State v. Brown

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 30-SEP-2025 03:57 PM Dkt. 39 OP

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

STATE OF HAWAIʻI, Plaintiff-Appellee,

vs.

BERNARD BROWN, Defendant-Appellant.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)

SEPTEMBER 30, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA AND DEVENS, JJ.

OPINION OF THE COURT BY DEVENS, J.

I. INTRODUCTION

Defendant-Appellant Bernard Brown (Brown) appeals his 2022

conviction for murder in the second degree of his former

girlfriend Moreira Monsalve (Monsalve) following a jury trial in  *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

the Circuit Court of the Second Circuit (circuit court). 1 Brown

maintained that he last saw Monsalve on the night of January 12,

2014, when she kissed him good night and left his apartment

between 10:00 and 10:30 p.m. Brown claimed that Monsalve’s son

had picked her up. Her son denied that ever happened. And

Monsalve was never seen again.

On appeal, Brown raises several points of error, including:

the sufficiency of the evidence to sustain his conviction;

evidentiary suppression issues relating to Brown’s interview

with Maui Police Department (MPD) Detectives Wendell Loo (Loo)

and David Lee (Lee) and the prosecutor’s use of a subpoena to

obtain Brown’s customer account subscriber name from Hawaiian

Telcom; prosecutorial misconduct during closing argument; plain

error by the trial court in not giving a unanimity or a lesser

included offenses jury instruction and with respect to deficient

charging language in Brown’s 2020 indictment; prejudice to his

due process rights from pre-indictment delay; and trial court

error in the circuit court’s denial of his motion to dismiss the

2020 indictment on procedural and sufficiency of evidence

grounds.

After careful review of the record and giving due

consideration of the issues and arguments presented, we hold

1 The Honorable Peter T. Cahill presided.

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that there was sufficient evidence to sustain Brown’s

conviction; that the circuit court did not err in admitting into

evidence Brown’s statement to police and his subscriber name;

and that Brown’s claims of prosecutorial misconduct, plain error

relating to jury instructions, alleged defects in the

indictment, and pre-indictment prejudice were, on this record,

not established.

II. PROCEDURAL BACKGROUND

A. Circuit Court Proceedings

1. 2019 Indictment and Dismissal Without Prejudice

On September 20, 2019, Brown was indicted by a Maui grand

jury for murder in the second degree of Monsalve. Four

witnesses testified before the grand jury: Monsalve’s adult

daughter and MPD Detectives Oran Satterfield, Nelson Hamilton,

and Matthew Bigoss.

On July 19, 2020, Brown filed a motion to dismiss the

indictment pursuant to Rule 47 of the Hawaiʻi Rules of Penal

Procedure (HRPP). Brown raised three grounds for dismissal:

insufficient evidence to support the indictment; violation of his

right to a fair grand jury proceeding due to a grand juror’s

conflict of interest or failure to provide a limiting instruction

or prejudicial statement by independent grand jury counsel; and

denial of his right to a fair trial due to the excessive use of

hearsay evidence. The prosecution opposed Brown’s motion.

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On December 7, 2020, the circuit court granted Brown’s

motion to dismiss without prejudice, but did not specify the

grounds for the dismissal.

2. 2020 Indictment

Eleven days after the circuit court dismissed the first

indictment, a second grand jury was convened. The same four

witnesses testified. 2

Of note, Detective Satterfield testified as to what Brown

told initial MPD investigators, Detectives Loo and Lee, during

Brown’s interview at the Wailuku police station that took place

several hours after Monsalve was reported missing on January 14,

2014. According to Detective Satterfield, Brown had answered

the detectives’ questions, describing, among other things: the

up-and-down nature of his dating relationship with Monsalve; how

Monsalve and her youngest son primarily lived at Brown’s

apartment for two years; the difficulties they experienced in

their relationship; that Brown had asked Monsalve and her son to

move out, ending their relationship New Years Day of 2014; that

Brown had not physically abused Monsalve; and that Brown was to

fly to California on January 14, 2014 but changed his flight

after Monsalve had not come over to watch his cat. Detective

2 The record indicates that MPD Detective Nelson Hamilton was Lieutenant Hamilton when appearing before the second grand jury.

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Satterfield further testified about Brown informing the

detectives that Monsalve came over to his apartment on January

12, 2014 at around 5:00 p.m., after which they hung out and

watched a movie; and later, as Brown fell asleep on the couch,

Monsalve kissed him on the cheek, saying her son would pick her

up, and left his apartment between 10:00 and 10:30 p.m.

On December 18, 2020, the grand jury indicted Brown for

murder in the second degree.

3. Brown’s Motion to Dismiss the Indictment

Brown filed a motion to dismiss the second indictment,

raising similar grounds asserted in his first motion, including

insufficiency of the evidence, denial of his right to a fair

trial due to two jurors’ conflicts of interest, and excessive

use of hearsay evidence by detectives testifying in lieu of the

witnesses who would be called at trial.

In opposing the motion, the prosecution countered that the

grand jury evidence was sufficient to sustain the indictment;

the purported conflicts of interest provided no grounds to

allege bias; and hearsay evidence was not deliberately used in

place of better evidence to improve the prosecution’s case for

indictment.

After a hearing, the circuit court denied Brown’s motion to

dismiss the indictment. The court found there was probable

cause to indict Brown; no evidence the two grand jurors Brown

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disputed were biased; and Brown did not establish the deliberate

use of hearsay in place of better evidence.

4. Evidentiary Motions

a. Motion to Suppress Brown’s Hawaiian Telcom Subscriber Name and Information

Brown filed a motion to suppress information produced in

response to a June 18, 2014 subpoena the prosecution served on

Brown’s internet service provider (ISP), Hawaiian Telcom,

requesting basic information on the subscriber account to which

Internet Protocol (IP) number 72.253.119.239 had been assigned

between January 1 and March 31, 2014. Hawaiian Telcom responded

to the subpoena and disclosed that IP number 72.253.119.239

(Brown’s IP address or the subject IP address) had been assigned

to Brown’s residential subscriber account, and also disclosed a

telephone number, Brown’s name as the subscriber, the

subscriber’s address in Wailuku, and the account’s activation

date.

Brown contended that the subpoenaed information constituted

a warrantless search. Citing to State v. Walton, 133 Hawaiʻi 66,

324 P.3d 876 (2014), Brown argued that he had a legitimate

expectation of privacy in this basic information, including his

name, even if it had been previously revealed to a third-party,

i.e., Hawaiian Telcom. Brown asserted that MPD’s use of this

information “was significant because MPD was able to take a

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logging of different IP addresses from Ms. Monsalve’s accounts

to determine where a device was when it was being accessed.” In

other words, the relevance of this information, according to

Brown, was that it allowed MPD to determine the location of

Monsalve and/or her phone during certain relevant time periods.

Thus, he maintained, the subpoenaed account information from

Hawaiian Telcom should be suppressed as a warrantless and

unlawful search and seizure.

The prosecution countered that under Walton, Brown was

still required to demonstrate that he had a legitimate

expectation of privacy in the subscriber information he provided

to the third-party, Hawaiian Telcom, including an actual

subjective expectation of privacy in the subject information,

and that defendant’s expectation was one that society

acknowledged as reasonable. Prosecutors asserted that Brown had

not factually established a subjective expectation of privacy in

the information disclosed by Hawaiian Telcom. Further, the

prosecution noted that Brown had voluntarily disclosed his IP

address through emailing others and accessing different

websites, which logged his IP address.

Following a hearing, the circuit court suppressed Brown’s

Hawaiian Telcom customer account address, telephone number, and

service activation date, but allowed into evidence Brown’s full

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name on the customer account. 3

b. Motion in Limine to Exclude Brown’s January 14, 2014 Interview with MPD

Brown filed a motion in limine to exclude the statements he

gave during a January 14, 2014 interview with MPD Detectives Loo

and Lee. Brown asserted that the interview violated his

constitutional rights because he was subjected to a custodial

interrogation without being given a Miranda warning.

Following a hearing, the circuit court denied Brown’s

motion, concluding Brown was not in custody during the

January 14, 2014 police interview.

5. Trial

a. Prosecution’s Case in Chief

The prosecution presented a no-corpse, circumstantial

evidence case with thirty-five witnesses testifying. Evidence

was presented regarding Monsalve’s sudden and complete

disappearance in support of a reasonable inference that she was

deceased, and Brown’s activity and behavior to show that Brown

was conscious of having caused her disappearance. Witnesses

included Monsalve’s adult daughter and youngest son, MPD

investigators, FBI agents, Monsalve’s coworkers and long-time

friends, and individuals who had interactions with Brown after

3 This ruling and the court’s reasoning for the partial suppression of information does not appear to have been memorialized in a written order.

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Monsalve was reported missing.

The prosecution’s witnesses testified to Monsalve’s prior

lifestyle and habits. They described her close relationship

with her daughter and son; her dedication and reliability at her

job as a financial analyst for a military contractor; and the

uncharacteristic way she did not call to let colleagues know why

she was not at work on January 13 and 14, 2014 (Monday and

Tuesday). Monsalve’s son described his mother as “always

put[ting] others, her friends and her family and her kids,

before herself.” Monsalve’s daughter stated that she and her

mother had regularly communicated several times a week, but

since January 12, 2014, she received no further communications

from her mother.

Witnesses also described how Brown had Monsalve’s car on

January 13, 2014 and how Monsalve’s purse and smashed cellphone

were later found that night in a nearby park dumpster. One

witness testified that Monsalve had committed to house-sit and

watch a friend’s pet starting Friday of that week, while that

friend went on a vacation. Another witness testified that she

and Monsalve discussed being “empty nesters” after both of their

sons’ high school graduations. Monsalve’s son testified that he

last saw his mother on January 12, 2014 when they went to a

college admissions and financial aid counseling meeting.

Witnesses also described the lack of any contact or

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communication between Monsalve and her children and friends, as

well as abandonment of her banking and other financial accounts

for over five years between her January 2014 disappearance and

Brown’s trial, as uncharacteristic of her.

This evidence, the prosecution argued, indicated that

Monsalve was likely deceased, as her disappearance was sudden

and unplanned, inconsistent with her normal lifestyle and

habits. See State v. Torres (Torres I), 122 Hawaiʻi 2, 14, 222

P.3d 409, 421 (App. 2009), affirmed and corrected on other

grounds by, State v. Torres (Torres II), 125 Hawai‘i 382, 262

P.3d 1006 (2011).

Other prosecution witnesses offered testimony as to Brown’s

statements and actions in the time frame surrounding Monsalve’s

disappearance. Monsalve’s daughter testified that in her first

phone conversation with Brown midday on January 14, 2014, Brown

told her that after Monsalve dropped her daughter off at the

airport on January 12, 2014, “the car started stalling out, so

she went over to his house because the car was stalling out[;]”

and that Monsalve’s son had picked her up from there between

10:00 and 10:30 p.m. Other witnesses testified that Brown told

them that Monsalve was with him the night of January 12, 2014

before she kissed him goodnight and was picked up from his

apartment by Monsalve’s youngest son or someone else between

10:00 and 10:30 p.m. Monsalve’s son testified that he and his

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mother did not make plans to pick her up the night of January

12, 2014, nor did she try to contact him that night to come and

pick her up. Monsalve’s daughter testified that she read a

Facebook post from Brown on Monsalve’s Facebook homepage,

timestamped at approximately 7:00 p.m. January 12, 2014, stating

he was watching her at his apartment playing the video game

Candy Crush and “should be talking to her, but she’s so intent

on passing a Candy Crush level that he doesn’t want to disturb

her.” Monsalve’s daughter continued, stating, “he’s basically

saying my mom was sitting next to him on the couch.”

Brown’s interview with Detectives Loo and Lee was read into

evidence, including Brown’s statement that Monsalve spent that

weekend with him. In that interview, Brown recounted that on

Sunday, January 12, 2014, Monsalve arrived at around 5:00 p.m.;

and later that night, as he was falling asleep on the couch, she

left his apartment between 10:00 and 10:30 p.m. One of the

police investigators testified that after 11:00 p.m., at least a

half hour after the time Brown said he was falling asleep and

Monsalve had left his place, his Facebook records showed the

deletion of twenty-one Facebook friends from his account, which

continued into the next morning resulting in thirty-seven more

friends being deleted.

