State v. Hauge

FOR PUBLICATION The defendant-appellant Steven M. Hauge appeals from the judgment of the first circuit court, the Honorable Marie N. Milks presiding, convicting him of and sentencing him for the offense of burglary in the first degree, pursuant to Hawaii Revised Statutes (HRS) § 708-810(1)(c) (1993).1 On appeal, Hauge contends that: (1) the deputy prosecuting attorney (DPA) committed prosecutorial misconduct, depriving Hauge of his right to a fair trial, by improperly cross-examining Hauge and by stating in closing argument that Hauge failed to ""explain away"" the prosecution's deoxyribonucleic acid (DNA) evidence; (2) the circuit court erred by improperly commenting on the evidence and misstating the testimony of the prosecution's witnesses during defense counsel's closing argument, thereby violating Hauge's right to a fair and impartial trial; (3) the circuit court erred in denying Hauge's motion to suppress the DNA evidence that was obtained in an unrelated robbery case and used in the present matter without Hauge's consent or a judicial determination of probable cause; and (4) the circuit court erred in granting the prosecution's motion to extend Hauge's sentence, pursuant to HRS § 706-662(1) (Supp. 2000),2 from ten to twenty years of imprisonment, inasmuch as the finding that an extended term was necessary for the protection of the public should have been proven beyond a reasonable doubt before the jury. The plaintiff-appellee State of Hawaii [hereinafter, ""the prosecution""] responds that: (1) the DPA's remarks did not constitute misconduct because they neither infringed on the jury's right to evaluate credibility nor shifted the burden of proof to Hauge; (2) the circuit court's misstatement of the evidence during defense counsel's closing argument was harmless beyond a reasonable doubt when considered in light of the entire record and, therefore, did not violate Hauge's right to a fair and impartial trial; (3) the circuit court's denial of Hauge's motion to suppress the DNA evidence was not error, inasmuch as the police were not constitutionally prohibited from using a DNA profile lawfully obtained in a prior case in a subsequent and different investigation; and (4) a jury determination was not constitutionally necessary to extend Hauge's sentence, inasmuch as Hawaii law is consistent with relevant federal precedent, and due process does not require such a determination.