for about five seconds, yelling and swearing in a

loud and threatening tone, causing Waltrip to feel threatened. 

He then put the knife back into the holder in his belt and walked

down the street towards the garage. McFee then walked back

towards Waltrip by her gate and waived the knife in a threatening

manner at her from two to three feet away for about ten to

fifteen seconds. During this time, McFee was yelling profanities

in a threatening tone at Waltrip. Waltrip was about a foot

behind her gate but backed up because she was scared. Waltrip

was terrified. All the while, Waltrip repeatedly stated, "You

need to leave now." The police finally arrived and arrested

McFee. 

Walter Gouveia (Gouveia), a tenant who resides in the

garage on Waltrip's property, testified that earlier on the day

of the incident, he had run into McFee at the laundromat, and

McFee had asked Gouveia if McFee could stop by. Gouveia advised

McFee he was not allowed to visit the property. About

twenty-five minutes after Gouveia returned home, McFee came to

Gouveia's residence and Gouveia again reminded McFee that he did

not belong there, after which McFee walked away towards Waltrip's

residence. Gouveia followed McFee and saw him brandish a knife

about one foot in front of Waltrip in a sideways slashing type 

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motion, while chanting "in Hawaiian all kinds of different

stuff." McFee stopped waving the knife when the police arrived. 

Maui Police Officer Cody Saludez (Officer Saludez)

testified that he responded to a disorderly type case at

Waltrip's property. When he arrived, he observed McFee standing

alongside the roadway, with a large hunting knife at his left

hip. Officer Saludez recovered the knife from McFee as evidence

and measured the knife blade to be eight inches long and the

handle about four to five inches long. 

McFee did not testify and did not call any witnesses in

his defense. 

Given the record, the third factor, the strength or

weakness of the evidence against defendant, weighs strongly

against McFee. After evaluating the three factors as to whether

the DPA's tattoo comment was harmless, and considering the record

as a whole, we conclude there is no reasonable possibility that

the error complained of might have contributed to McFee's

conviction.

As for McFee's argument that the Circuit Court failed

to strike impermissible introduction of prior bad acts, McFee's

point of error and arguments are less than clear as to the prior

bad acts he alleges were improperly raised. We infer that McFee

is referencing the DPA's comments in his opening statement that,

prior to the incident in this case, Waltrip had asked McFee to

leave her residence because he "was doing some damage to a room

that he was renting in her house." McFee made no objection to

this comment at trial. In an analogous circumstance, the Hawai#i

Supreme Court noted that "[w]here a defendant fails to object to

a prosecutor's statement during closing argument, appellate

review is limited to a determination of whether the prosecutor's

alleged misconduct amounted to plain error." State v. Iuli, 101

Hawai#i 196, 204, 65 P.3d 143, 151 (2003).

The appellate court will apply the plain error standard of

review to correct errors which seriously affect the

fairness, integrity, or public reputation of judicial

proceedings, to serve the ends of justice, and to prevent

the denial of fundamental rights. An appellate court's

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power to deal with plain error is one to be exercised

sparingly and with caution because the plain error rule

represents a departure from a presupposition of the

adversary system—that a party must look to his or her

counsel for protection and bear the cost of counsel's

mistakes.

State v. Metcalfe, 129 Hawai#i 206, 222, 297 P.3d 1062, 1078

(2013) (quotation marks and citations omitted). Given the

circumstances in this case, we conclude there was no plain error.

Therefore, IT IS HEREBY ORDERED that the Circuit Court

of the Second Circuit's May 23, 2018 Judgment of Conviction and

Sentence is affirmed.

DATED: Honolulu, Hawai#i, May 29, 2020.

On the briefs:

John F. Parker, 

for Defendant-Appellant. 

Peter A. Hanao, 

Deputy Prosecuting Attorney

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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