Several witnesses also described postings appearing on

Craigslist starting the very next day on January 13, 2014,

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advertising the sale of Brown’s furniture, including a couch,

which one purchaser testified smelled like chemicals, as if it

were recently cleaned. One of Brown’s friends in California

described how on January 13, 2014, Brown had called her with

some panic in his voice, asking for a “burner phone” and

wondering if his phone was being tapped; this same witness

testified that Brown called her weeks later, asking her how to

wipe a computer hard drive. Another witness described how Brown

said he needed to change a flight to California the week of

Monsalve’s disappearance because she was not there as previously

agreed upon to watch his cat while he was away. Brown’s

roommate at the time described Brown taking Monsalve’s vehicle

on January 13, 2014 to a local mechanic. And another witness

testified that Brown stated Monsalve had left her car at Brown’s

place because it was stalling and he was to take it to the

mechanic the next morning, even though Monsalve’s son testified

that on January 12, 2014, the vehicle was not having any

particular problems. Yet another witness testified that Brown’s

Dodge Nitro was “spotless” and “overly clean” when it was

repossessed towards the end of January 2014.

The prosecution also presented investigator testimony about

electronic data retrieved from Monsalve’s damaged cellphone,

which had been found abandoned in a local park’s dumpster, as

well as her Facebook and Microsoft Hotmail account records.

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Detective Bigoss testified that Monsalve’s Facebook records

indicated Monsalve’s phone “interacted with Facebook” from

Brown’s IP address at 9:08 p.m. on January 12, 2014 and then

again at 1:04 a.m. on January 13, 2014. Detective Bigoss also

stated that Monsalve’s Facebook records showed that her account

was being accessed from Brown’s IP address on January 29, 2014,

weeks after Monsalve’s disappearance, not from Monsalve’s phone,

but from a device that had also been used to access Brown’s

Facebook account on the same day. Other activity recorded in

Monsalve’s cellphone browser indicated the phone was accessing

numerous banking, credit card, and airline websites as well as

email from 10:45 p.m. on January 12, 2014 through 3:05 a.m. the

morning of January 13, 2014. And Detective Satterfield

testified that in reviewing Brown’s Facebook records for the

time period immediately before and after January 12-13, 2014,

Brown’s IP address appeared in Brown’s Facebook activity.

Brown’s counsel preserved his objections that Brown’s

January 14, 2014 statement to police was unlawful for lack of a

Miranda warning, and that the link between Brown’s subscriber

name and the subject IP address during January through March

2014 was unlawfully obtained by subpoena.

b. Brown’s Motion for Acquittal

At the conclusion of the prosecution’s case, Brown’s

counsel orally moved for judgment of acquittal arguing, in part,

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that there was no direct evidence Ms. Monsalve was deceased or

that Brown had killed her. The circuit court denied Brown’s

motion.

c. Brown’s Defense

With colloquy by the court, Brown elected not to testify.

Brown called one witness in his defense: a person who had been

hired to repossess Brown’s black Dodge Nitro from the parking

lot of Brown’s Wailuku apartment at the end of January 2014.

The witness testified on cross-examination that he had not

spoken with Brown at the time of the repossession and denied

previously telling police that he had.

d. Jury Instructions

During the settling of jury instructions, Brown’s counsel

initially requested a unanimity jury instruction pursuant to

State v. Arceo, 84 Hawaiʻi 1, 928 P.2d 843 (1996), and a lesser

included offenses instruction, but later withdrew both proposed

instructions.

e. Closing Arguments

As is relevant to this appeal, one of the DPAs (DPA 1) gave

the prosecution’s closing argument, and the second DPA (DPA 2)

gave rebuttal argument after Brown’s closing argument.

DPA 1 noted that “we know” that “the defendant drops off

[Monsalve’s] car” on the evening of January 13, 2014.

DPA 2 used the phrase “we know” several times during his

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rebuttal. The DPA framed Brown’s activity from the night of

January 12, 2014 onward as “acting guilty” and creating “false

alibis.” DPA 2 continued:

First of all, [Monsalve’s] phone it’s at and being used at the defendant’s apartment throughout the night of January 12th. On Monday morning the defendant and no one else is in a panic and, frankly, acting guilty. His actions lead to guilt. Also, after Tuesday, he starts to create false alibis for the police to follow, for the people who are looking for her, [Monsalve’s] family and friends, and finally [Brown] killed . . . Monsalve because he felt played, cheated, and broken. So let’s look at what the defendant said to police. So we know [Monsalve] went to his apartment on Sunday at around 5:00 p.m. and he acknowledged that she was there at least until 10:00-10:30 p.m. and this is very important. Now, [Monsalve’s] phone – when the FBI did their analysis, they noted continuous browser activity from 8:30 p.m. January 12th until 3:17 a.m. January 13th, the following day. Now, how do we know [Monsalve’s] phone is at the defendant’s apartment throughout Sunday night? We know that because of the IP address and [Monsalve’s] Facebook account. [Monsalve’s] Facebook account shows activity on this IP address at 9:08 p.m. on Sunday night, and we know [Monsalve] was at the defendant’s apartment because the defendant himself said she was there, and it shows the activity is [Monsalve’s], an Android phone.

. . . .

Now, again, on Monday, at 1:04 a.m., the same thing happens with [Monsalve’s] Facebook account. It’s updated at this IP address where we know [Monsalve] is at the defendant’s apartment at 1:04 a.m. Now, the time is in UTC time so Detective Bigoss testified that we’re ten hours behind UTC time, so the time is actually 1:04 a.m. Hawaii time on Monday. So we know between Sunday at 9:08 p.m. there’s a connection with Brown’s IP address when we know she’s at his apartment, and at 1:04 a.m., Monday.

(Emphasis added.)

f. Brown’s Renewed Motion for Judgment of Acquittal, and the Jury’s Verdict

At the conclusion of closing arguments, Brown renewed his

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motion for judgment of acquittal, which the circuit court

denied. And on August 25, 2022, the jury returned a verdict

finding Brown guilty of murder in the second degree.

6. Post-Verdict Motions and Sentencing

Brown filed a post-verdict motion for acquittal or, in the

alternative, a new trial. The prosecution contended there were

no grounds to acquit Brown or order a new trial. Brown’s motion

was denied. Brown was sentenced to life imprisonment with the

possibility of parole. A judgment of conviction and sentence

was entered on March 30, 2023.

B. Intermediate Court of Appeals (ICA) Proceedings and Transfer Application

Brown timely appealed to the ICA and raised ten points of

error in his opening brief, which we reorder and summarize

briefly. First, Brown argued the evidence adduced at trial was

insufficient to support his conviction for murder in the second

degree. Second, he asserted that the trial court erred in not

suppressing his January 14, 2014 interview with MPD detectives

who did not give a Miranda warning and violated his

constitutional rights. Third, Brown contended that the circuit

court erred in denying his motion to suppress his subscriber

name from the information investigators obtained through the

subpoena of Hawaiian Telcom’s records, and that “[t]he statute

that prosecutors relied upon to issue the subpoena compelling

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Hawaiian Telcom to provide Brown’s account information, Hawaiʻi

Revised Statutes (HRS) § 28-2.5, contains no suspicion standard

at all[,]” instead allowing a prosecutor to obtain Brown’s

account information in violation of his federal privacy rights

and his state constitutional rights pursuant to Walton.

Fourth, Brown asserted the circuit court committed plain

error as the prosecution engaged in misconduct when repeating

the phrase “we know” in closing and rebuttal. Brown further

contended that the circuit court committed plain error in not

instructing the jury on second-degree murder’s lesser included

offenses and in not giving the jury a specific-act Arceo

unanimity instruction. And finally, Brown argued that the

circuit court erred in not dismissing the 2020 indictment

because: there was a more than five-year pre-indictment delay,

which substantially prejudiced his defense; the charging

language lacked sufficient detail pursuant to State v. Jardine,

151 Hawai‘i 96, 508 P.3d 1182 (2022); and there were infirmities

in the 2020 grand jury proceedings, including use of excessive

hearsay testimony by MPD officers “laundering” potential trial

witnesses’ testimony before the grand jury, as well as an

alleged replaying of the same script from the 2019 grand jury

case and a lack of sufficient evidence to sustain the

indictment.

The prosecution’s answering brief opposed all of Brown’s

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points of error, as will be discussed below.

On March 11, 2024, the Attorney General (AG) for the State

of Hawaiʻi filed an amicus curiae brief pursuant to Hawaiʻi Rules

of Appellate Procedure (HRAP) Rule 28(g). 4 The AG noted that

Brown was challenging the constitutionality of two statutes, HRS

§ 28-2.5 and HRS § 803-47.6, although Brown’s appeal did not

reference HRS § 803-47.6. 5 Relevantly, the AG presented case law

4 HRAP Rule 28(g) provides in pertinent part: “The attorney general may file an amicus curiae brief without order of the court in all cases where the constitutionality of any statute of the State of Hawaiʻi is drawn into question[.]”

5 HRS § 803-47.6(d)(2)(D) (2014) provides:

(2) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to, or customer of, the service (other than the contents of an electronic communication) to a governmental entity only when:

. . .

(D) Presented with an administrative subpoena authorized by statute, an attorney general subpoena, or a grand jury or trial subpoena, which seeks the disclosure of information concerning electronic communication, including but not limited to the name, address, local and long distance telephone billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of the service, and the types of services the subscriber or customer utilized.

HRS § 803-47.6(d)(2)(D) (emphases added).

HRS § 28-2.5 (2009) provides in relevant part:

[T]he county prosecuting attorneys, when conducting a criminal investigation in their respective jurisdictions, may, subject to the privileges enjoyed by all witnesses in this State, subpoena witnesses, examine them under oath, and require the production of any books, papers, documents, or other objects designated therein or any other record however maintained, including those electronically stored, which are relevant or material to the investigation.

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relating to digital evidence, including ISP subscriber

information and addressed HRS § 803-47.6, which authorizes law

enforcement to obtain subscriber or customer information such as

a subscriber’s name, address, telephone number, other numbers

and identifiers, and the length and types of services purchased.

The AG’s amicus brief also addressed the impact of Walton on the

use of subpoenas in state and county criminal investigations;

and presented constitutional privacy analysis from other states,

recommending a balancing test weighing an individual’s right to

privacy with the public’s interest in lawful subpoena practice

in criminal investigations and prosecutions.

On March 28, 2024, we granted Brown’s application for

transfer to this court, and oral argument was held on June 19,

2025.

III. STANDARDS OF REVIEW

A. Sufficiency of the Evidence

The sufficiency of evidence is reviewed as follows:

[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. 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.

“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.”

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State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(citations omitted).

Further, “due deference must be given to the . . . trier of

fact to determine credibility, weigh the evidence, and draw

justifiable inferences of fact from the evidence adduced.”

State v. Taliferro, 77 Hawaiʻi 196, 201, 881 P.2d 1264, 1269

(App. 1994) (citing State v. Naeole, 62 Haw. 563, 565, 617 P.2d

820, 823 (1980). On appellate review, this court gives “full

play to the right of the fact finder to determine credibility,

weigh the evidence, and draw justifiable inferences of fact.”

State v. Yabusaki, 58 Haw. 404, 410, 570 P.2d 844, 848 (1977)

(citations omitted).

B. Motion to Suppress Evidence

This court reviews a trial court’s ruling on a motion to suppress evidence de novo:

to determine whether the ruling was “right” or “wrong.” The proponent of the motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and article I, section 7 of the Hawaiʻi Constitution.

Walton, 133 Hawaiʻi at 83, 324 P.3d at 893 (quoting State v.

Spillner, 116 Hawaiʻi 351, 357, 173 P.3d 498, 504 (2007)

(citations omitted)).

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C. Jury Instructions

It is the circuit court’s duty and ultimate responsibility to ensure that the jury was properly instructed on issues of criminal liability. When jury instructions, or the omission thereof, are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.

Walton, 133 Hawaiʻi at 83, 324 P.3d at 893 (cleaned up).

Jury instructions to which no objection was made at trial

will be reviewed for plain error. State v. Ishimine, 151 Hawaiʻi

375, 378, 515 P.3d 192, 195 (2022). “Additionally, this court

will apply the plain error standard of review to correct errors

[that] 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.” Id.

at 378-79, 515 P.3d at 195-96 (quotations and citations

omitted).

D. Prosecutorial Misconduct Plain Error

When a defendant does not object to prosecutorial

misconduct, this court applies a plain error review. State v.

Hirata, 152 Hawaiʻi 27, 30, 520 P.3d 225, 228 (2022).

We 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. . . . Because prosecutorial misconduct impacts the fundamental right to a fair trial, there is no difference between the plain error and harmless beyond a reasonable doubt standards of review.

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Id. at 30-31, 520 P.3d at 228-29 (cleaned up).

E. Pre-indictment Delay

In reviewing a constitutional due process claim of prejudice engendered by preindictment delay, the due process inquiry must consider the reasons for the delay in prosecution as well as the prejudice to the accused. Therefore, a balancing approach is applied, weighing the substantial prejudice to the defendant’s right to a fair trial against the reasons for the delay.

State v. Higa, 102 Hawaiʻi 183, 186-87, 74 P.3d 6, 9 (2003)

(cleaned up).

The appellate court must employ both the “clearly

erroneous” and “right/wrong” tests in reviewing the circuit

court’s denial of a motion to dismiss for pre-indictment delay.

The circuit court’s findings of fact are subject to the clearly

erroneous standard of review, while its conclusions of law are

freely reviewable. State v. Martinez, 101 Hawaiʻi 332, 339, 68

P.3d 606, 613 (2003) (“This court must employ both the ‘clearly

erroneous’ and ‘right/wrong’ tests in reviewing the circuit

court’s denial of a motion to dismiss for pre-indictment delay.”

(citations omitted)).

A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.

State v. Keliiheleua, 105 Hawaiʻi 174, 178-79, 95 P.3d 605, 609-

10 (2004) (cleaned up).

F. Motion to Dismiss Indictment

“A trial court’s ruling on a motion to dismiss an 22  *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

indictment is reviewed for an abuse of discretion.” State v.

Mendonca, 68 Haw. 280, 283, 711 P.2d 731, 734 (1985) (citation

omitted).

The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant. The burden of establishing abuse of discretion is on appellant, and a strong showing is required to establish it. Dismissal of an indictment is required only in flagrant cases in which the grand jury has been overreached or deceived in some significant way.

State v. Borge, 152 Hawaiʻi 458, 464, 526 P.3d 435, 441 (2023)

(cleaned up). We apply this standard in cases involving

allegations of prosecutorial abuse or misconduct before the

grand jury. State v. Taylor, 126 Hawaiʻi 205, 214, 269 P.3d 740,

749 (2011).

When the basis of dismissal alleged is sufficiency of the

evidence to sustain the indictment, a circuit court’s denial of

a motion to dismiss is reviewed de novo. State v. Shaw, 150

Hawaiʻi 56, 61, 497 P.3d 71, 76 (2021). “In reviewing the

sufficiency of the evidence to establish probable cause before

the grand jury, every legitimate inference that may be drawn

from the evidence must be drawn in favor of the indictment and

neither the trial court nor the appellate court on review may

substitute its judgment as to the weight of the evidence for

that of the Grand Jury.” Taylor, 126 Hawaiʻi at 215, 269 P.3d at

750 (citation omitted).

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G. Sufficiency of the Charge

Whether a charge sets forth all of the essential elements

of a charged offense, is a question of law that we review de

novo under a right/wrong standard. Jardine, 151 Hawaiʻi at 100,

508 P.3d at 1185.

IV. DISCUSSION

A. Evidence adduced at trial, viewed in the strongest light for the prosecution, was sufficient to support the jury’s verdict.

Brown challenges the sufficiency of the evidence supporting

his second-degree murder conviction, arguing that the evidence

presented was insufficient to establish “what offense, if any,

he had committed that resulted in Monsalve’s disappearance.” He

concedes that the prosecution’s evidence “reasonably supports

inferring that Brown did something violent to cause Monsalve’s

disappearance.” However, he maintains that “it does not

reasonably support drawing any further downstream inferences

about what he did, much less whether what he did was a fatal

voluntary act or non-fatal one that, coupled with not rendering

or seeking aid, became fatal.” Brown further asserts the

evidence does not reasonably support inferences about Brown’s

state of mind.

The prosecution contends there was sufficient evidence to

establish murder in the second degree. Similar to the no-corpse

murder case, Torres I, the prosecution asserts that the jury

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could infer from the presented evidence that Monsalve’s total

absence after the night of January 12, 2014 and the subsequent

and complete lack of contact or transactions to the present

meant she was deceased. Further, the prosecution argues that

Brown, who told several witnesses that Monsalve was with him at

his apartment before she vanished, thereafter behaved in a

manner supporting a reasonable inference he had intentionally or

knowingly caused Monsalve’s death.

Our case law maintains that in the absence of a murder

victim’s body, circumstantial evidence can be sufficient to

support a finding of guilt beyond a reasonable doubt. See

Territory v. Duvauchelle, 28 Haw. 350, 366–67 (1925) (“Although

the dead body has not been found, and although no witness swore

that he saw the perpetration of the murder, yet the

circumstances extrinsic to the confession, and established by

other evidence, are so strong that they cannot fail to satisfy

any unbiased mind that the accused is guilty of the crime of

which he has been convicted.”).

The Torres I opinion provides a framework to analyze

circumstantial evidence used to prove beyond a reasonable doubt

that a victim’s sudden or seemingly unplanned disappearance did

not comport with their lifestyle and habits, leading to the

conclusion that they were deceased; and that the defendant’s

statements, conduct, and other evidence can establish beyond a

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reasonable doubt that the defendant had acted with the requisite

state of mind to cause the victim’s death. 122 Hawaiʻi at 14,

222 P.3d at 421; State v. Batson, 73 Haw. 236, 254, 831 P.2d

924, 934 (1992) (“Given the difficulty of proving the requisite

state of mind by direct evidence in criminal cases, we have

consistently held that . . . proof by circumstantial evidence

and reasonable inferences arising from circumstances surrounding

the [defendant’s conduct] is sufficient . . . . Thus, the mind

of an alleged offender may be read from his acts, conduct and

inferences fairly drawn from all the circumstances.” (cleaned

up)).

In Torres I, the ICA determined that there was sufficient

evidence of the victim’s death and sufficient evidence the

defendant had caused that death, despite absence of a corpse or

any evidence relating to the manner of death. 122 Hawaiʻi at 14,

222 P.3d at 421. This evidence included: the fact that the

victim was last seen being escorted by defendant, who was

observed wearing his military police uniform as well as a

handgun; and the fact that defendant was apprehended five hours

later in his truck, with a cash bag last carried by the victim,

the victim’s wallet and I.D. card, and the victim’s hairbrush in

the vehicle. Id. The evidence also showed that the victim’s

disappearance “was sudden and apparently unplanned and did not

comport with his lifestyle and habits.” Id.

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We review the sufficiency of the trial evidence in the

strongest light for the prosecution in determining whether there

was substantial evidence to support the trier of fact’s

conclusion as to every element of the charged offense. Kalaola,

124 Hawaiʻi at 49, 237 P.3d at 1115. We also give due deference

to the right of the trier of fact to determine credibility,

weigh the evidence, and draw justifiable inferences of fact from

the evidence adduced. State v. Sandoval, 149 Hawaiʻi 221, 232,

487 P.3d 308, 319 (2021) (cleaned up).

Upon review of the evidence, we hold that the jury could

reasonably infer that Monsalve was deceased and not simply

voluntarily absent for years without any trace, leaving behind

without any contact her children, family, coworkers, and

friends; and that Brown had intentionally or knowingly caused

Monsalve’s death, thereby establishing his guilt of second-

degree murder.

1. There was substantial evidence to support the jury’s conclusion that Monsalve was deceased.

Monsalve’s children, colleagues, and friends testified as

to how abruptly Monsalve’s disappearance occurred without any

forewarning. Monsalve’s daughter testified that after Monsalve

was last seen by her and her brother earlier in the day on

January 12, 2014, and after Brown told MPD he saw Monsalve that

same night, her mother had not contacted her about picking her

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up at the airport when she was scheduled to return to Maui from

Oʻahu on January 14, 2014. Both Monsalve’s daughter and youngest

son testified that they had repeatedly texted and called their

mother on Monday and Tuesday (January 13 and 14, 2014),

uncharacteristically without any response. Monsalve’s son

testified that earlier during the day on January 12, 2014, he

and his mother together attended a college admissions and

financial aid workshop at the local community college. MPD

investigators testified that Monsalve’s checkbook, banking

papers, work identification swipe-in card, college financial aid

paperwork, her children’s birth certificates, and a smashed

cellphone were found soon after Monsalve was reported missing,

in a public park dumpster “.3 miles” from Brown’s apartment.

Monsalve’s daughter testified that the papers also found in the

dumpster included titles to Monsalve’s children’s vehicles, her

children’s birth certificates, and Monsalve’s personal items

including old Mother’s Day cards. And a witness testified that

he had pulled a purse out of that dumpster on the night of

January 13, 2014 and gave it to another person, who also

testified that when she opened this pink Coach purse, she found

a matching wallet with cards and a driver’s license inside, and

that another friend saw the purse and identified it as

Monsalve’s.

Monsalve’s work friends and acquaintances became extremely

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concerned when they realized on Tuesday, January 14, 2014, that

Monsalve had uncharacteristically not called in sick for work or

notified her coworkers of a planned absence on Monday or

Tuesday. One of her friends testified that Monsalve had been

housesitting for his brother, who was set to return on January

14, 2014 from a trip. When this friend went to check his

brother’s house for Monsalve, she was not there. And he became

concerned when seeing that she had uncharacteristically left her

and her son’s personal items in the home, even though Monsalve

knew the home’s owners would be returning that day.

Another friend testified that Monsalve had agreed to house-

and cat-sit for her later that same week, and that Monsalve

would not have disappeared without making other arrangements.

Yet another friend testified that she and Monsalve were making

plans in anticipation of becoming empty-nesters, as both of

their sons were graduating from high school in the spring, and

that Monsalve would never leave her children without at least

contacting them. Monsalve’s son stated that just before his

mother’s disappearance, Monsalve had been planning a May 2014

graduation party for him, and was handing out senior photos to

family and trying to get him scholarships to go to college.

Both of Monsalve’s children testified that they had not

heard from their mother since they last saw her on January 12,

2014. And as conservator of her mother’s estate, Monsalve’s

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daughter testified that there was no activity on Monsalve’s

financial accounts since the day she vanished. Monsalve’s

daughter testified that she and her mother were very close,

particularly since Monsalve gave birth to her when Monsalve was

only eighteen years old. Although Monsalve’s daughter was an

adult, she testified how her mother continued to handle many of

her personal tasks, including making her doctor appointments and

doing her taxes.

Based on the voluminous testimony provided at trial by

investigators, family, coworkers, and friends who knew Monsalve,

the jury could have reasonably inferred that Monsalve had died

on or around January 12, 2014, after she completely vanished

without any explanation, personal contact, or financial

transactions whatsoever, which did not comport with her usual

lifestyle and habits as testified to by witness after witness at

trial.

2. There was substantial evidence to support the jury’s conclusion that Brown had acted intentionally or knowingly to cause Monsalve’s death.

When viewing the evidence adduced at trial in the strongest

light for the prosecution, we conclude that the jury could have

also reasonably inferred that Brown intentionally or knowingly

caused Monsalve’s death.

Brown told the MPD detectives, as well as Monsalve’s

daughter and several of Monsalve’s friends, that he last saw

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Monsalve in his apartment on January 12, 2014; and as he was

falling asleep, he said Monsalve left his apartment between

10:00 and 10:30 p.m. to be picked up by her son. Monsalve’s son

testified that no one asked him to pick up his mother that

night, nor did he do so. That is to say, the evidence presented

to the jury, including Brown’s statements to MPD and numerous

other witnesses, established that Monsalve’s last known physical

whereabouts were in Brown’s apartment, and that Brown was the

last person to see her alive.

Monsalve’s daughter testified she observed a Facebook post

from Brown’s account on Monsalve’s Facebook homepage dated

January 12, 2014 at approximately 7:00 p.m., suggesting that he

was watching Monsalve in his apartment playing the video game

Candy Crush. Monsalve’s electronic data records taken from her

recovered cellphone and her social media account indicated that

her cellphone connected to Brown’s IP address to access the

internet at about 9:08 p.m., which is during the time frame

Brown told MPD detectives Monsalve was physically with him in

his apartment. And despite having told numerous people that he

went to sleep at around 10:00 or 10:30 p.m. on the night of

January 12, 2014, the evidence presented by witnesses’ testimony

and electronic records that Brown was active on his social media

site at approximately 11:00 p.m.

Further, investigators testified that into the early

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morning hours of January 13, 2014, Monsalve’s cellphone

continued to make connections to the internet through Brown’s IP

address until at least 1:04 a.m., hours after 10:30 p.m. on

January 12, 2014, when Brown said Monsalve left his apartment.

As stated, Hawaiian Telcom disclosed to investigators in

response to their subpoena, that the subject IP address was

assigned to Brown’s internet service account during the period

January 1 to March 31, 2014.

Witnesses also testified that Brown told them that Monsalve

had left her car with him the night of January 12, 2014 and

requested that he drop it off at the auto repair shop the next

day because it was “stalling,” even though Monsalve’s son did

not observe any problems with the car on that day.

There was also testimony about Brown’s listing of his

apartment furniture for sale on Craigslist starting January 13,

2014, the day after Monsalve went missing. One of the witnesses

described coming to Brown’s apartment to buy a couch he was

selling, which the witness described as smelling of chemicals.

Another witness who texted Brown in response to the online ad

Brown had posted for a table testified that Brown said he needed

money for rent and electricity because his “roommate ditched

out.” This witness also testified that she had to tell Brown to

“calm down” while she was talking to him. One of Brown’s

friends testified that he called her around 11:30 a.m. to 1:00

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p.m. California time on January 13, 2014, sounding “upset,

panicked, distressed.” She testified that Brown asked her if

she could get him a “burner phone” and that he was concerned

about his phone being tapped. This friend also testified that

when Brown called her a month later, he “wanted to know if I

knew how to or could help him clear a hard drive” on a computer.

The witness who came later in January 2014 to repossess

Brown’s Dodge Nitro testified that based on her experience,

Brown’s vehicle was uncharacteristically very clean for a

repossessed vehicle.

Further, investigators testified that someone attempted to

log in to Monsalve’s Facebook account on January 29, 2014 from

Brown’s IP address, despite there being no word or contact from

Monsalve. Photographs of Brown’s vacated apartment were entered

into evidence, two of which showed a black internet router on

Brown’s kitchen countertop. In a subsequent voluntary telephone

conversation with Detective Satterfield, Brown stated that he

discovered while packing up his apartment that Monsalve had left

his apartment with a pillow and blanket, which he claimed were

now missing.

Additionally, witnesses testified about the extensive

searches for Monsalve organized by family and friends after she

vanished, pointing out that Brown had not participated in any of

the searches. One witness, Monsalve’s former brother-in-law,

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testified that Brown told him that Monsalve very likely went to

a bar in Kihei the night of January 12, 2014, which other

witness noted was not where Monsalve usually socialized with

friends. This witness also described how Brown asked him if he

thought that Brown had had something to do with Monsalve’s

disappearance.

Viewing the evidence in a light strongest for the

prosecution, with deference to the fact-finder’s weighing of the

evidence, we hold that there was sufficient evidence to support

a conclusion that Brown exhibited a consciousness of guilt and

intentionally or knowingly caused Monsalve’s death.

B. The circuit court did not err in denying Brown’s motion to exclude Brown’s January 14, 2014 police interview.

We review de novo a court’s denial of a motion to suppress

evidence allegedly obtained in violation of constitutional

protections of a fundamental right. State v. Hewitt, 153 Hawaiʻi

33, 40, 526 P.3d 558, 565 (2023) (citation omitted).

As noted, Brown was interviewed by MPD Detectives Loo and

Lee at the Wailuku police station on January 14, 2014, the same

day Monsalve was reported missing. Brown asserts that the

circuit court should have excluded the transcript of that

interview “for want of warning and waiver of constitutional

rights required” by State v. Ketchum’s “bright-line rule.”

97 Hawaiʻi 107, 34 P.3d 1006 (2001). The prosecution contends

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that a Miranda warning was not required because Brown was not in

custody.

In denying Brown’s motion to suppress the interview

statement, the circuit court orally ruled there was no Ketchum

violation because Brown was not in custody. 6 We agree.

Based on the totality of the circumstances, we affirm that

MPD did not have probable cause to arrest Brown before, during,

or at the conclusion of the interview, and Brown was not

subjected to a custodial interrogation or an unlawful de facto

arrest. Brown voluntarily came to the police station to speak

with the detectives. Further, questioning by the detectives was

not sustained and coercive and concluded after thirty minutes.

Brown was free to leave, and did leave after the interview

ended.

Under article I, section 10 of the Hawaiʻi Constitution, “a

statement made by a defendant under ‘custodial interrogation’

without a Miranda warning must be suppressed as

unconstitutionally elicited.” State v. Hoffman, 155 Hawaiʻi 166,

169, 557 P.3d 895, 897 (2024). Ketchum set forth the “bright-

line rule” as to when a person is considered “in custody” for

6 Brown notes that the trial court did not memorialize this ruling in a written order.

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purposes of constitutional protections under article I, section

10:

[A] person is “in custody” for purposes of article I, section 10 of the Hawaiʻi Constitution if an objective assessment of the totality of the circumstances reflects either (1) that the person has become impliedly accused of committing a crime because the questions of the police have become sustained and coercive, such that they are no longer reasonably designed briefly to confirm or dispel their reasonable suspicion or (2) that the point of arrest has arrived because either (a) probable cause to arrest has developed or (b) the police have subjected the person to an unlawful “de facto” arrest without probable cause to do so.

Ketchum, 97 Hawaiʻi at 126, 34 P.3d at 1025 (quoted in Hewitt,

153 Hawaiʻi at 36, 526 P.3d at 561) (emphases added).

This court in Hewitt reaffirmed Ketchum’s bright-line rule

that probable cause for arrest, regardless of whether arrest was

initiated, characterizes a person as “in custody” for purposes

of assessing the requirement for a Miranda warning and waiver

for further questioning. Hewitt, 153 Hawaiʻi at 44, 526 P.3d

569. We apply Ketchum’s bright-line rule in assessing Brown’s

argument that he was subject to custodial interrogation on

January 14, 2014.

Brown argued to the circuit court that he was in police

custody for about thirty minutes while the police interviewed

him. However, the record bears out that when Brown was

interviewed that day, Detectives Loo and Lee did not have

probable cause to arrest or detain him. In Brown’s motion to

exclude his statement, Brown asserted that Monsalve was reported

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missing by her family, “mere hours” before he was interviewed.

Reviewing the content and flow of the detectives’ questions to

Brown, MPD had not yet developed probable cause to consider

Monsalve’s disappearance to be criminal in nature, nor to see

Brown as subject to arrest.

Brown does not allege any fact or point to any evidence in

the record demonstrating that MPD had developed probable cause

to arrest or detain him before the interview. Instead, Brown’s

custodial interrogation contention is focused on the nature of

the interview questions and the location of the interview.

The totality of the circumstances with respect to Brown’s

interview includes the place and time of day of the

interrogation; the length of the interview; the nature of the

questions asked; the conduct of the police; and any other

relevant circumstances. Hewitt, 153 Hawaiʻi at 36-37, 526 P.3d

at 561–62 (determining from the totality of the circumstances

whether a defendant is in custody or otherwise deprived of their

freedom of action for Miranda purposes, which includes “the

place and time of the interrogation, the length of the

interrogation, the nature of the questions asked, the conduct of

the police, and all other relevant circumstances” (citation

omitted).).

During the hearing on the motion, Brown’s attorney

characterized the thirty-minute interview as custodial,

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emphasizing the physical dimensions and design of the interview

room. The DPA countered that at the time of the interview, it

was a missing persons case and not a murder investigation, and

that the interview with Brown sought information on Monsalve’s

possible whereabouts.

The place, time, and length of the police interview was at

the Wailuku police station on January 14, 2014, starting at 5:28

p.m. and lasting about thirty minutes. Detective Lee described

the interview room as being “pretty small,” roughly eight feet

by ten feet, windowless, in which both detectives, dressed in

plain clothes with their firearms, sat around a table with Brown

and spoke with the door closed. Brown argued in his motion to

exclude the interview that when he was asked to come to the

station to discuss Monsalve’s disappearance, “[n]o option was

provided for [him] to do a telephonic interview.” At the same

time, there is nothing in his motion reflecting that Brown had

requested a telephone interview.

Interviews that take place at a police station do not alone

trigger Miranda warnings, although the location is a relevant

circumstance to consider when determining if a custodial

interrogation occurred. Here, aside from highlighting the

layout of the interview room, Brown did not allege any

overbearing show of force or other conduct on the part of the

detectives while being interviewed in the room.

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The nature of the questions asked by investigators must

also be considered in examining whether a custodial

interrogation occurred. In State v. Ah Loo, this court

reaffirmed that

[p]ersons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and [has] become sustained and coercive.

94 Hawaiʻi 207, 210, 10 P.3d 728, 731 (2000) (quoted in Ketchum,

97 Hawaiʻi at 123, 34 P.3d at 1022). Fact-finding inquiries and

questioning that seeks to clarify a situation, dispel suspicion,

or assist investigators in deciding upon a reasonable course of

investigatory action is not considered custodial interrogation.

At the beginning of the interview, Detective Loo explained

they were investigating a “missing person” case and proceeded to

ask Brown initial background questions (e.g., his name, social

security number, date of birth, home address, telephone number,

height, weight, hair color, how long he lived on Maui, where he

was born, employment, high school he attended, and whether his

mind was clear). Brown was also asked preliminary questions

about his relationship with Monsalve, with Brown explaining that

he and Monsalve decided to split up two weeks earlier, and that

he had asked her and her son to move out of his place.

Brown was asked when he last saw Monsalve and he told the

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detectives it was on Sunday, January 12, 2014 between 10:00 and

10:30 p.m. that he was at his house on the couch when “[s]he

kissed me goodbye.” When asked if anyone else was home at the

time, Brown said he did not know if his roommate was in her room

or not. When asked what kind of relationship he had with

Monsalve, Brown described themselves as “good friends,” “pretty

good overall” although Monsalve “likes to argue and that’s

probably the extent of anything bad in our relationship.”

Detective Loo then asked Brown about their relationship,

including any history of domestic violence, which Brown stated

they “never even went there.”

The detectives then moved on and asked whether Brown had

spoken to Monsalve’s daughter, whether Monsalve had ever

disappeared like this before, to which Brown replied that “it

wasn’t no big deal,” though he was “upset” because he was

supposed to fly out earlier that day (afternoon of January 14)

to San Jose for a week and that Monsalve was supposed to

housesit for him and watch his cat, “and she never called me

back.”

Brown was then asked about his flights and travel plans;

about his relationship with Monsalve (“we absolutely love each

other,” he replied); about how their relationship ended (“she

would not stay out of the dive bars” and too much arguing); and

whether Monsalve was abusive to her youngest son, whom Brown had

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stated came to pick his mother up after she left his apartment

(Brown answered no).

Detective Loo next asked Brown about one of Monsalve’s

coworkers, where Monsalve worked, and what she did. The

continuing questions ranged for many minutes about Monsalve’s

friendships and how she appeared when he last saw her on January

12, 2014. Brown volunteered that she was a little buzzed, and

left his place after kissing him on the cheek and telling him

she was going to have her son pick her up as he was falling

asleep while watching a movie. He expressly stated, “[Monsalve]

didn’t wanna drive her car back to Kihei . . . because she said

it was running bad” and “she didn’t wanna take my car and said

‘I’ll just have [Monsalve’s son] pick me up.’” Brown told the

detectives that he had no idea how Monsalve actually left his

place and that “[s]he went outside and I figured [Monsalve’s

son] picked her up” and that she had to have been picked up by

somebody because “[s]he would not just walk away.”

Detectives asked about Monsalve house-sitting for friends,

problems she may have had with others, whether Brown heard from

her, places she frequented, her emotional state, talk of self-

harm, what their two-year dating relationship was like, about

his new roommate, the movie he and Monsalve were watching Sunday

night, and (again) if he had any information that would help the

detectives to figure out where Monsalve was. Asked about what

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Monsalve was doing the weekend of her disappearance, Brown

replied that “she spent the whole weekend at my house[,]” and

that on Sunday, she left to go do college paperwork with her

youngest son, returning to Brown’s apartment around “five-ish.”

During this line of questioning, Brown was asked “is there

anything you did to [Monsalve],” to which he answered “No” and

that Monsalve left his house “just fine” on Sunday.

The detectives then moved on and asked Brown additional

questions about whether he could give any information to help

locate Monsalve and whether he had done anything to harm her or

cause her disappearance, which Brown denied. The detective

noted that this was allegedly “out of the ordinary” for

Monsalve, that “the family seem[ed] to think you have something

to do with it,” and that Brown was the last person to see

Monsalve. Detective Loo told Brown clearly that he did not want

the family to think Brown had something to do with Monsalve’s

absence if he had not done something to her, which Brown

affirmed that he did not. The detective marked these

aforementioned questions as “different” than questioning he

would ask Brown if he “thought [Brown] had something to do with”

Monsalve’s disappearance. When Detective Loo asked Brown about

a post Brown made the night of January 12 on Monsalve’s

Facebook, “about Candy Crush and talking[,]” Brown’s voice

sounded concerned. However, the detectives then moved on and

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asked additional questions about Monsalve’s relationship with

her youngest son and whether it was “bad,” “violent” or

“abusive”; if Monsalve owned any other cars; which other friends

Monsalve might be hanging out with; and “anything else you can

help me with as far as finding out where she might hang, who she

hangs out, you know where she might go.”

Brown was further asked whether Monsalve had a Facebook

page, if there were security cameras at his apartment complex,

and whether Monsalve ever went out drinking to the point of

passing out.

Upon conclusion of Brown’s interview with the detectives,

Detective Loo thanked Brown for his cooperation after which

Brown left the station.

Brown’s counsel argued before the circuit court that there

were only “two or three pages of questions pertaining to

Mr. Brown’s personal information, his physical attributes,

whether or not he was thinking clearly, and then about his

relationship with Ms. Monsalve. The remainder of the interview

. . . [was] accusatorial” and coercive. Brown asserted in his

motion that questions about his relationship with Monsalve and

the last time he saw her, questions about whether they

experienced domestic violence together, and questions as to

whether he knew where Monsalve was that evening were more

sustained and coercive.

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When the circuit court denied Brown’s motion, the court

observed that “based upon what Detective Lee has testified, I am

satisfied that at this point there was a missing person report,

and that’s how this was being investigated. I would agree that

. . . the family may have had its own suspicions, but the police

questioning is not of the nature that I find to be an

interrogation.” The circuit court further reiterated that Brown

had voluntarily appeared at the police station, that this was at

the point on January 14, 2014 that a missing person report was

filed with “no indication that any crime had been committed,”

and that Brown was free to leave the station.

In assessing the totality of the circumstances, the circuit

court did not err in denying Brown’s motion to exclude the

interview statement. The interview was not sustained and

coercive nor was it a de facto arrest. Rather, it was general

fact-finding focused on clarifying the situation, dispelling

suspicion, and gaining knowledge into a missing person’s report

received only a few hours earlier to further shape a reasonable

course of investigatory action.

C. The circuit court did not err in denying Brown’s motion to suppress his subscriber name, provided to investigators by Hawaiian Telcom in response to a subpoena seeking information on the account to which Hawaiian Telcom assigned the subject IP address.

1. Subpoenaed Information and Brown’s Motion to Suppress

During the course of its investigation, MPD obtained

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electronic records indicating that posts on Monsalve’s Facebook

account page were linked to Brown’s IP address the night of

January 12, 2014 through the morning of January 13, 2014.

Monsalve’s Facebook data indicated her account was active from

Brown’s IP address on January 12, 2014 at 9:08 p.m. Based on

Brown’s January 14, 2014 interview with MPD detectives, the

investigators established that Monsalve was in Brown’s apartment

on January 12, 2014 from 5:00 p.m. to approximately 10:00 to

10:30 p.m. Additional information obtained by investigators

from Monsalve’s Facebook account showed that her Facebook had a

log-in from that same IP address on January 29, 2014, which was

over two weeks after she disappeared.

Hawaiian Telcom responded to the prosecution’s subpoena

seeking subscriber information on the account to which the

subject IP address 72.253.119.239 had been assigned from

January 1 to March 31, 2014. 7 Hawaiian Telcom identified the

account’s subscriber name as “Bernard A. Brown” and provided a

telephone number, an address, and the account activation date.

Brown filed a motion to suppress the information, which the

circuit court granted in part and denied in part by suppressing

all the information except for Brown’s name. On appeal, Brown

7 Brown describes the subpoena as seeking “subscriber information for the person to whom Hawaiian Telcom assigned that IP address for the first quarter of 2014.”

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asserts that the disclosure of his personal name on his Hawaiian

Telcom subscriber account pursuant to the subpoena violated his

constitutionally protected privacy rights.

The prosecution contends that Brown failed to show that he

had a legitimate expectation of privacy in his Hawaiian Telcom

subscriber name linked to the subject IP address. The

prosecution further asserts that this information was lawfully

obtained through a subpoena issued pursuant to HRS § 28-2.5, and

that Hawaiian Telcom’s release of subscriber and IP address

number information was permissible under HRS § 803-

47.6(d)(2)(D). 8

As discussed earlier, we review the circuit court’s

8 HRS § 803-47.6(d)(2)(D) (2014) parallels a similar federal statute and provides in relevant part:

(2) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to, or customer of, the service (other than the contents of an electronic communication) to a governmental entity only when:

. . .

(D) Presented with an administrative subpoena authorized by statute, an attorney general subpoena, or a grand jury or trial subpoena, which seeks the disclosure of information concerning electronic communication, including but not limited to the name, address, local and long distance telephone billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of the service, and the types of services the subscriber or customer utilized.

HRS § 803-47.6(d)(2)(D) (emphases added). Brown has not challenged the constitutionality of this statute, instead challenging the statute providing county prosecutors the authority to issue administrative subpoenas, HRS § 28-2.5(b).

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decision de novo under a right/wrong standard.

2. Brown had no Fourth Amendment protection of his subscriber information provided to a third-party internet service provider and its link to the subject IP address.

Brown argues he had a protected privacy interest in his

Hawaiian Telcom subscriber name and its connection to the

subject IP address under the Fourth Amendment to the United

States Constitution. Brown’s contention is not supported by

federal statute or case law.

Under 18 United States Code (“U.S.C.”) § 2703(c)(2),

Congress mandated that “a provider of electronic communication

service or remote computing service shall disclose to a

governmental entity,” upon issuance of an administrative

subpoena, subscriber or customer information including their

name, address, telephone number(s), records of connection and/or

session times, length and type of service used, and subscriber

“identity.” 18 U.S.C. § 2703(c)(2) (emphasis added).

Further, federal case law does not lend support to Brown’s

position. In United States v. Perrine, 518 F.3d 1196, 1204

(10th Cir. 2008), the defendant asserted his internet subscriber

information, including his name, was protected by the Fourth

Amendment. Id. at 1204. The Tenth Circuit Court of Appeals

definitively noted, “Every federal court to address this issue

has held that subscriber information provided to an internet

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provider is not protected by the Fourth Amendment’s privacy

expectation.” Id. And in United States v. Forrester, the Ninth

Circuit opined:

e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the “switching equipment that processed those numbers,” e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers.

512 F.3d 500, 510 (9th Cir. 2008) (citation omitted). Federal

case law does not recognize a legitimate expectation of privacy

in a subscriber name or the connection between a name and an IP

address. 9

Brown relies on Carpenter v. United States, 585 U.S. 296

(2018) to postulate that “personal information” maintained by a

third-party wireless company is protected by the Fourth

Amendment. That case is inapposite. The “personal information”

at issue in Carpenter was a wireless carrier’s data that

9 See Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (holding, in a non-criminal context, that “computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person--the system operator”); United States v. Hambrick, 225 F.3d 656 (4th Cir. 2000) (unpublished), affirming United States v. Hambrick, 55 F. Supp. 2d 504, 508-09 (W.D. Va. 1999) (holding that there was no legitimate expectation of privacy in non-content customer information provided to an internet service provider by one of its customers); and United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers. . . . They may not, however, enjoy such an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient.”).

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comprehensively tracked and recorded the physical movements of a

user’s cellphone through that phone’s “pings” to the carrier’s

cell towers. Carpenter, 585 U.S. at 306. Carpenter asserted a

privacy interest in his wireless carrier’s data that had

recorded his past travels. Id. at 302. The Carpenter court

framed the issue as applying the Fourth Amendment to law

enforcement’s “ability to chronicle a person’s past movements

through the record of his cell phone signals.” Id. at 309. The

Court ultimately held that “an individual maintains a legitimate

expectation of privacy in the record of his physical movements

as captured through [its cell-sites].” Id. at 310. The Court

noted that “there is a world of difference between limited types

of personal information,” like records of telephone numbers

dialed or financial records held by a bank, “and the exhaustive

chronicle of location information casually collected by wireless

carriers today.” Id. at 314.

Unlike cell phone tower information that can provide

detailed surveillance of an individual’s physical movements,

Brown’s personal name is not revelatory in the nature and scope

of Carpenter’s real-time cellphone tower geolocation

information. Because of this kind of tracker surveillance,

Carpenter provided a narrow limitation of the third-party

doctrine with respect to excessively revelatory and intrusive

personal customer information obtained from a service provider’s

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cell phone tower data.

Thus, federal authorities do not support Brown’s contention

that he had a Fourth Amendment protected privacy right in his

name and its connection to the subject IP address that Hawaiian

Telcom assigned to his account.

3. Under state law, Brown did not establish a legitimate privacy interest in his subscriber name and its link to the subject IP address.

The circuit court observed that the subject IP address was

obtained from the data on Monsalve’s cellphone. The same IP

address was linked to Brown’s Facebook account in Facebook’s

records, which Brown did not challenge.

The circuit court noted in ruling on Brown’s motion to

suppress:

[T]here’s an IP address. It’s on [Monsalve’s] phone. [The investigator] could access through subpoena duces tecum only the information from providers that this is an IP address and this is the account to whom it belongs. Where that router is located, that’s not part of it. . . . To whom was that IP address assigned? Well, it’s associated with an account for Bernard Brown . . . and it’s Hawaiian Telcom, and that’s it. But not as to the address, not as to any of those other things. So it’s limited to that area of coverage.

(Emphasis added.) Thus, other than identifying Brown as the

person whose name was on the account to which the IP address was

assigned, the circuit court suppressed all the other information

including the account’s street address, telephone number, and

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account activation date. 10

Brown accurately states that under article I, section 7 of

the Hawaiʻi Constitution, an individual may still retain an

expectation of privacy in information disclosed to a third-

party. It is well-established that our state constitution may

set higher protections of a person’s fundamental rights than

those set by the federal constitution. See State v. Curtis, 139

Hawaiʻi 486, 497, 394 P.3d 716, 727 (2017).

During the pre-trial suppression hearing, the prosecution

argued that Brown had to first establish an actual subjective

expectation of privacy in his subscriber information, and

second, to show that society recognizes that expectation as

being reasonable. This is correct. As we reiterated in State

v. Bonnell, and reaffirmed again in Walton, this court

has adopted the following two-part test, borrowed from the concurring opinion of Justice Harlan in [United States v. Katz], 389 U.S. [347,] 361, to determine when a person’s expectation of privacy may be deemed reasonable: “First, one must exhibit an actual, subjective expectation of privacy. Second, that expectation must be one that society would recognize as objectively reasonable.”

75 Haw. 124, 139, 856 P.2d 1265, 1273-1274 (1993); see also,

Walton, 133 Hawaiʻi at 96, 324 P.3d at 906.

The prosecution asserted before the circuit court and

reiterates on appeal that Brown failed to “factually establish”

10 The record reflects that Brown’s home address was already known to Monsalve’s children, friends, and MPD.

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that he “held a subjective expectation of privacy in the

information” or a reasonable expectation of privacy in the

simple link between his name and the Hawaiian Telcom account to

which the subject IP address was assigned. The prosecution

maintains that Brown “presented no evidence demonstrating that

he had a reasonable expectation of privacy related to his

subscriber information associated with the Hawaiian Telcom IP

address.” They add that “the simple fact of his name [did] not

provide access to ‘[t]he sum of an individual’s private life,’

nor [did] it provide intimate details into a constitutionally

protected area.”

Before the circuit court, Brown did not offer any factual

basis demonstrating an actual subjective expectation of privacy

in his subscriber name, such as a declaration or affidavit

setting forth a belief that he considered such information to be

private and that Hawaiian Telcom would keep his name private, or

that Hawaiian Telcom customers, in general, expect their

subscriber names to be kept private. As the prosecution points

out:

He could have testified that he subjectively believed that his subscriber information was private. He might have presented evidence of Hawaiian Telcom’s policies or procedures to show a privacy interest in the information. Perhaps he could have tried to show that his non-content subscriber information somehow revealed “intimate details” of his life. Instead, he did not present any evidence in support of his motion[.]

Brown appears to first assert an actual subjective

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expectation of privacy in his appellate opening brief, stating

in conclusory fashion that he “disclosed his name and address to

Hawaiian Telcom for the limited purpose of his business with

them, not for further dissemination of either to the police or a

prosecutor for the purpose of prosecuting him.” Brown fails to

provide a record citation pointing to where in the record he

raised or presented evidence, such as a declaration or

affidavit, in support of this purported factual contention.

In Bonnell, defendants were postal workers who were

suspected of gambling in the Lahaina post office. Investigators

installed hidden video cameras in a break room and conducted

twenty-four hour surveillance of the defendants’ activities for

an entire year. 75 Haw. at 131-32, 856 P.2d at 1270-71.

Defendants later moved to suppress the evidence obtained from

the warrantless video surveillance. Id. at 130, 856 P.2d at

1270. During the suppression hearing, defendants established an

“actual subjective expectation of privacy in the break room” for

nine distinct reasons, including that the break room was not a

public place, as it was limited to employees and authorized

visitors; that the room was not visible to the public area of

the post office or from outside the building; that none of the

defendants had ever heard of video surveillance by the police

being used to investigate in the post office; there was no

provision in the employee manual or collective bargaining

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agreement; the room was used to store employees’ personal

belongings; and the defendants did not believe they were subject

to police video surveillance. Id. at 133, 856 P.2d at 1271.

One of the defendants added that “she considered the break room

to be a private place and that only postal employees and invited

guests were allowed to be there.” Id. at 134, 856 P.2d at 1271.

The trial court granted defendants’ motion to suppress the

video surveillance finding that “‘[t]he defendants demonstrated

subjective expectations that they would not be covertly viewed

and videotaped by government agents in their employee breakroom

. . . and that their activities in that area would remain

private.’” Id. at 139, 856 P.2d at 1274.

This court upheld the trial court noting that the

prosecution did not argue that the testifying defendant failed

to establish “her actual subjective expectation of privacy” in

the employee break room. Id. at 141, 856 P.2d at 1275.

In State v. Biggar, we held that a defendant had a

reasonable expectation of privacy in a closed toilet stall. 68

Haw. 404, 408, 716 P.2d 493, 496 (1986). While defendant was

inside a closed toilet stall, a police detective went into an

adjacent stall, stood on the toilet, and peered over the

partition and observed the defendant taking his hand out from a

toilet seat cover dispenser. Id. at 406, 716 P.2d at 494. The

detective later found cocaine in the dispenser after the

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defendant exited his stall. Id. Defendant contended that he

had a reasonable expectation of privacy while in the closed

toilet stall that was violated when the detective looked over

the partition. Id., 716 P.2d at 494-95. Applying our two-part

privacy test, we concluded that “[defendant] exhibited a

subjective expectation of privacy by closing the stall

door. That the door did not close completely did not eliminate

this expectation, since the crack was too small to afford

Detective Peterson more than an occasional glimpse of

[defendant’s] shoulder.” Id. at 406-407, 716 P.2d at 494-495.

In contrast, Brown did not exhibit or present any evidence

to the circuit court of an actual subjective expectation of

privacy in his subscriber name. On this record, we hold that

Brown did not establish an actual subjective expectation of

privacy in his Hawaiian Telcom subscriber name or the link

between his name and the subject IP address. Accordingly, we

affirm the circuit court’s denial of Brown’s motion to suppress

to the extent Brown’s Hawaiian Telcom subscriber name linked to

the IP address was admitted into evidence.

4. Even if Brown had established a privacy interest in his name, the admission of his name into evidence was harmless.

In Walton, this court agreed that under the circumstances

in that case, it was “unnecessary to decide whether . . . [the

defendant] possessed a legitimate expectation of privacy in his

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name because the introduction of that evidence at trial was

plainly harmless.” 133 Hawai‘i at 99, 324 P.3d at 909. Walton

arose from an attempted murder case where a GNC customer club

card, listing only an account number but not a name, was found

at the crime scene. We held that “the association of Walton’s

name with the GNC card served only to establish his presence at

the crime scene. However, that fact was also established by a

wealth of other evidence presented at trial.” Id.

In the instant case, even if Brown had established a

legitimate expectation of privacy in his subscriber name, the

disclosure and admission of his name into evidence was harmless

error.

In deciding whether an error is harmless, this court

considers whether there is a reasonable possibility that the

error might have contributed to the conviction. State v.

Veikoso, 126 Hawaiʻi 267, 283, 276 P.3d 997, 1006 (2011); see

also HRPP Rule 52(a) (“Any error, defect, irregularity or

variance which does not affect substantial rights shall be

disregarded.”).

In the present case, the subject IP address was used to

determine Monsalve’s and/or her cellphone’s location between

January 12 and January 16, 2014. Brown stated in his motion to

suppress his subscriber name that “MPD’s use of the information

they obtained without a warrant was significant because MPD was

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able to take a logging of different IP addresses from

Ms. Monsalve’s accounts to determine where a device was when it

was being accessed.” (Emphasis added.) Thus, the significant

question was where Monsalve and/or her cellphone was when her

phone connected to the subject IP address.

Monsalve’s presence at Brown’s apartment on January 12,

2014 between 5:00 and 10:00 to 10:30 p.m. was established

through Brown’s statements to several witnesses and to MPD

investigators. MPD investigators testified that Monsalve’s

cellphone accessed her social media, email, and other websites

that evening. Specifically, Monsalve’s Facebook records

indicated that her device accessed that site when using the

subject IP address at around 9:08 p.m. while, according to

Brown, she was physically in his apartment. Detective Bigoss

also testified that her Facebook records indicated someone

accessed her Facebook account from the subject IP address at

1:04 a.m. on January 13, 2014.

At trial, Detective Satterfield testified that Brown’s

Facebook records showed that his Facebook account was accessed

just before and just after January 12, 2014, by a device using

the same subject IP address. Brown claimed that Monsalve

physically left his apartment between 10:00 and 10:30 p.m., yet

her cellphone continued to connect to that IP address to access

her Facebook account at least until 1:04 a.m. on January 13,

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2014. 11

Whether or not the subject IP address was linked to Brown’s

subscriber name was irrelevant to determining where Monsalve

and/or her cellphone was when it connected to her Facebook

account on January 12 and 13, 2014 through online access

provided by Brown’s IP address because Brown had already placed

Monsalve in his apartment when the Facebook app on her cellphone

connected to her Facebook account through that IP address at

9:08 p.m.

In his trial testimony, Detective Bigoss explained IP

address functioning in how one accesses the internet using that

number:

when your computer is communicating over the internet protocol [IP] with another device, you’re exchanging packets of data and embedded in these data packets is your IP address and the other computer’s IP address, and that’s necessary to ensure that your data gets to the right place and that other computer’s data gets back to you correctly. If you don’t have those addresses, it doesn’t know where to go and our stuff will just -- it won’t work. You won’t get to CNN. You won’t get to Google. You won’t get your e- mail. So without those -- the addresses are basically the way that everything figures out how to go where it needs to go properly.

Detective Bigoss gave an example of how connections to wireless

networks work in terms of physical proximity. He explained that

if he used a retail store’s free wifi network on his cellphone,

he would not be able to continue using that wifi if he drove

14 Two photographs of an internet service router on Brown’s kitchen counter were entered into evidence for the jury’s consideration.

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away from the store because the wifi would have a limited range.

Before investigators received the subpoenaed information

from Hawaiian Telcom, MPD already knew that Monsalve’s cellphone

had accessed Facebook the night of January 12, 2014 using the

subject IP address to connect to Facebook while Monsalve was in

Brown’s apartment. Investigators testified that Monsalve’s

Facebook account records showed activity through Brown’s IP

address at 9:08 p.m. January 12, 2014 and 1:04 a.m. January 13,

2014. Thus, Brown’s contention that his name allowed MPD to

track where Monsalve’s cellphone was when it accessed his IP

address was immaterial in determining where Monsalve’s cellphone

was when she accessed the internet. Whether or not the subject

IP address was linked to Brown’s subscriber account and his name

was of no consequence to a jury’s reasonable inference about

Monsalve’s cellphone’s whereabouts after 10:30 p.m., when Brown

said she left to be picked up by her son.

For these reasons, we hold that even if Brown had

established a legitimate expectation of privacy in his

subscriber name, the admission of his name into evidence was

harmless as the association of the IP address with Brown’s

residence and its relation to Monsalve’s location was

established by Brown’s own statements and other evidence

presented at trial.

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D. The prosecution did not engage in prosecutorial misconduct when the DPAs used the phrase “we know” during closing and rebuttal arguments.

Brown alleges that prosecutors engaged in reversible

misconduct by repeating the phrase “we know” during their

closing and rebuttal arguments, thus improperly asserting

personal opinion about the evidence against Brown. DPA 1 used

the “we know” phrase once in closing argument to reference Brown

having taken Monsalve’s car to the mechanic shop the day before

she was reported missing. DPA 2 also used the “we know” phrase

several times during rebuttal. Brown did not object to these

remarks, and the circuit court did not address them. As such,

this point of error is subject to our plain error review.

The prosecution contends that the DPAs were using a simple

turn of phrase to argue from the evidence presented at trial.

The prosecution distinguishes the DPAs’ statements in the

present case from State v. Conroy, 148 Hawaiʻi 194, 468 P.3d 208

(2020) and the ICA’s unpublished Summary Disposition Order (SDO)

in State v. Browder, No. CAAP-XX-XXXXXXX, 2023 WL 6940233 (Haw.

App. Oct. 20, 2023) (SDO) (overruled in part on other grounds;

cert. not sought on current issue), because it was simply “a

turn of phrase,” and the DPA’s statements were legitimate

argument drawing reasonable inferences from the evidence adduced

at trial. Unlike the DPA’s assertions in Browder, the

prosecution here argues that DPA 2’s statements of “we know” did 60  *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

not go directly to the elements of the charged crime. Thus,

there was no expression of personal opinion as to the weight of

evidence, no inflammatory remarks of an offensive nature, and no

misconduct.

We agree with the prosecution and hold that the circuit

court did not commit plain error. The DPAs’ use of the phrase

“we know” in the context of those utterances and the evidence

presented in this case, as well as the reasonable inferences a

jury could draw from that evidence, was not prosecutorial

misconduct.

As we discussed in State v. Willis, we define

“prosecutorial misconduct as ‘a legal term of art that refers to

any improper action committed by a prosecutor, however harmless

or unintentional.’” 156 Hawaiʻi 195, 204, 572 P.3d 668, 677

(2025) (quoting State v. Udo, 145 Hawaiʻi 519, 534, 454 P.3d 460,

475 (2019)). We first review allegations of prosecutorial

misconduct to determine whether the prosecutor’s actions were

improper. Id. If so, we must then determine whether the

violation of the right to a fair trial was harmless. State v.

Conroy, 148 Hawaiʻi at 201, 468 P.3d at 215.

In Hirata, this court affirmed that a prosecutor’s

expression of personal belief about witness credibility or a

remark introducing new evidence are distinct instances of

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misconduct. 152 Hawaiʻi at 33, 520 P.3d at 231. “[T]his court

acknowledges that a prosecutor’s improper suggestions,

insinuations, and especially assertions of personal knowledge

are apt to carry much weight against the accused when they

should properly carry none.” Willis, 156 Hawaiʻi at 204, 572

P.3d at 677 (cleaned up).

In Udo, this court stated:

[I]t is well-established that prosecutors are afforded wide latitude in closing to discuss the evidence, and may state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence. In all stages of trial, however, a prosecutor remains bound by the duty to seek justice, not merely to convict.

145 Hawaiʻi 519, 536-37, 454 P.3d 460, 477-78 (2019) (cleaned

up). This latitude is not without limit, as the prosecutor’s

argument must be consistent with the evidence, fairly presented,

legitimate, and with reasonable inferences drawn from the

evidence. Willis, 156 Hawaiʻi at 204, 572 P.3d at 677; see also

State v. Pasene, 144 Hawaiʻi 339, 367, 439 P.3d 864, 892 (2019);

State v. Mainaaupo, 117 Hawaiʻi 235, 253, 178 P.3d 1, 19 (2008).

In Brown’s trial, both DPAs used the phrase “we know” as a

turn of phrase in their review of the evidence brought forward

at trial. As such, we determine that these statements were not

prosecutorial misconduct.

In recapping the electronic data presented to the jury by

investigators, DPA 2 stated, “how do we know [Monsalve’s] phone

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is at the defendant’s apartment throughout Sunday night? We

know that because of the IP address and [Monsalve’s] Facebook

account.” In another statement, DPA 2 noted that Monsalve’s

“Facebook account shows activity on this IP address at 9:08 p.m.

on Sunday night, and we know [Monsalve] was at the defendant’s

apartment because the defendant himself said she was there[.]”

Here, the DPAs’ use of “we know” is distinguishable from

prejudicial statements in Conroy in that Conroy involved a

prosecutor’s significant departure from the evidence presented

and utterance of statements that appeared to use the weight of

the office to go beyond the evidence adduced at trial into

irrelevant and novel opinions or personal experiences of the

DPA. 148 Hawaiʻi at 202-206, 468 P.3d at 216-220.

In reviewing the DPAs’ utterances here, they do not fall

outside the wide latitude afforded to prosecutors in closing to

state, discuss, and comment on the trial evidence and to draw

all reasonable inferences from the evidence. Therefore, we hold

that the prosecutors’ “we know” remarks during closing and

rebuttal arguments, under the facts and circumstances of this

case, were permissible turns of phrase uttered in sentences

drawing reasonable inferences from the trial evidence and did

not constitute prosecutorial misconduct. As such, we find no

plain error.

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E. The evidence did not support a jury instruction on unanimity of acts or a rational basis to instruct on lesser included offenses.

Brown initially proposed jury instructions on unanimity

and the lesser charge of reckless manslaughter, but later

withdrew both requests. On appeal, Brown contends the circuit

court plainly erred in not giving a unanimity instruction and

should have sua sponte instructed the jury on lesser included

offenses. We disagree.

1. There was no evidence of multiple acts as a separate basis for guilt warranting a unanimity (Arceo) jury instruction.

Both Brown and the prosecution initially requested a

unanimity instruction be given to the jury. Brown’s counsel

later withdrew his request, explaining to the circuit court:

In a nutshell, Arceo presented the issue of jury unanimity when there is evidence of multiple acts by the defendant, each of which could be a separate basis for guilt. No such issue exists in the instant case. There has been no direct evidence presented of an act undertaken by Mr. Brown which caused Ms. Monsalve’s death. There certainly has not been evidence presented of more than one act by Mr. Brown which caused Ms. Monsalve’s death. As such, there is no unanimity issue and no Arceo instruction is necessary.

. . . .

[T]he State [must] prove beyond a reasonable doubt that Mr. Brown intentionally or knowingly engaged in conduct, and that by engaging in that conduct, he intentionally or knowingly caused the death of Ms. Monsalve. There is no requirement that the State prove beyond a reasonable doubt how Ms. Monsalve’s death was caused by Mr. Brown. Again, had there been direct evidence presented of multiple acts by Mr. Brown, each of which could have conceivably caused Ms. Monsalve’s death, an Arceo instruction would be appropriate. No such evidence was presented in this case.

(Emphasis added.)

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During the settling of jury instructions, Brown’s counsel

further explained the basis for withdrawing his proposed Arceo

jury instruction:

[W]e all kind of struggled thinking about sort of how to properly instruct the jury in a missing person case, but the bottom line is I think that the State essentially is required to prove how Ms. Monsalve was -- they are required to prove beyond a reasonable doubt that Mr. Brown did intentionally or knowingly cause her death. That’s covered by the instruction that we’re about to discuss, and so note the Arceo instruction would serve no purpose other than to confuse and disorient our jury.

The prosecution agreed.

Before ruling, the circuit court explained to the parties,

[G]iven the facts of this case -- one fact that is undisputable is it’s a missing person; that the focus here is on the intentional or knowing conduct of the defendant, and that’s what the State needs to prove beyond a reasonable doubt, not specifically an act as to -- assuming the jury finds beyond a reasonable doubt that Ms. Monsalve is deceased because that’s the first question that they have to answer. If they answer that question, they must then answer the question, [d]id Mr. Brown knowingly or intentionally cause her death by beyond a reasonable doubt? If they can’t reach that conclusion, any potential facts that would support how that occurred are meaningless. They’re not meaningless for what occurred, but for purposes of the instruction. So I agree with that.

(Emphasis added).

The court accordingly marked the Arceo unanimity

instruction as withdrawn.

Brown asserts on appeal that “[b]ecause the State elected

to submit this case to the jury as an ‘any act’ case, the

circuit court should have given an Arceo specific-act unanimity

instruction.”

In State v. Valentine, where defendant was charged with

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attempted prohibited possession of a firearm, we explained:

The Arceo decision dealt with a situation in which the prosecution had adduced evidence regarding independent incidents, during each of which the defendant engaged in conduct that could constitute the offense charged, and each of which could have been, but were not, charged as separate offenses. Inasmuch as these independent instances of culpable conduct were submitted to the jury in a single count that charged but one offense, we held that a specific unanimity instruction was necessary to ensure that each juror convicted the defendant on the basis of the same incident of culpable conduct.

93 Hawaiʻi 199, 208, 998 P.2d 479, 488 (2000). We further

explained that in order for an Arceo instruction to be required:

two conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed. Moreover, it bears repeating that the purpose of an Arceo unanimity instruction is to eliminate any ambiguity that might infect the jury’s deliberations respecting the particular conduct in which the defendant is accused of engaging and that allegedly constitutes the charged offense.

Id. (emphasis added).

Here, the evidence adduced at trial was not marshalled by

the prosecution to prove two or more “separate and distinct

culpable acts,” as the circumstantial evidence case asserted by

the prosecution provided jurors with sufficient evidence from

which to reasonably infer Brown’s intentional or knowing act or

omission causing Monsalve’s death. As Brown correctly noted in

his request to withdraw an Arceo instruction, the prosecution

did not have to prove how Brown may have caused Monsalve’s

death, and “had there been direct evidence presented of multiple

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acts by Mr. Brown, each of which could have conceivably caused

Ms. Monsalve’s death, an Arceo instruction would be appropriate.

No such evidence was presented in this case.”

We do not find the lack of a unanimity instruction was

prejudicially insufficient, erroneous, inconsistent or

misleading. See State v. Angei, 152 Hawaiʻi 484, 492, 526 P.3d

461, 469 (2023). We hold that an Arceo instruction was not

required.

2. A lesser included offenses instruction pursuant to HRS § 701-709(5) was not required, as there was no rational basis in the evidence presented for a jury to acquit Brown on second-degree murder and convict him of reckless homicide.

HRS § 701-109(4) provides, in relevant part, that an

offense is “included” in another offense when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.

HRS § 701-109(4)(a)-(c).

As to a court’s jury instructions on lesser included

offenses, HRS § 701-109(5) provides, “The court is not obligated

to charge the jury with respect to an included offense unless

there is a rational basis in the evidence for a verdict

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acquitting the defendant of the offense charged and convicting

the defendant of the included offense.” HRS § 701-109(5)

(emphasis added).

This court clarified in Angei that “[j]ury instructions on

lesser-included offenses must be given where there is a rational

basis in the evidence for a verdict acquitting the defendant of

the offense charged and convicting the defendant of the included

offense.” 152 Hawaiʻi at 495, 526 P.3d at 472 (cleaned up).

The trial court did not give an instruction on reckless

manslaughter, and Brown’s counsel withdrew his request for such

an instruction stating, “there is no rational basis for

acquitting Mr. Brown of murder and convicting him of reckless

manslaughter.”

Upon a review of the trial evidence, there was no rational

basis for the jury to acquit Brown of second-degree murder and

convict him of a lesser offense. Thus we hold that the trial

court did not err in not so instructing the jury. 12

F. The circuit court did not err in denying Brown’s motion to dismiss the 2020 indictment for insufficient charging language.

Brown argues that the circuit court committed plain error

in not dismissing the 2020 indictment for insufficient

12 At oral argument, Brown’s counsel presented a scenario that may have supported a finding of recklessness or negligence. However, this sua sponte offering of a fictional scenario that may have occurred was never presented to the jury, nor was it supported by evidence adduced at trial or in pre- trial hearings.

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specificity in charging the voluntary act or omission allegedly

performed by Brown. Specifically, Brown asserts that the

indictment failed to state an offense, as it lacked adequate

detail of the time, place, and circumstances of defendant’s

alleged actions to bring those alleged actions “within the

statutory definition of the offense charged, to show that the

court has jurisdiction, and to give the accused reasonable

notice of the facts.”

The prosecution counters that the substance of the 2020

indictment of Brown for second-degree murder was sufficient

pursuant to the Motta/Wells standard, “under which the reviewing

court liberally construes charges challenged for the first time

on appeal.” The prosecution further contends that there is a

presumption of validity of the charge when trial has concluded

with a conviction; and that a conviction cannot be reversed

based on a defective indictment unless the defendant shows

prejudice or that the indictment could not within reason be

construed to charge a crime. See State v. Wheeler, 121 Hawaiʻi

383, 399, 219 P.3d 1170, 1186 (2009).

The question of whether a charge sets forth all the

essential elements of a charged offense is a question of law

reviewed de novo under the right/wrong standard. Jardine, 151

Hawaiʻi at 100, 508 P.3d at 1185; Wheeler, 121 Hawaiʻi at 390,

219 P.3d at 1177. We agree with the prosecution and hold the

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circuit court did not plainly err in allowing the 2020

indictment to stand. And since Brown raises this issue for the

first time on appeal, we apply the Motta/Wells rule and

liberally construe the charges as required when a criminal

defendant brings an untimely challenge to the sufficiency of a

charge. State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019

(1983); State v. Wells, 78 Hawaiʻi 373, 382, 894 P.2d 70, 78

(1995). Under this rule, there is a presumption of validity and

a conviction will not be reversed upon a defective indictment

unless (1) defendant was prejudiced; or (2) the indictment

cannot reasonably be construed to charge a crime. Wheeler, 121

Hawaiʻi at 399-400, 219 P.3d at 1186-87 (cleaned up).

A charging document is not defective if it includes all the

essential elements of the crime charged and relevant statutory

definitions; and the defendant fails to show they were

prejudiced by the charge. Jardine, 151 Hawaiʻi at 100, 508 P.3d

at 1186. Here, the prosecution charged Brown with murder in the

second degree pursuant to HRS § 707-701.5. The indictment

stated:

That during or about the period of January 12, 2014, through January 13, 2014, inclusive, in the County of Maui, State of Hawaii, BERNARD BROWN did intentionally or knowingly cause the death of another person, to wit, Moreira Monsalve, thereby committing the offense of Murder in the Second Degree in violation of Section § 707-701.5 and subject to Section § 706-656 of the Hawaii Revised Statutes.

The indictment clearly indicates the time, place, and

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circumstances necessary to bring “the transaction” involving

defendant within the statutory definition of the offense

changed. The prosecution alleged Brown’s murder of Monsalve

happened during January 12-13, 2014, in the County of Maui,

where, Brown intentionally or knowingly caused the death of

Monsalve in violation of HRS § 707-701.5, subject to HRS § 706-

656.

In State v. Aganon, this court clarified the elements for

murder in the second degree, including the requisite state of

mind and voluntary act. 97 Hawai‘i 299, 36 P.3d 1269 (2001).

Pursuant to HRS § 702-205 (1993), the elements of the offense

are:

such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:

(a) Are specified by the definition of the offense, and

(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).

HRS § 702-205. We also noted that “not all offenses . . . have

all three possible elements.” Aganon, 97 Hawai‘i at 303, 36 P.3d

at 1273. Rather, “the totality of these various items--the

proscribed conduct, attendant circumstances, and the specified

result of conduct, when specified by the definition of the

offense, constitute the ‘elements’ of an offense. Id. (citing

HRS § 702-205).

With regard to murder in the second degree (HRS § 707-

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701.5),

a person commits the offense of murder in the second degree when the “person intentionally or knowingly causes the death of another person.” Any voluntary act (e.g., physical abuse) or omission may satisfy the conduct element of the offense. The death of another person, as the intentional or knowing result of the conduct, constitutes the result element of the offense.

Id. (emphases added). Pursuant to HRS § 702-204, a person is

not guilty of an offense unless that person acted with the

requisite state of mind with respect to each element of the

offense. Id. at 302, 36 P.3d at 1272.

Brown argues that the indictment does not detail the

“transaction” that took place between Monsalve and Brown to make

that act or omission murder in the second degree rather than

reckless manslaughter, negligent homicide, assault, or no

criminal act. That is to say, Brown is contending the

indictment was required to set forth the exact manner and cause

of Monsalve’s death. Without sufficient detail, Brown contends

he did not have reasonable notice of the facts against him or of

the voluntary act or omission that the prosecution would rely

upon at trial to establish the conduct element of second-degree

murder.

The prosecution asserts that with regard to a second-degree

murder charge, the requirement is that the prosecution prove the

defendant “intentionally or knowingly cause[d] the death of

another person.” Thus, any voluntary act or omission may

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satisfy the conduct element of the offense, which is “causing

the death of another person[.]” Nor “is there a requirement

that the prosecution allege or prove a specific manner in which

said death was caused.”

In denying Brown’s motion to dismiss the 2020 indictment,

the circuit court rightly noted that the prosecution was not

required to establish probable cause regarding the manner or

cause of death. The court explained, “[w]hen drawing every

legitimate inference in favor of the indictment here, it is

clear that a person of ordinary caution or prudence could be led

to believe that the defendant intentionally or knowingly caused

the death of [Monsalve].” The court further noted that the

[e]vidence presented to the grand jury detailed Ms. Monsalve’s everyday life, routines, finances, professional career, future plans, amongst other things. The evidence presented demonstrated that all of these things came to an abrupt stop after the evening of January 12, 2014. Neither her children, Ms. Monsalve’s friends or coworkers ever heard or saw Ms. Monsalve again.

The circuit court also pointed to the evidence presented to the

grand jury that “further demonstrated that the defendant’s

statements about what took place on January 12, 2014 were often

inconsistent with each other and inconsistent with other

evidence presented by the State to the grand jury.”

Under the facts and circumstances of this case, the trial

court did not err given that the charging language includes all

the essential elements of the crime charged, it can reasonably

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be construed to charge a crime, and Brown has not shown any

prejudice.

G. The circuit court did not err in denying Brown’s motion for dismissal for alleged pre-indictment delay because Brown did not show presumptive or actual substantial prejudice.

Brown asserts that the circuit court erred in not

dismissing the case for pre-indictment delay. The prosecution

contends that Brown did not preserve this issue on appeal and

thus waived it; but even if he had preserved it, Brown failed to

meet his burden of showing actual substantial prejudice pursuant

to our case law.

In State v. Higa, this court reiterated that

[w]hen a defendant alleges a violation of due process based on a preindictment delay, the court must employ a balancing test, considering actual substantial prejudice to the defendant against the reasons asserted for the delay. Although the court ultimately weighs these considerations, it is the defendant’s burden to initially establish that he or she has suffered actual substantial prejudice resulting from the delay.

102 Hawaiʻi at 187, 74 P.3d at 10 (citations omitted).

Brown asks this court to “revisit” Higa’s requirement that

the defendant establish actual, substantial prejudice. Brown

presents no cogent reasons to depart or diverge from our well-

established balancing-test analysis.

On appeal, it is the defendant’s burden to establish they

have suffered actual substantial prejudice resulting from the

delay; if they cannot, the inquiry ends. Higa, 102 Hawaiʻi at

187, 74 P.3d at 10. In a claim of pre-indictment delay, “the

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proof must be definite and not speculative in order to establish

prejudice.” Keliiheleua, 105 Hawaiʻi at 180, 95 P.3d at 611

(citation omitted). In Keliiheleua, we held that the

defendant’s pre-indictment delay “did not affect his ability to

present a defense at a trial of [the negligent injury] charge

and, therefore, did not substantially prejudice his right to a

fair trial.” Id. And in State v. Levi, we rejected the claim

that a thirty-one-month delay (two and a half years) would cause

obvious memory loss and that such memory loss would meet the

burden for presumed prejudice. 67 Haw. 247, 249, 686 P.2d 9,

10-11 (1984).

Here, Brown has not offered any evidence to support a

finding that he suffered actual substantial prejudice in his

defense because of the time lapse from 2014 to 2019, when he was

first indicted. The five-year span from Monsalve’s

disappearance to the first indictment is longer than the two-

and-a-half-year period, which we rejected as presumptively

prejudicial in Levi. But as the circuit court noted in its

assessment of whether Brown’s due process rights were violated,

“Although there [were] some changes or change in the way

Mr. Brown responded to the questions, [the court could not]

attribute that any more to a memory loss than you just have

different answers.”

This was a no-corpse murder case, relying entirely on

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circumstantial evidence. And the time between Monsalve’s

disappearance and Brown’s indictment was arguably needed by

investigators and the prosecution to establish probable cause

for second-degree murder. We take judicial notice that HRS

§ 560:1-107(5) (2018) provides in relevant part for probate and

administrative purposes,

An individual . . . who is absent for a continuous period of five years, during which the individual has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The individual’s death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier[.]

HRS § 560:1-107(5). While not evidentiary for the element of

Monsalve’s death, the record here reflects a death certificate

was issued for Monsalve in 2019. In September 2019, the

prosecution convened the first grand jury.

Balancing Brown’s unsupported and conclusory claim of

substantial prejudice from fading memories with the

circumstances of this no-corpse case, the record does not

demonstrate any undue delay on the part of MPD and the

prosecutors or actual substantial prejudice to Brown. We

therefore hold that the circuit court did not err in denying

Brown’s motion to dismiss for alleged pre-indictment delay.

H. The circuit court did not err when it denied Brown’s motion to dismiss the 2020 indictment.

Brown makes several claims of error arising from the second

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grand jury proceedings in 2020: (1) that the circuit court erred

in not dismissing the indictment because the prosecution adduced

excessive hearsay testimony and the witnesses offered improper

victim impact testimony; (2) that the prior dismissal of the

2019 grand jury indictment without prejudice required the

prosecution to present new evidence to the 2020 grand jury; and

(3) that the case presented to the grand jury lacked sufficient

evidence to establish probable cause to indict Brown for second-

degree murder of Monsalve.

The prosecution asserts that Brown’s arguments are “moot

and meritless.” We agree.

The circuit court did not abuse its discretion in denying

Brown’s motion to dismiss the 2020 indictment on procedural

grounds, and upon de novo review of the evidence presented to

the grand jury, sufficient evidence was brought forward to

support a finding of probable cause to charge Brown.

1. The 2020 grand jury proceedings were not procedurally deficient or tainted by prosecutorial misconduct.

a. Grand jury witnesses did not present excessive hearsay evidence as witnesses were unavailable and any hearsay evidence was not offered to better the prosecution’s case.

Hearsay is appropriate and allowed in grand jury

proceedings. In State v. Murphy, we held that when a defendant

moves for dismissal of the indictment based on hearsay evidence,

[t]he preferable practice would be, of course, for the

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prosecution to present witnesses who are able to testify from first-hand knowledge whenever possible. Nevertheless, where the hearsay testimony was not used deliberately in the place of better evidence to improve the case for an indictment, dismissal of the indictment is not required.

59 Haw. 1, 6, 575 P.2d 448, 453 (footnote omitted) (emphasis

added). See also State v. Layton, 53 Haw. 513, 515, 497 P.2d

559, 561 (1972) (holding it is a “policy expression and not . .

. a hard and fast rule” that “hearsay evidence should only be

used when direct testimony is unavailable or when it is

demonstrably inconvenient to summon witnesses able to testify to

facts from personal knowledge” (cleaned up).).

In his motion to dismiss the 2020 indictment, Brown claimed

that Monsalve’s daughter offered inadmissible hearsay statements

about Monsalve’s personal history, good character and

assessments from Monsalve’s employer. Upon review of the

transcript of the December 18, 2020 grand jury proceeding, it is

unclear where Monsalve’s daughter offers this alleged hearsay

testimony, nor does Brown offer record citations in support of

his contentions in his appellate briefs.

In his opening brief, Brown also asserts that the

prosecution “laundered” the testimony of two witnesses, whom

Brown respectively characterizes as a “homeless” man and “a

felon,” by having MPD officers testify about what these two

witnesses would testify about at trial. By implication, Brown

asserts that these witnesses’ identities lessened their

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credibility, and thus required police to testify about what they

would say in order to better the prosecution’s case before the

grand jury. But Brown overlooks that the testifying detective

clearly stated that both trial witnesses were unavailable or

unable to attend the grand jury the day of the proceeding.

On this record, we cannot conclude there was “laundering”

of the prosecution’s case through the grand jury witnesses’

testimony. Further, Brown’s claim of excessive hearsay

testimony before the grand jury lacks specificity, other than

naming every single person interviewed by the testifying police

investigators, without regard to whether each person was

unavailable or not. Thus, we hold that the trial court did not

err in denying Brown’s motion to dismiss the 2020 indictment on

this basis.

b. Grand jury witnesses did not present improper victim impact testimony, as a victim’s habits, routines, and family and community ties is relevant in establishing probable cause in a no- corpse homicide case.

Brown asserts that the prosecution improperly elicited

“victim impact” testimony from grand jury witnesses, which he

raises as plain error. The prosecution counters that this

testimony was relevant to the grand jury’s determination of

probable cause because such testimony “was necessary to show

that [Monsalve] loved [her youngest son] and would not leave him

without a trace.”

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In State v. Riveira, we defined “victim impact” evidence as

relating to a crime’s effect on the person harmed by the crime

or others, including family members, and noted that during

trial, as distinguished from the sentencing context, “a crime’s

after-effects are rarely allowed.” 149 Hawaiʻi 427, 431, 494

P.3d 1160, 1164 (2021). In a burglary case in which the victim

testified about how the crime made her feel, we determined that

the prosecution had “infused the irrelevant impact evidence into

its case” to prejudicial effect. Id. at 433, 494 P.3d at 1166.

In State v. Lora, a sexual assault case, the prosecution

asked the complaining witness, “What was it like [after the

assault] to be examined by a male doctor?” 147 Hawaiʻi 298, 307,

465 P.3d 745, 754 (2020). We held that “the detailed testimony

about the physical examination was improperly admitted by the

court” for lack of relevance to the crime. Id. at 308, 465 P.3d

at 756.

The grand jury testimony Brown challenges in this case does

not mirror Riveira or Lora. Here, given the no-corpse context

of the case, the prosecution had the burden of establishing

Monsalve’s death based on the abruptness of her disappearance,

and what her activities and values were, such that her complete

silence and sudden absence from the lives of her children and

friends and from her job and responsibilities did not comport

with her lifestyle, routines and habits, prior to her

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disappearance. See Torres I, 122 Hawaiʻi at 14, 222 P.3d at 421.

The grand jury witnesses presented details of Monsalve’s

personal relationships, especially with her daughter and

youngest son, as well as her family and work habits, routines,

aspirations, and plans for events in 2014--including celebrating

her son’s graduation and transition to college--which came to a

complete and sudden stop without any warning after January 12,

2014. Testimony about Monsalve leaving loving motherly notes

for her son were relevant to showing the strong bonds she had

with her children, such that she would not leave them without

any contact whatsoever for all the years since her

disappearance.

We conclude that there was no prosecutorial misconduct in

the presentation of grand jury testimony.

2. The circuit court did not err in denying Brown’s motion to dismiss the 2020 indictment, as the 2019 indictment was dismissed on procedural and not evidentiary grounds.

Brown alleges that the circuit court erred in not

dismissing his 2020 indictment with prejudice because the

prosecution “re-shopped the same case it had presented to the

2019 grand jury,” which was dismissed without prejudice. He

asserts that the trial court presiding over his first

prosecution dismissed the indictment for lack of probable cause.

We note that both matters arising from the 2019 and 2020

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indictments were presided over by the same judge. The order

dismissing the 2019 indictment without prejudice did not specify

the reasons or grounds for dismissal. However, during the

hearings on Brown’s motion to dismiss the 2020 indictment, the

circuit court noted:

I remember distinctly grand jury counsel when asked, you know, well, what are we supposed to do here? He said you’re supposed to find probable cause. Well, number one, it’s an incorrect statement of the law, and secondly, grand jury counsel shouldn’t be giving a, quote unquote, jury instruction to the jury. You just explain the law. Grand jury is not to find probable cause. It’s to determine whether the State has established with sufficient evidence probable cause. It’s a very big standard, and that alone was a significant thing.

(Emphasis added.)

In denying Brown’s motion, the circuit court further noted

“a drastic difference between this grand jury proceeding and the

prior one [being] the comments by grand jury counsel in the

prior matter[,]” where “counsel unintentionally misspoke, he

provided the grand jurors with an erroneous statement of the

law.”

On this basis, we find that the circuit court did not err

in declining to dismiss the 2020 indictment with prejudice.

3. The 2020 grand jury had sufficient evidence of probable cause to indict Brown for the second-degree murder of Monsalve.

In reviewing the sufficiency of the evidence to establish

probable cause in the second grand jury proceedings, every

legitimate inference that may be drawn from the evidence must be

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drawn in favor of the indictment and neither the trial court nor

the appellate court on review may substitute its judgment as to

the weight of the evidence for that of the grand jury. Shaw,

150 Hawaiʻi at 61, 497 P.3d at 76.

Here, in denying Brown’s motion to dismiss the 2020

indictment, the circuit court concluded:

[COL] 10. Probable cause is established by the presentment of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. The State has met this threshold.

Upon review of the 2020 grand jury proceedings, and the

circuit court’s findings and conclusions, we hold there was

sufficient evidence presented to the 2020 grand jury under a

probable cause standard to indict Brown for murder in the second

degree of Monsalve.

V. CONCLUSION

Accordingly, we affirm the circuit court’s January 26, 2023

Judgment of Conviction and Sentence.

Randall K. Hironaka /s/ Mark E. Recktenwald for Defendant-Appellant /s/ Sabrina S. McKenna Chad Kumagai for Plaintiff-Appellee /s/ Todd W. Eddins

David Van Acker /s/ Lisa M. Ginoza for Amicus Curiae Attorney General of /s/ Vladimir P. Devens the State of Hawaiʻi

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